Posted on 03/13/2006 2:39:12 PM PST by Atlas Sneezed
The Second Amendment of the U.S. Constitution reads: A well regulated Militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed. What does that mean exactly? Some 220 years later, legal scholars are still trying to figure it out.
The National Rifle Association supports the view that the Framers were speaking about individual rights when they wrote “the right of the People.” Gun control advocates have argued for the states’ rights model, which deems the key phrase “a well regulated militia,” and speaks only to a collective right that could be exercised by citizens rallying against federal tyranny or outside aggression.
Robert Weisberg, Edwin E. Huddleson Jr. Professor of Law at Stanford, says there is little consensus among academics about what right the amendment protects. “Some significant percentage of legitimate scholars would say there is substantial support for individual rights, though none of them would say it’s an absolute right. And there are plenty of legitimate scholars who say that constitutional history points the other way. Then there are some in the middle who just think it can’t be resolved: it’s unanswerable,” says Weisberg, who organized a two-day conference on gun control issues last fall.
Much of early American law was cribbed from British legal principles, including the notion that “rights” were synonymous with duties of citizenship. In the context of gun ownership, the language that speaks to persons bearing arms could be referring to citizen conscription in a time of need. A militia member was “an important civic figure, sort of a model citizen” whose willingness to take up arms against an occupying army was seen as essential to the security of the state, Weisberg says. Viewed through this historical portal, the idea that an armed militia extends gun rights to individuals is “an artifact of a model of citizenship that no longer exists.”
But Weisberg says one also could argue persuasively that owning guns for protecting the village or protecting one’s home are virtually indistinguishable. “Gun owners don’t lose their identities as individuals because they are members of a militia. There is a very close relationship between owning guns as part of the militia and owning guns period,” he notes.
In an influential 1989 article in the Yale Law Journal titled “The Embarrassing Second Amendment,” Sandy Levinson, JD ’73, a professor of law at the University of Texas, frames the issue by acknowledging the problem. “No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions,” he wrote.
Levinson, though loath to give comfort to gun advocates, concludes there is ample evidence that the authors of the Bill of Rights were protecting citizens’ right to resist tyranny by use of force. Despite societal changes that would seem to render the notion of a militia irrelevant, he writes, “ ...it is hard for me to see how one can argue that circumstances have so changed as to make mass disarmament constitutionally unproblematic.”
The Supreme Court has done little to settle the matter. The case most often cited in the debate is United States v. Miller, et al, (1939) in which the Supreme Court reversed a lower-court ruling that had thrown out an indictment against two men accused of illegally transporting a sawed-off shotgun across state lines. The court said the law against the modified weapon was constitutional because a sawed-off shotgun has no “reasonable relation to the preservation or efficiency of a well regulated militia.” As is often the case when debating the Second Amendment, both sides claim Miller supports their argument.
One view maintains Miller aids the states’ rights model because the ruling implies that gun rights are only protected in the context of common defense. The other side counters: what if the weapons in question had been bazookas instead of sawed-off shotguns? The court might have ruled differently, they say, because it would be hard to argue that sort of weapon wouldn’t be useful to a state militia.
I told you where the federal government may NOT infringe when it comes to the RKBA. The federal government is free to infringe elsewhere, if of course they have the constitutional power to do so. (For example, the federal government, under the commerce clause, banned certain assault rifles.)
Now, please tell me what point you're trying to make. You're confusing me with your "federal regulations" and state "police departments" -- I really don't understand what you're getting at.
We are.
Good Quote from Jefferson,worth repeating.
Don't recall seeing it before. Lot of good common sense there.
Thanks tet68.
As did the courts.
"You claim a "home rule majority" can ban handguns."
Only a few states have home rule, and home rule applies to more than guns. But if the state constitution allows it, and if the state has home rule, then of course a city may ban handguns. Chicago does. New York does. LA does.
"And if a local home rule majority does not protect your right to own a handgun, for example, "-- you have nowhere to turn. --";"
Correct. This is called "people deciding amongst themselves how they will live". Oooooh, scary concept, huh?
Gee, that means you don't get to tell them how to live. Poor baby!
Those millions of us who are already armed, that's who.
It wasn't a mistake- or superfluous- at the time. The desire to protect their militias from federal abuse of the new power to arm them was universally cited as an objection to ratifying the Constitution.
