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.
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Allow me to clarify that sentence: "The City of Chicago bans handguns under home rule powers and it was found to be constitutional under Illinois' constitution."
Be that as it may, when a second amendment case finally reaches the U.S. Supreme Court, the Court will be examining all the lower court rulings to arrive at their interpretation.
Only one lower federal court (the 5th Circuit) in one case (U.S. v Emerson) has ruled that the second amendment protects an individual right -- every other court in all the other cases have ruled that the second amendment protects a collective right.
Not good.
If you believe that this interpretation is correct, would you also agree that entities such as police departments lack such a right to arm their officers?
I agree .. the key word is "people"!
The framers were very exact in their writing. If they had meant something else they would have said something else.
These words "not be infringed" keep getting infringed upon, and I think all of us are getting pretty sick and tired of it.
The founders felt that the government should not have all the guns.
I am sure that there are FReepers who can more succinctly make the point. Me being from Massachusetts and not ever having owned a gun makes me slightly unqualified.
We agree.
"Who Is Right about the Right to Bear Arms?"
I am.
Well, I'll let them speak for themselves. If I understand the argument correctly it's based on the 10th Amendment:
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.
Paulsen, will you "speak for them --"? Can you explain why an individual right is not "-- prohibited by it to the States." ("It" here meaning the Constitution, of course)?
The individual RKBA is defined and protected by each state in their state constitution. Arming state, city and local law enforcement agencies would be covered under a state constitution, as would arming the citizens.
We agree
Don't be too sure of that. Bobby supports the power of state & local governments to prohibit most anything.
Right bob?
This is not hard to figure out.
Pick up any encylopedia, history book, etc, written before 1970.
It will be matter of factly written that the right to bear arms was an individual right. Some sources will probably cite some of the Federalist Papers, English Common Law, etc to make the case.
There was never any confusion over this for the first 200 years of America.
Only since the libs started re-writing the 'living constitution' has their been any confusion on this issue.
But only a militia of citizens could bear arms without regard to federal regulations, right?
You know, it's really not that difficult.
I agree. There are two clauses in that sentence. One is a dependent clause, the other an independent clause. The framers knew English I suspect. The independent clause can stand alone: "...the right of the People to keep and bear arms shall not be infringed." "We" are the people. Period, end of discussion.
Jag
LMAO
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
Allow me to clarify that sentence:
"The City of Chicago bans handguns under home rule powers and it was found to be constitutional under Illinois' constitution."
Nice try, but I'm sure you will still insist that local "home rule" gun bans cannot be found unconstitutional by the USSC; -- correct?
An individual RKBA is "found" in the 9th amendment, if you will. But the federal government doesn't protect that right (the collective RKBA as part of a militia is protected from federal infringement, yes). So who does?
Each state, in their respective state constitutions, defines and protects the individual RKBA. If a state does not protect your right to concealed carry, for example, you have nowhere to turn.
here's a link to an article about militias in a 1930 world book.
http://www.freerepublic.com/focus/f-bloggers/1556914/posts
I'm with you on that! The smell of gunpowder is aromatic. On our first anniversary in 1972, I gave my wife a bottle of Hoppe's #9 as perfume. And she's still a better pistol shot than I am.. dammit! LOL
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