BANG
The Bill of Rights.....are they rights of the state? Are they all OF, FOR & BY the people...everyone of them EXCEPT the 2nd?
This tired argument doesn't hold water. Besides, THE PEOPLE were/are THE MILITIA.
I'm not sure where the Constitution specifies "small arms". Was private ownership of cannons permitted by the founders?
To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.
John Jay, Federalist No. 2, 1787
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."
-Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers
On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.
Thomas Jefferson, letter to William Johnson, June 12, 1823
Civilian merchant ships had cannons. Gatling and full auto guns weren't "restricted" until the NFA of '34. I'd say the 2nd Amendment covers quite a bit more than just rifles, pistols, and edged weapons.
ping later
Bump for future reference.
And so y'all agree to appoint another tyrant, another beyond Sarah Brady, to define a cannon's caliber. Is .50 inch an 'arm' or a cannon?
Is a .223 inch bursting charge fired from an 'arm' or a cannon? Come come, lets be specific about the hairs we split.
Which part of 'infringed' do you not understand? Or are y'all Narional Reasonable-regulation Ass. members or worse?
FYI-Z
All gun laws are unconstitutional. If I want to park an fully loaded A-10 in my yard as long as I can afford it it is non of the Govt. business.
Let's see campaign finance restrictions designed to stifle Republicans right to free speech, gun control laws, court decisions against public display of 10 Commandments and Christmas trees, laws against "marriage"......hmmmmm.....I gues the democrats don't take civil liberties seriously, even though their holly grail is a woman's rigth to "privacy" and abortion.
Another major figure in modern constitutional law is Harvard law professor Lawrence Tribe who is anti-gun and a liberal. Earlier versions of his famous text endorsed the states'-right view, but, having examined the historical evidence for himself, he now reluctantly admits the Amendment guarantees "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." [Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000)].
You mean it doesnt have to do with the hunting sports?
Collective-right ping! ;-)
Right. It says right there: ' . . . the right to bear arms, but not concealed, shall not be infringed.'
That clears that up.
Actually, it says ' . . . the right to bear arms, but not concealed or ugly-looking, shall not be infringed.'
Which was amended again to read, '. . . the right to bear arms, but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.'
Again, amemded to read, ' . . . the right to bear arms, except on Monday, but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.'
Later amended to read: ' . . . the right to bear arms, except during the month of December, but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.'
Amended again to read: ' . . . the right to bear arms, except during years ending with an even number and all months which are spelled with an a,e,i,o, or u; but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.
The amendment expressly protects both.
Most of the discussion at the time centered around the state rights, but individual rights were also mentioned. Many militias were self armed.
States supplied cannon and ships for their milita- perhaps individuals did, that would seem likely especially on the frontier. That was to be protected too, expressly to prevent the forming of a standing army. A militia that would be able to do the job of a standing army could not be limited to small arms.
While a generally good article, I disagree with Kates on a few points:
1) The "organized" militia is not, IMHO, the average Joe and his friends and neighbors involved in training and drills. The organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe), yet not part of the actual armed forces. Today's equivalent would be the National Guard of the various states, in their unfederalized capacity. The moment they are federalized, they become part of the armed forces. In fact, the U.S. Code currently defines the National Guard as the "organized militia," and a 1990 Supreme Court case specifically ruled that the NG of a state, at the moment of and duration of its federalization is part of the regular armed forces for Constitutional purposes.
2) "The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered."
Wrong, esp. with regard to cannon and warships. The Constitution specifically grants Congress the authority to grant Letters of Marque and Reprisal (Article I, Section 8). This basically means that Congress can grant some private citizen (or any number of them) the right to be privateers (i.e. pirates). This was done in order to be able to destroy or hijack foreign warships or merchant ships, as an aid to the US Navy. How, exactly, does Mr. Kates think that a private citizen could hijack a foreign vessel loaded with valuable cargo without cannon? How, in today's world, could one do so without an armored ship of some type? IMHO, the rights protected by the 2nd Amendment include the right to own armed warships. However, Congressional authority to grant Letters of Marque and Reprisal indicates that the ability of a citizen to USE those weapons (i.e. non-small arms) in a hostile fashion is subject to limitation. Thus, Bill Gates can buy himself a carrier task force if he is so motivated and can write the check for it. Using if for anything other than steaming around from place to place is another matter, but the right of ownership and possession is, IMHO, beyond question. Similarly, if someone who can afford it wishes to buy an RPG or grenades, I don't have a problem with that.
Let's think about this a bit: The Federal Government has an unchallenged right/power to own nuclear weapons, bombers, MOABs, rapid-fire naval cannon, submarines, etc. From where, exactly does that authority originate? The answer is in the first 3 words in the Constitution: "WE THE PEOPLE." I fail to understand how it is legally able to own something that we are prohibited from owning.
3) "Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)"
On the surface, this makes sense. However, what would happen if the government made very minor infractions (like speeding on an Interstate Highway, or owning a gun when subject to a restraining order during a divorce - not using it, just possessing it) into felonies? What if states said that similarly minor offenses (like fighting in a bar where no one uses a deadly weapon and no one is hurt badly) were felonies? In that situation, large segments of the population would be (and, to date, HAVE BEEN) disarmed. No sir, I think that only someone convicted of a VIOLENT felony (i.e. rape, murder, arson, etc.) who is either in prison or on parole should be denied the right to self defense. Once the person's debt to society is paid, their rights should be restored (and if some people can never be reformed and will always be a threat to the public safety, then why the Hell are they being released from prison in the first place)?
4) I disagree regarding registration and licensing, at least as long as the concepts of government being able to ban guns or gun ownership exist (i.e. always). There have been innumerable incidents in which registration lists of guns or gun owners have been used to confiscate guns and jail/murder their owners (even in the US, except for the murder part). Nope, as long as people who attend a place of worship and their bibles and various religious articles cannot be registered because the 1st Amendment prohibits such a thing, then neither can gun owners or guns be registered.
The only recording that I would permit would be letting the government record exactly which militia members actually possess the government-issued service rifle or handgun at home at any given moment in time. The Swiss, whose militia system our was modeled on, do this, so I guess that I'd permit it here. Such a thing would enable a more rapid callup of the troops in the event of a national emergency. Of course, I'm not holding my breath waiting for the Feds to hand out full auto M-16s free of charge to the general public, but such is the ONLY circumstance where I'd Constitutionally permit any kind of registration of firearms or their owners.
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