The clause is neccessarily there to make it clear that the amendment also protected the states' militias.
Fourteenth amendment expansion of federal powers over the states has led to a debate over "individual" or "collective" RKBA. But there is no historical basis for claiming the Second addressed protecting only one from the federal government. The "debate" is totally an artifact of developing Fourteenth Amendment doctrine.
What Levinson is admitting, indirectly, is the uncomfortable conclusion that the 2nd enumerates ( i.e. acknowledges ) the right of every Tom, Dick, and Harry to bear arms, government nervousness notwithstanding.
The actual structure of the English is clear. Even the most cursory glance at the debates supports the language.
They can't be much of legal scholars then,Because it surely wasn't written in code.
It means "EXACTLY" what it says.....
The "RIGHT" of the people to keep and bear arms "SHALL NOT BE INFRINGED"
The part about the " well regulated Militia being necessary to the security of a free State" is only one of the reasons for it,But not the only reason for it.
You've said that the federal government cannot infringe on a states right to arm its militia(s).
Could a state declare that the entire population is a militia?
Do you have a constitutional definition of militia to offer?
Not exactly. The Feds have to prove that the assault wepon in question will cross state lines. A fine point, I'll admit, but true none the less.
It is similar to driving without a license on private property. If you only drive that vehicle on your land, there is no way in heck that you can be cited ( yes, I know, there are some cases in which this has been prosecuted--a vigorous challenge would shoot it down ).
You've said that the federal government cannot infringe on a states right to arm its militia(s).
Could a state declare that the entire population is a militia?
Do you have a constitutional definition of militia to offer?"
The militia was understood to be the body of the people, bearing their own arms ( firearms ). The state can declare the moon is made of green cheese, but that does not mean that a State can declare the right to bear arms null and void.
Where the State ( at least until the early 20th century ) had some discretion is in the training and commitment of forces to a Federal initiative.
You weren't. So I won't ask again. I'm sure you're not...
Very sure...
...
As I stated before, if the state contitution allows it a state may ban certain categories of guns -- all handguns or all machine guns or all assault rifles -- but they may not ban all guns. I haven't fully researched it because it's never come up, but it has something to do with the state interfering with an armed militia which is necessary for the defense of the state and the United States, something like that. I would imagine the U.S. Supreme Court would intervene. But, short of that, no, the USSC refuses to consider cases involving state laws on guns.
Wow! -- Robertpaulsen finally admits that the USSC can actually defend our RKBA's, "-- or something like that --".
Although you then claim a home rule majority" can ban handguns.
Only a few states have home rule, and home rule applies to more than guns. But if the state constitution allows it, and if the state has home rule, then of course a city may ban handguns. Chicago does. New York does. LA does.
Where in the US Constitution is this 'home rule' power to ignore an individuals rights to life, liberty or property mentioned bobby? Aren't you ignoring the 14th amendment?
And if a local home rule majority does not protect your right to own a handgun, for example, -- you have nowhere to turn?
Correct. This is called "people deciding amongst themselves how they will live".
We did that with the US Constitution, bob. It's the Law of the Land, as you will not admit.
Oooooh, scary concept, huh?
Only for you majority rule socialists bobby.
Gee, that means you don't get to tell them how to live. Poor baby!
Poor confused fella, you're telling us we can't have guns, and claiming the opposite. -- Get help paulsen, - your infantile trolling is really getting old.
The BOR was enunciated to satisfy certain interests during the Constitutional process. The BOR also included a disclaimer that it was not to be perceived as the entire list of unalienable rights..., as I read the history.
Here is the link. Spread it around:
http://www.firearmsandliberty.com/unabridged.2nd.html
You are quite welcome. Your screen name is a good one. I have many old possums in my back yard at any given point. They are adept at surving my dogs.
My state constitution says "the right of the citizen to bear arms in defense self and the state shall not be questioned". The feds are clearly infringing on my rights and my state's rights with their demands for registration and restrictions on the type of firearm I need. >
"For example, the federal government, under the commerce clause, banned certain assault rifles".
So under your theory about the commerce clause, the government would be free to ban any and all weapons if the government so wanted to.
What's an assault rifle anyway? The real definition?
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