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.
Allow me to rephrase your question. If all the other federal circuit courts in all the other gun cases ruled that the second amendment only protects a collective right, wouldn't it be logical to assume that the 5th Circuit was in error?
Third time? No. It's the first time you called it a list, and now, finally, YOU are correct.
By 1986, you could have sold your handguns and the State Police wouldn't have a clue who owned them. A registry would require tracking.
The citizens of Pennsylvania can always change the law if they feel it's being circumvented by the State Police.
I bet you also have a problem with speed limits -- why is 55 legal and 56 illegal?.
The law was there. It was CIRCUMVENTED BY THE PA SUPREME COURT! What part of that don't you understand?
The state police knew in 1986 which handguns I still had and which ones I had sold and to whom I had sold them. The practice is still going on to this day.
All handgun sales and purchases are and have been for years tracked by the PA State Police in direct violation of the law you quoted.
Once again, you are wrong. For the fourth time now I have told you the truth.
You are a hard-headed idiot at best, as well as a total fool.
The published syllabus of U.S. v. Miller, which was prepared by a court reporter and has no legal weight, does not accurately reflect what the decision actually says. Unfortunately, at least one lower court based a decision upon the syllabus rather than the case itself, and some other courts have based their decisions upon that one. No matter how many decisions are written based upon a faulty reading of Miller, that won't make such a reading correct.
The Supreme Court ruled that the government could proceed with its case against Miller's co-defendant Frank Layton. The government declined. Are there any other cases you can think of where the government has scored a "victory" and reacted by offering a plea-bargain?
Had Layton's case gone to trial, he would have been allowed to introduce evidence that his shotgun was indeed an instrument suitable for use in a well-functioning citizen army. Given that the U.S. Army had in fact used such weapons a couple decades earlier, such evidence would have led to his acquittal.
The syllabus in Miller not leaves out some of the critical surrounding circumstances (e.g. the reason there was no evidence for military utility was not that Miller/Layton had failed to provide any at trial, but rather that their trial hadn't even happened yet and thus they'd not been allowed to present any evidence of anything). Further, it alters some of the Court's wording so as to change its meaning. The Court said there was no evidence before it that a sawed-off shotgun was a militarily-useful instrument; the syllabus changed this to state there was no evidence that Miller's possession of a sawed-off shotgun would serve a military purpose.
An honest reading of Miller would indicate that the Second Amendment protects personal ownership of weapons which have military utility, but that--in at least some cases--the burden of proof could be placed on the individual possessing a weapon to demonstrate of its military utility.
That other courts have chosen to cite the syllabus rather than the decision itself, or to cite other court decisions which in turn have done so, is sound reason to consider those courts to all be in error.
Ironic isn't it that the anti-gun side, if they were to force their opinion on the rest of us, would have to use guns to do it?
It couldn't be more clear: Liberalism is a Mental Disorder
How I love the smell of crew served weapons in the morning. ;o)
Good to see you posting Brucifer. By the way, the move is on for Saturday!
What do you mean? The liberals at the top don't get rid of their own guns--they just want their serfs to do so.
In reply to your post #46, you are incorrect. In the 20th century, every federal appeals court had found the 2nd Amendment protects an individual right. The most recent was the 5th Circuit's desicion in US vs. Emerson (1999).
The liberal and incorrect interpretation of the 2nd used most recently by the wacky leftists, being that the 2nd is a state's right and not an individual right, came about in the mid-sixties and didn't really become commonplace until the early 1980's.
Remember something, the shots that started the Revolutionary War rang out when the British attempted to deny the people their arms in Boston. Basically, we started a war because some idiot wanted to ban our guns back then and we're damned sure ready to do it again if the current crop of idiots don't start backing off and repealing the garbage that is on the books now.
Mike
Actually, liberals would never dirty their own hands with a gun--that's why they have bodyguards and servants.
Another ironic twist in this debate is all of the BOR's that mention "The People" all secure individual rights--except the 2nd? Another classic example of liberalthink.
The federal government is free to infringe elsewhere, if of course they have the constitutional power to do so. (For example, the federal government, under the commerce clause, banned certain assault rifles.)
M. Kehoe asks:
There really is a simple question that the author overlooks. If all the other amendments grant an individual right (1,3-8), wouldn't it be logical that the Second also grants an individual right?
paulsen avoids the question by "rephrasing" :
Only one federal circuit court, the 5th, in one case, US v Emerson, has ruled that the second amendment protects an individual right.
Allow me to rephrase your question.
If all the other federal circuit courts in all the other gun cases ruled that the second amendment only protects a collective right, wouldn't it be logical to assume that the 5th Circuit was in error?
paulsen, that assumption is only "logical" to your anti-constitutional factions warped way of thinking. You and Sarah Brady see it that way, -- normal folks here at FR do not.
Some leave the job purely to their bodyguards and servants, but some handle them themselves (usually rather badly). In any event, regardless of whether they handle the guns themselves or let someone else do it, those guns exist for their protection and they'll ensure that none of the laws they pass affect them.
The Constitution & the Bill Of Rights!
I think the phrases "We the People" and "Shall Not Be Infringed" make it pretty clear!
You simply cannot have a broad interpretation of every other right in the Bill of Rights and a narrow one here.
" Think it took just a day after Katrina hit for this to happen."
Yep, and then what did the govt do? They started confiscating privately owned arms. Scary.
I suppose I should go ahead and buy a couple pounds of C-4 while it's still available. I'll go ahead and pick-up a few of those M-60's while I'm at it.
I'm feelin' kinda in the mood for killin' some anti-my-state types. C'mon RP, let's go kill us some MOONRATS!
>>I bet you also have a problem with speed limits -- why is 55 legal and 56 illegal?.<<
The 2A is a right that SHALL NOT be infringed. How fast one drives their horse totally lacks a federal nexus, so of course, it cannot be a matter for federal jurisdiction. see Amendment X.
Not a court, but how about Madison ??
"I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack the invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against. "
http://www.usconstitution.net/madisonbor.html#Sec2
This cite is not specific to the 2nd amendment; it is included in Madison's presentation background to the introduction of his first draft of the BOR to the congress..
The Right to Keep and Bear Arms is included in that original draft, however, and intent is made clear in the statement..
The protections against infringement of the listed rights and all others held by "the people" are in fact, to be honored by not only the federal government, but by the states..
Since this ideal is presented in his own words by the very person that originally presented the BOR to the congress, I find it sufficient evidence that the States are required to obey the restrictions of the 2nd amendment..
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