Posted on 03/17/2008 10:45:40 AM PDT by EdReform
The United States Supreme Court has decided only one significant case involving the Second Amendment, and that was almost 70 years ago. Next week, the Court will return to the issue when it hears arguments in District of Columbia v. Heller. This is a test case brought by a D.C. special police officer who carries a gun while on duty. Under D.C.'s extremely restrictive gun control laws, he is forbidden to keep a handgun, or an operable rifle or shotgun, in his home.
The U.S. Court of Appeals for the D.C. Circuit held that these laws violate the Second Amendment. The court concluded that handguns are lineal descendants of founding-era weapons and are still in common use today, so they may not be banned; the court also held that D.C.'s requirement that guns be stored in a mechanically disabled condition is unconstitutional because it prevents them from being used for self-defense.1 The Supreme Court is now reviewing that decision.
The parties presenting arguments next week offer three different interpretations of the meaning of the Second Amendment. D.C.'s argument--that the Second Amendment protects a right to arms only in service of a government-organized militia--does not stand up to historical analysis or textual scrutiny. Heller's position--that the Amendment establishes an individual right to keep ordinary weapons for self protection--is sound but not persuasively argued. And the Bush Administration's position--recognizing an individual right but leaving the government with some large and undefined power to curtail the right--is dangerously vague and legally weak.
Careful textual analysis, along with the relevant historical context, yields a remarkably clear, sensible, and workable answer to the question presented in this case. The Amendment protects an individual right to keep operable firearms for self-defense, which cannot be taken away by federal law...
(Excerpt) Read more at heritage.org ...
Sure. Long before the 19th Amendment was passed, several states granted the franchise to women; for instance, New Jersey (which granted women the franchise at the time of the adoption of the constitution), Wyoming, and Illinois. By the time of the adoption of the constitution, black men were allowed to vote in most every northern state, and in some southern states, including Maryland, North Carolina, and Kentucky.
As I said before, "the People" encompasses everyone, although some states may have--properly--drawn narrower limitations.
Well, no. Even the DC Circuit Court in US v Parker admitted, "To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people”
Today, of course, "the people" include women and blacks. But still not everyone, not even every citizen.
My point in bringing this up is that some say the second amendment protects the right to keep and bear arms for may reasons, including the militia. Hunting and self defense, for example, are also included.
To them I ask, then why did the Founders only protect that right for a small percentage of the population -- essentially only for that group of citizens who qualified to be in a well regulated Militia?
Yes they did because it was for all citizens not just white males 18 to 45.
Ravenstar
You are the one making the extraordinary claim that only some (those with state appointed officers) well regulated militias are covered by the second amendment.
Cite your source.
(Or did you make this up all by yourself?)
Even if this was the case--and it's not, as I illustrated above how non-whites were granted the franchise in a number of instances--that doesn't change the definition of "the people." The states were (and are still, to a lesser extent) free to restrict the ability of the People to engage in certain activities.
Today, of course, "the people" include women and blacks. But still not everyone, not even every citizen.
The problem with your argument is that you don't believe words have objective meanings. They do. Only by equivocating can you reach your conclusion. This is a tactic employed by a lot of folks, not the least of which include Supreme Court justices.
I'm not the biggest fan of Justice Black, but he was dead on when he repeated, over and over, that "no law means no law." Likewise, "the People" means "the People." States are free to restrict certain groups of the People from certain activities, but that doesn't change the meaning of the phrase "the People."
To them I ask, then why did the Founders only protect that right for a small percentage of the population
As I've stated repeatedly, I reject your premise. I'm not interested in debating your conclusion when your premise is invalid. The People in the Second Amendment is everyone. States, to the extent that their own constitutions don't protect the right to bear arms, were free to restrict the ability of the People to bear arms, however, including limiting the ability of certain groups to bear arms--blacks, women, whatever. Some of this has been changed by the 13th and 14th amendments, but that's neither here nor there for this discussion.
