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"?
He's here because he gets a certain amount of support from misguided conservatives who buy into his 'moral majority' agit-prop.
These people are 'true believers' of State control over 'sin'.
-- To them, assault weapons are sinful.
"Qualifications...qualifications....we don't need no steeeeeeking qualifications!"
"And why just "male"??
Maybe because a lot of women have no real concept of freedom? Like yourself, for instance.
Women tend to "think" with their feelings. Many women "feel" that we would all be better off if no one had any guns.
Many women belong over at DU with the other DUmmies. Not all of them, however. A lot of FR women "get it". You are not one of them.
I noticed. They seem to rely instead on what others have said the law/Constitution/ect... say it says, instead of what the plain English actually deliniates.
men are, on average, more physically suited to the exigencies of emergency mobilization than are women.
those between 17 and 45 are, on average, more physically suited to those same exigencies than are those younger or older.
you will note that in the current 10USC113, female guardsmembers are also part of the "unorganized" militia
there is also mentioned an exemption or waiver for the upper age limit.
in any case, the militia is manifestly NOT a standing army, nor is it the national guard.
as posted in #150, your definition of "militia" is not congruent with United States Code, both current and long-standing.
Using your argument, the press should only be that which uses woodcut press plates and town criers. Restrictions of "speech" on the internet or broadcast media would be just dandy under your "logic".
Utter rubbish...
the only rationale I can posit is deceit impelled by foul motives.
Webster: Arms........Weapons.
In the 18th century this would include canon, muskets, sabres, swords etc.
In the 21st centrury it would include, but be not limited to, all of the foregoing plus all of the biological and nuclear weapons. The courts set the laws limiting weapon type and use parameters dependant on danger to the population.....noise, radiation danger etc.
Therefore I would not likely be permitted to develope anthrax in my basement.
N'est Pas?
Murder is a sin as well. Which is what they are going to have to do to me to get my legally held firearms away from me.
Amendment: "A robust and comprehensive public discourse, being necessary for the maintenance of a Free State, the right of the People to practice and exercise Free Speech shall not be infringed."
Infringer: "Oh, but that refers to a collective or perhaps a State right, not an individual's right to practice and exercise Free Speech. Only trained and state-approved-and-employed Orators should be allowed to speak."
I have yet to see a hoplophobe make a good comeback to that challenge. Usually, the little gears in their pointy little melons sieze up, smoke pours out of their ears, and a look of anguished befuddlement fixes upon their earnest little Statist faces.
Ladies; this idiot has issued some fight'n words.
His - at best - high school logic has insulted us as a group and certainly me as an individual.
However, this is the "land" of free speech, so I suppose we have to put up with the likes of "supernatural".
On the other hand...feel free to attack him with a few feminine concepts!
Agreed. Or fear. Fear of real, actually, honest to the Gods liberty scares the piss out of some people. Note: this isn't freedom from responsibility. Quite the opposite.
"When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness...."
and, PLEASE - let us not have some version of the grotesque revisionist lie that "arms means weapons a man can carry in hand"
Arms (weapons) stems from the Latin "arma" - implements used in warfare; *generally*, but not limited to, personal weapons and armor
the latin for "arms" (those twigs hanging from your shoulders) was "bracchia"
actually, it is in reality an obligation or duty.
statists despise individual duty as much as they do individual liberty.
but... you know this already :)
"His - at best - high school logic has insulted us as a group and certainly me as an individual".
I think "high school logic" is far too complicated for you to understand.
We need to get it down to grade-school level for you.
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?
Not implying anything, simply asking.
Nope. -- Your question is begging the issue of whether our modern weapons are to terrible for mere civilians to own. - Admit it.
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.
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!
Actually, private ownership of nuclear materials in the USA is possible. Ask your power company about the necessary regs..
Check out all the posts on this page.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.