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.
It's been a huge mistake. When citizens are no longer "capable" of law enforcement, they no longer keep tabs on the laws and true civil liberties take a dive (like letting your kids go for a walk unsupervised). We are raising a generation with no idea what it is to experience freedom to protect the license of the depraved and violent.
Then it would have read: "The right of the States to keep and bear arms..."
It also would not have been included among the first 10 amendment, known collectively as the Bill of Rights.
Lacking that "artifact of a model," executing 9-11 was a piece of cake.
I think you came up with either a tagline or a bumper sticker.
"I went shooting today and not a single fetus was harmed"
This statement is inaccurate, as well as being the opinion of Mullahs that I doubt ever had to do a building-to-building rout of a gang oriented terrorist group. That weapon would also be useful to a private citizen defending themself (and very possibly others) in a few other scenarios.
Hopefully when this decision is revisited clearer heads will prevail.
Ironically, a Federal government that strictly adhered to the principles of the U.S. Constitution would have been incapable of fighting most of the wars the U.S. has fought in the last 100 years.
"We had our Spring Trap Shoot this past weekend out here at the farm and not one fetus was harmed in the process, though lots of clay pidgeons were blasted to smithereens. ;)"
Wait until PETCP (People for the Ethical Treatment of Clay Pidgeons) hears about that!:>)
Or Wickard v Filburn.
Yup. We are not as safe and cozy as this idiot would like us to believe because the Government can't/wont always be there to save us.
I can understand why he has difficulty with this concept. He's a pro-Government Liberal.
Yeah, that's pretty ambiguous, not at all like the fourth amendment which guarantees the right to abortion on demand.
You know, it's really not that difficult.
No it isn't, if the average man of that period could
understand it, so can we, without the help of scholars
or lawyers.
"On every question of construction (of the constitution) let us
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 which it was passed."
Thomas Jefferson
1823
Sounds like a good bumper sticker.
Bill of Rights.
1,4,9,10 = 2!
Of course, to those for whom the Constitution is a "living document" it's merely a starting place for social engineering by legislation. Should the Second Amendment be affirmed by the Supreme Court, and it will, we will see a sudden and very well-publicized campaign for the repeal of that pesky amendment. Expect that to fail.
Ummm, no, the Supreme Court said nothing of the sort. The Supreme Court remanded the case to the lower court, asking the lower court to make a determination as to whether a sawed-off shotgun bore a “reasonable relation to the preservation or efficiency of a well regulated militia,” and that if it did, then the law was UNconstitutional. Given that there was ample evidence at the time that sawed-off shotguns HAD been used in military operations, the finding would have been that the law was unconstitutional. However, the original defendants were not present or represented at the Supreme Court proceeding, so no evidence to that effect was presented there. The lower case never revisited the case, because one of the two defendants had died, and the other had already accepted a deal in which he plead guilty in exchange for a probation-only sentence.
As is often the case when debating the Second Amendment, both sides claim Miller supports their argument.
And as far as I can tell, virtually no one on either side actually READS the case before claiming it supports their argument. Join the elite club here:
Overview of surrounding circumstances: http://www.keepandbeararms.com/information/XcIBViewItem.asp?ID=2337
The SC decision: http://www.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/miller.txt
Or possibly: To prevent tyranny of the people by a select few, the right of the people...
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"-- No court has ever held that the 2nd Amendment bars regulating firearms by the states. Feel free to produce even a single cite. --"
39 posted on 02/19/2006 10:59:09 AM PST by Mojave
Thank you, sir, for your post #20. That was the most enlightening explanation of the language of the Second Amendment that I have ever read...and I have read quite a few.
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