Do we agree the 2nd amendment provides the right to keep and bear arms for the citizens and not just the militia?
The "well regutated Militia" of the second amendment is the same militia as referenced in Article I, Section 8 of the U.S. Constitution.
Are you saying it's not?
So you're saying the term "the people" is generic and means different things in different parts of the U.S. Constitution? In the second amendment it means "all persons". Well, that would include slaves, the Indians, the insane, foreigners, etc.
"The problem with your argument is that you don't believe words have objective meanings."
I am giving it an objective meaning -- the enfranchised body politic. Period.
YOU are the one asking for flexibility.
"The People in the Second Amendment is everyone. States, to the extent that their own constitutions don't protect the right to bear arms, were free to restrict the ability of the People to bear arms"
The second amendment protects everyone, but the states were free to narrow down that list. An ACLU wet dream, you are.
Agreed. That wasn't hard.
I am giving it an objective meaning -- the enfranchised body politic. Period.
Ok. As we've already determined, that was defined by the several states and often included more than white males, contrary to what you've argued.
The second amendment protects everyone, but the states were free to narrow down that list. An ACLU wet dream, you are.
Here you go playing fast and loose with words again. I haven't said anything about the Second Amendment's protections. But yes, as part of Our Federalism, the States should be properly understood to have the just authority to abridge any behavior it so chooses. I really don't see this as being a particularly complex concept, but if you need me to explain Our Federalism to you, I could try.
As far as the ACLU goes, I don't hear too many ACLU attorneys arguing that the states have the just power to restrict groups of people from voting. Do you?
And by the way, when I said "people" in my penultimate sentence, I meant more than just white males. I wanted to be clear because I know this has been a troublesome concept for you.
I am saying before militias are called into service, and before they have state apointed officers they are valid unorganized militias according to Title 10 Armed Forces, Chapter 13 The Militia, Section 311 (b) classes of the militia of the current US code and have a right to keep and bear arms.
You claim in variance to the law cited above that there is no legal unorganized Militia. Please cite an opposing reference, or drop the nonsense.
I also claim that the people, independent of militia service, have a right to keep and bear arms. (which I believe you clearly dispute.)
I did not. There is a legal unorganized Militia. It's just not protected by the second amendment.
If you were to read the second amendment, you'd see that it refers to a "well regulated Militia", not to a bunch of unorganized, untrained, undisciplined, out of shape weekend warriors who get together once a year to play army and shoot up the woods.
"I also claim that the people, independent of militia service, have a right to keep and bear arms."
As do I. And their right is protected by their state constitution.
The Founders protected the RKBA of slaves? The Indians?
Obviously you're not serious and I'm wasting my time. See you on the next thread.
“If you were to read the second amendment, you’d see that it refers to a “well regulated Militia”, not to a bunch of unorganized, untrained, undisciplined, out of shape weekend warriors who get together once a year to play army and shoot up the woods.” -RP
If you were to read the Second Amendment, you would find that it protects a right of the people.
And you consistently fail to provide ANY justification thereof (other than your own commentary).
... as part of a well regulated Militia.
At least, that's what I found.
The second amendment refers to "a well regulatred Militia" not "a militia" or "an armed citizenry".
Come on! You ask me, "Where do you get that?" and it's right there in the second amendment.
That is a subordinate reference to a subset of “the people” in the operative clause. It is “the people” who have the right, and only by a broad exercise of that right can we achieve the much narrower “well-regulated militia”.
You mean that’s what you imagined.
Well, since the well regulated Militia were adult, white, male citizens and "the people" were adult, white, male citizens, I don't know where you get that one is "narrower" than the other.
Do you?
At minimum, “the people” included at least some non-able-bodied and elderly citizens, and includes other individuals who are not actively serving members of the militia (considering your frequent insistence that the “unorganized militia” does not enjoy 2nd Amendment protections).
Nowhere are the two equated as literally the same group. They may overlap significantly, and linguistic efficiency may refer to them interchangeably for assorted reasons, but they are not literally the same group.
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