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.
State's rights aren't constitutional? The rights of states are antithetical to individual rights? WTF are you talking about?
Well, you know what I think about that. The First Amendment states "Congress shall make no law..." The Second does not. The "home rule" folks might try to convince people that the State governments can restrict freedom of speech - good luck - but I don't see a lot of wiggle-room in the Second. It says pretty much what it says.
I think it means, that if a state wants to keep a militia for it's security, the People have the right and duty to keep their eye on the militia and well regulate them.
It's really quite simple.
'Rulers LOVE Unarmed Peasants!!!'
I think this 'states rights' position is a delusion brought on by the idea that "the majority" in a community can control the life, liberty, or property of anyone else, using laws that 'prohibit evil'.
Any comments?
True. But the lower federal courts have consistently ruled that the second amendment only protects a collective RKBA from federal infringement -- collective meaning "as part of a militia".
An individual RKBA is protected by the citizen's state constitution.
State's rights aren't constitutional? The rights of states are antithetical to individual rights? WTF are you talking about?
See #45, and feel free to comment.
Yeah, that'll be next, LOL!
"I went shooting today and not a single fetus was harmed"
I call dibs! :)
The lower federal courts have interpreted the second amendment as "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms as part of a militia shall not be infringed by the federal government".
However I can't imagine you making the following assumption:
And even the American Civil Liberties Union (ACLU), staunch defender of the rest of the Bill of Rights, stands by and does nothing.
The ACLU was founded by an avowed Communist for the express purpose of using the Constitution against itself for the best interests of the Communist Party.
It has not announced any changes to that policy.
Answering his assertion. I didn't use the best choice of words. Sorry.
Parsing the grammer is a second strong clue.
An individual RKBA is protected by the citizen's state constitution.
Except where you've claimed that "bans" are "found to be constitutional."
The City of Chicago bans handguns under home rule powers and it was found to be constitutional.
45 posted on 03/12/2006 7:09:14 AM PST by robertpaulsen
How about this? An individual RKBA is protected by the state constitution, and the formation of an armed citizens militia is protected from federal infringement by the U.S. Constitution.
What a novel concept, yes? It's got federalism written all over it!
Awe, Man! A new guy won this year. Some new friend of DH's, a ringer from Maine of all places! (He's a customer of DH's in our computer consulting biz.) Brother Steve was second, neighbor Randy was third, three other guys and my SIL Kellie were next...and I was last; but the rest of them shoot regularily at their "clubs." Guess I'd better get right on that. Now, if I still had my M-16 flipped to auto they wouldn't stand a chance, LOL!
But man, I love to shoot. It's just nice being outside and trying out different guns. It's just fun, fun, fun. :) DH has a slight disability (repaired, though still problematic bad discs in his neck) so he doesn't shoot anymore, but keeps meticulous score.
First prize was an Amish-raised roasting chicken. Second prize was a Cornish Rock Hen, LOL! Nothing for the rest of us losers except a fun day. :)
Yea, I've seen a bit on that. Pretty ridiculous, huh?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The question is whether the 2nd Amendment's mandate to not infringe is covered by "nor prohibited by it to the States." ("It" here meaning the Constitution, of course). In my opinion it is so covered. But I'm not a lawyer.
Do you think the Founding Fathers ever thought such a thing could happen? Yes, they feared the thought of a tyranical federal government amd put constitutional safeguards in place. But their own state -- a tyranny? Never.
What it means to me is...when I hear hoofbeats, I expect horses...not zebras.
Read it. Understand it. Act on it. Period.
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