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.
According to the court's interpretation of the second amendment, the federal government may not infringe the right of citizens to bear arms as part of a militia.
Yep Next time You See all the Unwashed Liberal, Lefty types, protesting in the name of ANSWER, ACT NOW, and MOVE ON, they are only trying to Save Our Skeet.
I really want to do the right thing and help SOS by joining the above mentioned demonstators. I have however found it impossible, since I bathe at least every Saturday, whether I need it or not.
Are you avoiding me rp?
Yep Next time You See all the Unwashed Liberal, Lefty types, protesting in the name of ANSWER, ACT NOW, and MOVE ON, they are only trying to Save Our Skeet.
I really want to do the right thing and help SOS by joining the above mentioned demonstators. I have however found it impossible, since I bathe at least every Saturday, whether I need it or not.
(Computers acting peculiar, hope this doesn't wind up a double post)
The same folks would have no problem whatsoever understanding the following, written in exactly the same language:
"A well-educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."No one would have any trouble understanding that the *private* right to keep and read books is being protected. No one would try to argue that only electorates or states "collectively" could keep and read books, or that one would have to actually be a registered voter before one had a right to keep and read books. The meaning is clear -- everyone has the right to keep and read their own books, so that when the time comes for them to vote as part of the electorate, they will be mentally equipped, they will be a "well-educated electorate".
Similarly, the Second Amendment says that there is a private right to keep and bear arms, so that if the people need to be called up as a militia in defense of the state or country, they will have arms and be proficient in their use.
Contrary to the anti-gun falsehood that the "individual right" view of the Second Amendment is only a "modern" idea the "gun lobby" came up with, check out this widely published summary of what was to become the Second Amendment, written at the time:
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."What part of "private arms" do you suppose the anti-gun folks have trouble understanding?--Tench Coxe (1755-1824), writing as "A Pennsylvanian," in "Remarks On The First Part Of The Amendments To The Federal Constitution," in the _Philadelphia Federal Gazette,_ June 18, 1789, p.2 col.1
And Coxe was no mere bystander or obscure editorialist. Coxe's summaries of the entire proposed Bill of Rights were published and read far and wide (for example, in addition to being published in Philadelphia, as cited above, it was also published on the front page of the special July 4, 1789 issue of the Boston Massachusetts Centinel, among others). Stephen P. Halbrook writes, in "THE RIGHT TO BEAR ARMS IN THE FIRST STATE BILLS OF RIGHTS: PENNSYLVANIA, NORTH CAROLINA, VERMONT, AND MASSACHUSETTS", "No one disputed this explanation or provided any alternative interpretation of the proposed amendment." Indeed, James Madison himself, who wrote the draft of the Bill of Rights, wrote to Coxe and commended him for his summaries, without taking any issue with Coxe's characterization of the Bill of Rights. And if anyone should know what the Second Amendment meant, it would be James Madison.
For the most part, it was Coxe's summary of the Second Amendment that was relied upon by the public when they debated, and then chose to ratify, the Second Amendment. When "the people" ratified the Second Amendment, *this* is what they understood themselves to be adding to the Constitution.
It seems to me that anyone actually looking at constitutional history has to agree that it's an individual right not a collective (governmental) right.
To think otherwise, one has to believe that the founders wrote the Second Amendment out of concern that the government might not be able to arm itself. This idea is completely at odds with the Bill of Rights which protects the citizens from the government’s overreach.
The first two battles of the revolution were started when the government tried to consolidate power by seizing weapons. Americans then fought a revolutionary war against tyranny. After these experiences, it's impossible for me to believe the founders feared that the government would not be able to arm itself and inserted the Second Amendment in the Bill of Rights to protect that collective governmental right.
As I stated before, if the state contitution allows it a state may ban certain categories of guns -- all handguns or all machine guns or all assault rifles -- but they may not ban all guns.
I haven't fully researched it because it's never come up, but it has something to do with the state interfering with an armed militia which is necessary for the defense of the state and the United States, something like that. I would imagine the U.S. Supreme Court would intervene.
But, short of that, no, the USSC refuses to consider cases involving state laws on guns.
MILITIA, mil ish' ah. In its most common application, this term refers to a body of armed citizens. The militia of the United States is made up of all able-bodied male citizens, and all other able-bodied males who have declared their intention of decoming (sic) citizens, who are not under eighteen or over forty-five years of age. All such persons are liable to conscription in time of war, with the exception of certain Federal and state officials, workmen in armories, arsenals, etc., and members of specified religious sects. The militia is subdivided into the National Guard, the naval militia, and the unorganized militia, the latter consisting of the great body of unenlisted citizens. (From 1930)
Amazing that Freepers can figure out this puzzling question in about 15 minutes while scholars sit around scratching their heads.
The same huge group of emanate "legal scholars" who just got n00bified by an 8-0 SCOTUS decision?
Those ones?
Or some other mysterious "legal scholars"?
The problem is the "legal scholars". They know from nothing. They sit and think and never face a life or death situation. Those of us who are legally armed in America are so because we want to protect our families and our own lives. And, so armed, Americans can also protect themselves from terrorists to a certain degree. A disamred society, e.g., Britain and France, have a big problem and they have my sympathy to a degree, but they should look at the politicians they elect.
Like I said earlier It is necessary citizens keep and bear arms in order regulate the militia.
But as part of anything else, e.g. a police department, they may only be armed subject to federal regulations, right?
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)?
Paulsen:
The 10th amendment deals with powers.
We're talking about rights, and the protection of those rights.
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.
Rob, -- the 10th amendment deals with both delegated powers, and prohibited powers. You can't deal with those amended prohibitions on state powers, so you ignore them.
We're talking about rights, and the protection of those rights. An individual RKBA is "found" in the 9th amendment, if you will.
Laughable comment. The peoples right is found in the 2nd, and you again ignore it.
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.
But you claim they are not obligated to do so. You claim a "home rule majority" can ban handguns. - Admit it.
If a state does not protect your right to concealed carry, for example, you have nowhere to turn.
And if a local home rule majority does not protect your right to own a handgun, for example, "-- you have nowhere to turn. --"; -- according to robertpaulsen and Sarah Brady..
Get a grip rob.
Doubtful. It's one of the clearer provisions, and that's quite an advantage.
If there's a problem, it's that the drafters wanted to give a reason for honoring the right to bear arms. That was a mistake. They don't give a reason for honoring the right to free speech or freedom of religion, and shouldn't have bothered to give one for the right to bear arms.
I suppose there is a question about just what arms citizens can bear as a constitutional right, but still, other sections of the constitution, like the 9th, 10th, and 14th Amendments are drafted worse than the 2nd Amendment. And as a practical matter, something like the original procedure for electing a President turned out far worse than any of the later amendments.
In general, the more sweeping a provision or guarantee is the more mischief it can do. But people tend to like those sweeping clauses, because they like the poetry and can find whatever they want in it.
This statement is inaccurate
Exactly. I believe neither of the defendants, Miller was dead, nor their lawyers even showed up for the case.
It's my understanding that sawed-off shotguns were widely used in the trenches of WWI. Had anyone stood up and stated as much the lower court's ruling supporting the Second Amendment would have stood.
Both of these statements are true only for people with poor reading skills.
That was my first thought too. What it really is, are liberals trying to put together enough words to fool the populace. From my cold hands!
Great post # 20. Thanks.
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