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 can't believe RP actually stated that mere local statutes can over turn State Constitutions and the Fed Con. That it is perfectly legitamate for the Commerce clause to be utterly twisted to give the FedGov essentially unlimited power.
And this jackass has the nerve to call himself a "conservative"?
1. militia=military service..part of an armed force of a country....no mention of a person's right here
2. "well regulated" ...no confusion there...who regulates has to be something above an individual
3."the right of the people to keep and bear arms"...AH>>>>THERE IS THE STICKER THE ANTI GUN CROWD CAN'T GET AROUND.
However, they try to connect #1 and #2 (INFERRING GOVERNMENT CONTROL) with #3....and that is JUST too much of a stretch.....even for the devious.
which makes it "what the founders said, X 1!" ;)
Please define "arms" in terms of the 18th century American colonies; and in terms of say, 21st century US.
Interesting, no?
I suppose it depends on the definition of "freedom"; and "more or less" free that what?
I'm just kind of curious here.
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????????
LilDarlin, You're being very feminine. Your question got me this far; -- are you implying that 'we the people' shouldn't have the right to own the same weapons of war we give to our governments?
Perhaps, if you think about that, -- it will take you the rest of the way, leading you to the rational idea that in order to protect our liberties, we have to be able to defend them.
Inactive Militia are under no such stricture. So the active duty militia is "bound" to the civil authority. The inactive isn't. Therein lies a stumbling block for more than one persons arguments.
Of course, the protection is broad and general and applies to all US Citizens not subject to a criminal penalty. Regardless of the "home rule" status claimed by their city/State.
Not implying anything, simply asking.
And...quid pro quo....if my government has nuclear weapons, then I want one (or more) also...or at least the right - using your arguement - to have them, personally!
the militia is defined in US Code most recently as:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+10USC311
[CITE: 10USC311]
TITLE 10--ARMED FORCES
Subtitle A--General Military Law
PART I--ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13--THE MILITIA
Sec. 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section 313 of
title 32, under 45 years of age who are, or who have made a declaration
of intention to become, citizens of the United States and of female
citizens of the United States who are members of the National Guard.
(b) The classes of the militia are--
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the Naval
Militia.
(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85-861, Sec. 1(7), Sept.
2, 1958, 72 Stat. 1439; Pub. L. 103-160, div. A, title V, Sec. 524(a),
Nov. 30, 1993, 107 Stat. 1656.)
(NOT the standing armed force or military, my FRiend.)
Historical and Revision Notes
1956 Act
If you look not only at the words and writings of our founders, but also at those of the European philospohers of the Enlightenment, they were quite adamant about "self evident," and "inalienable," meaning just that...Too many Americans have failed to study, much less read the Constitution and the Declaration, and are easily manipulated by the charlatan scholars who offer to tell them, "what it really means."
>"more or less" free that what<?
More free than the citizens of Red China, Cuba, the former U.S.S.R., the citizens of Iran, the citizens of Cambodia under the Kymer Rouge, etc.
If you don't like U.S. citizens owning firearms, you are free to move to one of the above mentioned countries and enjoy the "freedoms" those countries give you. See how you like it there. Try Cuba or Communist China. Enjoy the life of the "land of the free" under communism.
yep - see recent USC citation at #150
funny how almost no one (except the hardcore 2Am folks) refers to the actual legal definition of Militia in these arguments
(as you can see, the definition of the militia as all male citizens 17-45 is of very long standing)
This law is the same exact one on the books in Pennsylvania as defining the militia. Probably on the books in every other state that has ratified the federal Constitution too.
There. Fixed it.
The Second Amendment was written just after the mass of citizens rose up to overthrow their duly constituted and legitimate government. Clearly the purpose of the militia was to operate as a check on government power. Also clearly, that need has not diminished over time.
2. "Well regulated" ...no confusion there...who regulates has to be something above an individual, i.e. county, state etc
3."the right of the people to keep and bear arms shall not be infringed"...AH.....THERE IS THE STICKER THE ANTI GUN CROWD CAN'T GET AROUND.
The Bradies, ACLU etc try to connect #1 and #2 ....with control over #3 and this requires pure sophistry.....for any court to accept.
#3 IS ROCK SOLID AND HORDES OF LAWYERS HAVE FALLEN ON ITS CLARITY.
*shrugs*
I just cannot *conceive* of the reason why all those hoplophobic "constitutional scholars" never mention this simple fact of a well-defined term.
They've raised the social security qualification age for all folks born after - I think - 1937 upwards.
One would think they'd raise the age of the "oldest" qualifiable militia also. Heck, we have master seargents older than 45!
And why just "male"??
Go for it...
Whoa there, hoss!
I was asking you to define the terms you used in your arguement; I said nothing about being against the 2nd Amendment.
Seems you've a bit of the "lynch mob" mentality about you..."My country - right or wrong!"?? "Shoot first, then ask questions." etc...
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