The reason why Ashcroft and Olsen filed the brief they did, was because they actually read the entire 2nd Amendment, which was not quoted in this opinion rant. Does the writer need a building to fall on him to see that the Amendment specifically uses the phrase, "well-regulated?" That can't be ignored, just because we don't like it. (And I support gun rights and individual ownership, including concealed carry laws)
We will win our arguments not solely with passion, but with precision and logic. The "new" position of DOJ is correct. First, the Second Amendment is the only Amendment in the Bill of Rights that has been narrowly interpreted and has been considered a "group right." Of course, since the Bill of Rights are individual rights of the people, this judicial fallacy has never held water. Accordingly, an individual right must read broadly, and any goverment effort to curtail that right must be subject to strict scruitney.
Second, there is no question that the language of the Amendment permits regulation by the government. Sorry, we can't ignore the four corners of the Amendment.
I subscribe to the idea that militia in the context of the Amendment refers to all able bodied people, as the term was used at the time. Thus, the militia reference is consistent with the individual rights aspect. However, the right to regulate same is not cured by that analysis.
As for a REAL analysis of the arguments, I submit the following article: Guns and the Constitution
Prof. Eugene Volokh, UCLA Law School
(from the Wall St. J., April 12, 1999, p. A23)
A federal judge in Texas has just done something no federal court had done in more than 60 years: He held that the Second Amendment protects people's right to keep and bear arms. If this decision is affirmed by the Fifth Circuit Court of Appeals, the case has a very good chance of going to the Supreme Court, which hasn't yet resolved this issue. And behind the narrow Second Amendment matter lies a deeper question about the utility of a written Constitution.
As in many constitutional cases, the defendant -- Timothy Emerson, a San Angelo doctor -- isn't the best of fellows. During Dr. Emerson's divorce proceedings, his wife claimed he had threatened to kill her lover. The state divorce court apparently made no findings on this, but entered a boilerplate order barring Dr. Emerson from threatening his wife.
Though this state order said nothing about firearms, a little-known federal law bars gun possession by people who are under such orders. Dr. Emerson not only failed to dispose of his guns, as the law required, but eventually brandished one in front of his wife and daughter. He was then prosecuted under the federal law, though for gun possession rather than gun misuse.
The instinctive reaction here is that Dr. Emerson is the very sort we'd like to disarm, trouble waiting to happen. But when the divorce court issued its order, Dr. Emerson hadn't been found guilty of anything. Had he been convicted of a felony, all agree he would have lost his right to keep and bear arms as well as his right to remain at liberty. Here, though, there was no trial, no conviction, no finding of misconduct or future dangerousness. So when the federal law barred Dr. Emerson from possessing guns, he was a citizen with a clean record, just like you and me. Hence his Second Amendment defense.
The hot constitutional question is whether the Second Amendment protects only states' rights to arm their own military forces, or whether it protects an individual right. If the states-rights view is correct, Dr. Emerson could have been disarmed with no constitutional worries -- and so could anyone else. But the Second Amendment's text and original meaning pretty clearly show that it protects individuals. The text, which is reprinted nearby, says the right belongs to people, not states. And in the Bill of Rights "the right of the people" refers to individuals, as we see in the First and Fourth Amendments.
Moreover, the Second Amendment is based on the British 1688 Bill of Rights and is related to right-to-bear-arms provisions in Framing-era state constitutions. The British right must have been individual; there were no states in England. Same for the state constitutional rights; a right mentioned in a state Bill of Rights, which protects citizens against the state government, can't belong to the state itself. So in the Framing era, the "right to bear arms" meant an individual right.
What about the militia? The Second Amendment secures a "right of the people," not of the militia; but in any event, as the Supreme Court held in 1939, the Framers used "militia" to refer to all adult able-bodied males under age 45. