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.
Where's RP hiding?
Some 220 years later, legal scholars are still trying to figure it out.
Apparently "legal scholar" is code for dumb as a rock?
All rights not specified in the Constitution were given to the States, or the People.
This is a guaranteed right to the People. The security of the State is guaranteed by the right of the People to keep and bear arms. A militia would be an offshoot of this. Can't have a militia, or an army for that matter, without people who are armed, can we?
Without the right of the People to bear arms, the security of a FREE STATE would not be under warranty under the Constituion.
The State remains free according to our founders only if the right of the people to bear arms is not infringed.
Shall. Not. Be. Infringed.
Questions?
cross reference the Letters of Marque and Reprisal clause, ponder the implied state of civilian arms ownership required for that Congressional power to make any sense at all, and then look again at the phrase "the right of the people to keep and bear arms shall not be infringed"
seems pretty thunderingly damned cut and dry to me.
...AND, look at the basic meaning of the term "militia" - all able bodied men at least 17years old, fit to be summoned by community or state to serve in times of local or state emergency, either as a military force or as an emergency work force. similar in many ways to ad-hoc deputization.
the "militia" is NOT a standing military force.
it is THE PEOPLE.
exactly. see also #126 and 127
archive #86
Nope, it isn't all that difficult at all.
The federal Constitution is a remarkably concise and clearly crafted document, the reading of which can be accomplished during the leisurely consumption of two bottles of beer.
Any questions of denotation are easily settled by consulting contemporary associated documents.
And, for those MORONS who think the Constitution is a "living document", a simple rejoinder:
1. the Constitution is the basis for this republic's government. It explicitly defines what the government may do, and clearly states that the government may NOT overstep those bounds. On this there can be no argument.
2. That document was crafted by the founders, using the language and denotative meanings of their time. To alter the meaning of the document, it is necessary to alter the wording or content of that document. On this there can be no argument.
3. the Constitution lists precisely TWO means by which it can legally be altered: Amendment, or Convention. The fads of public opinion and the vagaries of linguistic decay do not qualify as either means, nor do the rulings of the judiciary, nor the legal impositions of the legislature, nor does the fiat of the executive. ONLY TWO MEANS are legal, and neither have been applied to alter the meaning of the Second Amendment. And about this there can be no dispute.
It truly appalls me that there is any debate on this matter - it is simply far too clear and plain to be debatable, and yet... there is debate.
I am left to suspect that those who *would* debate this matter are spurred by foul motives.
I must say, this thread has been one of the more informative and enlightening threads to come out of FR in a long time.
More importantly, they should bother actually READING the other amendments, include the one they hold most dear, the first Amendment. They will see that within the first ten amendments, ratified together, there ARE distinctions between individual rights and state rights. When state rights are being discussed, the word "state" is used. In addition to that, when the words "the people" are used, in every other amendment, those words are nonsensical if applied to the states.
One MUST come to the conclusion that the second amendment applies to individual rights!
Mark
What you said X 10!
Does anyone suppose that the folks writing the 2nd Amendment in the late 18th century envisioned the type of "arms" we have available today in the 21st century?
And...if they could have, do you suppose the 2nd Amendment would have read exactly the same way?
Hmmmmmmmmmmm????????
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.
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!
Supernatural asks:
"-- Where's RP hiding? --"
Our "poor baby" is, - typically, - taking some time off, -- he likes to troll FR to see if he can stir up any radical reaction, & then sit back and gloat, imagining that he's gotten his agit-prop points in play.
-- Weird tactics, weird fella.
RP is a strange dude who seems to delight in the seeing the government jackboot on citizens' necks. He goes out of his way to justify their actions.
To be intellectually consistent, you would have to ask the same question about the First Amendment protections given to the press and ask if the founders could have envisioned radio, tv, the blogosphere, etc. Would the first amendment have read the same way?
In short answer to your original question, yes. I fervantly believe they would have written it that way, and furthermore, if they had foreseen the degree of doubt and ambiguity many would cast upon its intent, they would have probably worded it far more strongly in support of the individual. I say this not out of a strong emotional reaction toward the issue, but simply because of one very simple extrapolation of our founding fathers' logic: We (Americans) were intended to be governed by our own consent. One CANNOT, by definition, consent to anything unless on reserves and retains the ability to dissent, and this is the entire premise of the Second Amendment.
Back then, civilians owned cannon loaded ships. Try mounting a Howitzer on your pickup truck and see where it gets you...
"Does anyone suppose that the folks writing the 2nd Amendment in the late 18th century envisioned the type of "arms" we have available today in the 21st Century?...if they could have, do you suppose the 2nd Amendment would have read exactly the same way"?
Do you suppose we in the U.S. would be more free or less free without citizens owning all types of weapons.
Hmmmmmmmmmmm????????
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