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.
Amen! It's way past time when the people of this country should get this. Unfortunately, the liberal/union run schools have just about completely removed this concept from the curriculum...
The Constitution was written to protect the people from government.
in terms of US law, the definitions of terms in the United States Code trumps Webster. If you cannot see how the USC definition differs significantly from the pitiful Webster attempt, nothing I or anyone can say shall illuminate you.
only by the ignorant, a statist, or a would-be tyrant.
so I notice. sickening.
they record the purchase, they record the identities of the buyer and vendor, they record the make model and serial number of the weapon, and they record the date of the transaction. And this record can be accessed through computer by state and local police. Same here in Georgia. That IS a registry, bobby.
just a note: carry_okie is one of the good guys. I'm reasonably sure he was illustrtating the de-facto reduction of much of the citizenry to serfdom, a trend endemic to much of this rebublic.
bump for later
Sophistry trumps nothing.
webster isn't a legal document, poptart.
The 5th Circuit Court's opinion in that one case, US v Emerson, was the only case for an individual right. All other courts in all other cases ruled a collective right.
Not that I like that -- it's just a fact.
The 9th Circuit Court alone had five cases recently where they ruled a collective right, the most recent being Silveira v Lockyer (2001). The others were Fresno Rifle & Pistol Club v. Van de Kamp, 965 F. 2d 723 (9th Cir. 1992); Hickman v. Block, 81 F. 3d 998 (9th Cir. 1996), cert denied, 519 U. S. 912 (1996); San Diego County Gun Rights Committee v. Reno, 98 F. 3d 11121 (9th Cir. 1996); United States v. Mack, 164 F.3d 467, 474 (9th Cir. 1999).
Now, I can cite numerous cases from other federal courts, but it would be easier if you were to cite just one case, other than Emerson, where any federal court ruled an individual right.
I, for one, do NOT think bears should be armed. After all, they lack an opposable thumb and..........
save for later
That is about all we can take from what the U.S. Supreme Court said in Miller. All the rest is conjecture.
Since Miller, all the lower federal courts (save the 5th) have ruled that the Second Amendment protects personal ownership of weapons (which have military utility) as part of a militia.
Furthermore, an honest reading of Miller would allow the personal ownership of weapons far more lethal than sawed-off shotguns. Since we no longer have the citizen militia as envisioned by the Founders, how are we to implement this "honest reading"? M203's for everyone?
Robert, have you researched this? This is why I ask, on March 28th, there will be a hearing on BATF abuses in Congress and one of the people testifying has the case information on 17 cases that have been heard in the federal courts where the individual rights argument has been upheld... It will be read into the congressional record on that date. Hopefully, CSPAN will broadcast the hearings. I don't have the case specifics handy or I'd post them all. The person in question though has put about 400 hours of time into researching the issue.
Mike
As part of the citizen militia envisioned by the Founders, no problem. By the way, what's the name of your superior officer?
Well, we both know that the citizen militia has gone the way of the buggy whip -- they were ineffectual during the War of 1812 and disbanded shortly thereafter in favor of a standing military.
Which leaves a dilemma -- if the individual ownership of a weapon is protected as part of a militia, but the individual is not part of a militia (since the militia no longer exists), what right is the second amendment protecting?
This was pointed out by the court in Silveira v. Lockyer -- since the plaintiffs were not part of a militia, they lacked standing to assert a second amendment claim.
I'm not the one who limited speech to public discourse.
But even if they did, what's your point? The citizens of Pennsylvania decide this, not you. They make the rules, not you.
If the Pennsylvania State Police are misinterpreting what the legislature wrote, maintaining a "database" instead of a "registry", the legislature can rewrite the legislation.
You are like one of those old philosophers from the 12th century. You look out at the horizon and see it end. Therefore, at some point the world must have an end. Therefore, it must be flat. Your entire quasi-religious ideology depends on the planet never being proven to be anything other than flat.
Building one faulty conclusion upon another does not grant you some mystical ability to suddenly have your arguments become correct.
You can call a dog a cat, but that doesn't change the nature of it.
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