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.
All weapons? No.
"-- I can't believe RP actually stated that mere local statutes can over turn State Constitutions --"
Can't read?
"But if the state constitution allows it, and if the state has home rule, then of course a city may ban handguns.
And you really should watch your language, a$$hole.
Paulsen, the really foul language being used here at FR is your anti-constitutional 'moral majority' BS.
Then which weapons can the government ban by fiat?
In re-reading your post # 150 again, what defintiton of "militia" therein is in significant disagreement with the Webster dictionary definition of a militia?.....I find none.
This could be read as, "The federal government shall not infringe on speech which is part of public discourse."
Speech not considered "public" or a venue that does not allow both sides of the issue ("discourse") could be prohibited by the federal government under your wording.
Resolved, That a declaration of rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid before Congress, and the convention of the states that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid on the part of the state of North Carolina.
*snip*
17. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that. in all cases, the military should be under strict subordination to, and governed by, the civil power.
*snip*
AMENDMENTS TO THE CONSTITUTION.
1. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.
They KNEW that the States were DELEGATING certain powers to the Federal Government. Those things specifically listed. That the BoR was to be a BLANKET protection for a common set of Rights necessary for the "life, liberty, and the pursuit of happiness..."
Our Rights are either held inviolate by any level of government, or we don't actually HAVE any Rights and our Nations founding document is a lie and void.
Don't you think it could go the other way if they try
to carry it to the socialist conclusion?
They can't read?
By fiat? The federal AWB came about because of pressure from the states who wanted the feds to prohibit their interstate commerce.
I thought the AWB was a hysterical liberal knee-jerk reaction to "stopping crime". Just like the banning of guns that hysterical liberals want in San Francisco and Chicago.
By the way, it won't stop any crime from happening. Guns are already illegal to use in the commission of a crime. Criminals will always be able to get guns. Criminals will always commit violent crimes like armed robbery and murder. Any law against guns only harms the honest citizens.
Thank you - what a great post.
The feds can't use the supremacy clause on the state.
According to you, the second amendment forbids the feds from interfering with the rights of my state of PA to form a militia. Therefore, any type of interference is an infringement on the rights of my state and is forbidden by the constitution.
As to registration, every time I buy a firearm from a FFL, I must jump through federal hoops and my name and address is taken down along with the type and serial no. of the firearm I want to purchase.
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. --"
Paulsen imagines:
This could be read as, "The federal government shall not infringe on speech which is part of public discourse."
Speech not considered "public" or a venue that does not allow both sides of the issue ("discourse") could be prohibited by the federal government under your wording.
Textbook example of cognitive dissonance being used to pervert prouts original meaning.
Be ashamed bobby. Your own mind games are playing tricks on your ability to reason.
I think Homer had it partly right when he said it was for "shooting dangerous or delicious animals, and keeping the King of England out of your face"
Nah. Reasonable restrictions are allowed under the U.S. Constitution and under Pennsylvania's constitution.
"“... a reasonable regulation in a gun control law is a valid exercise of the police power of the Commonwealth prescribing for the good order and protection of its citizens.”
-- The Superior Court of Pennsylvania, Commonwealth v. Ray, 272 A.2d 275 (1970)
"As to registration, every time I buy a firearm from a FFL, I must jump through federal hoops and my name and address is taken down along with the type and serial no. of the firearm I want to purchase."
"Pursuant to 18 Pa.C.S.A. § 6111.4, “[N]othing in this chapter shall be construed to allow any government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership” within Pennsylvania."
And precisely how far back does the record go. I think you are using the hidden clause "in the Twentieth Century". I suspect that if you go back to the pre-1900 period, you'll find lots of lower court decisions affirming an individual right.
the right of the People to keep and bear arms shall not be infringed.
I've read and re-read this a thousand times and no matter how hard I try I can't seem to find any meaning other than what the words actually say. But come to think of it now there is nothing in that sentence that authorises people to fire those arms. That must be it.
"Pursuant to 18 Pa.C.S.A. § 6111.4, “[N]othing in this chapter shall be construed to allow any government or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership” within Pennsylvania."
The PA Supreme Court reversed themselves on this and said the State Police were allowed to keep such a registry.
You said, "Reasonable restrictions are allowed under the U.S. Constitution and under Pennsylvania's constitution".
No restrictions are allowed under the PA Constitution.
From the PA Constitution: Right to Bear Arms
Section 21.
The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
Wrong again, RP. As usual. As always.
Federal court decisions? I'm not aware of any. Other than some state laws prohibiting the carrying of pistols, there weren't any gun laws TO challenge prior to 1900. The first federal law was enacted in 1927 which banned the use of the mails to ship firearms concealable on the person.
"-- Then which weapons can the government ban? --"
Paulsen:
"-- 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. --"
Bobby, -- which categories of guns are safe for us to own, in your humble opinion?
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