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 would be very interested in that information. I've only heard of Emerson. You would think that the court in Emerson would have cited those 17 cases to bolster their argument. Yet here is what the 5th Circuit said:
"The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.
-- US v Emerson
I wonder if those 17 opinions were from the district courts, later overturned by the Circuit Courts. That's possible.
That they should be given more weight? No, I didn't say that at all.
I said that if the individual vs. collective issue came before the U.S. Supreme Court, the U.S. Supreme Court would review historical Circuit Court rulings. They would find that every Circuit court in every case heard before them (save Emerson) ruled in favor of a collective right. That happens to be a fact. Deal with it.
Now, that's not to say that the U.S. Supreme Court has to go with the majority. They can always rule that Emerson was decided correctly and the other 100 Circuit Court decisions were wrong. That could happen.
Stalin, Hitler, Mao, Saddam Hussein, and the Democrats would all agree that individual citizens do not have the right to keep and bear arms.
Never mind that the 2nd Amendment says "shall not be infringed" - the socialists and communists know best.
BS.
The right to own a gun is just as clear as the right to free speech.
Everyone who is eligible should buy a gun and learn how to use it. Quickly, before it's too late.
paulsen wrote:
[The 2nd Amendment has been] "-- ruled a collective right.
Not that I like that -- it's just a fact. --"
WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
Address:http://www.usdoj.gov/olc/secondamendment2.htm
----- Conclusion -----
For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views.
The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation.
The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion.
Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.
No. No. No. And no.
It's not a registry. And if the citizens of Pennsylvania don't like what the State Police is doing with this "database", then they can prohibit that also.
This happens to be a FACT. Deal with it.
Stop smoking crack.
And if an AG appointed by a future Democrat President publishes a contrary opinion, we should also give that weight?
This makes it sounds as though the meaning has been in question since the Bill of Rights was written, when in fact there was no such confusion for nearly two centuries.
Oh my. I didn't realize it was a FACT. Well then, you're right. For no other reason than because you say you're right.
There was no confusion because there were no federal laws against gun ownership until the late 1920's, early 30's.
Nope. Those who wrote the Constitution say I'm right. Your hero's who have twisted the plain meaning of those words via judicial malfeasence are the ones in error here.
How something can be blatantly unConstitutional and still be considered "legal" is the gensis of my term "current legal fiction".
It means the people have the right to be armed with any kind of weapon.
Not true. The Fifth Circuit ruled that the Second Amendment protects an indivdiual right. (Emerson)
"a robust and comprehensive public discourse" is not a limiting clause, it is a DEPENDENT clause.
the primary clause is "the right of the People to practice and exercise Free Speech shall not be infringed"
you failed the class on parsing, didn't you?
And the Logic class, History, Comprehensive Reading, ect...
well, I was being rigidly empirical in this instance - i didn't want to speculate beyond what the evidence at hand definitely indicated.
bobby answers;
"-- what's your point? The citizens of Pennsylvania decide this, not you. They make the rules, not you.
There you go again bobby. Pennsylvania is supposed to have a republican form of government, not a dictatorship of a gun registering majority.
Pennsylvania legislators & officials are all sworn to support the US Constitution [& Amendments] as the "Law of the Land".. --- "shall not be infringed" is a basic part of that law.
Your arguments here for infringements are disgraceful bobby. Over two hundred years ago we the people of the USA established this Union, not you. They agreed the Constitutional rules, not you. -- You are free to deny your constitutional duties, but you are not free to infringe on our liberties.
The majority does not rule, not in the USA.
Plenty of evidence at hand to support both our summations. ;-)
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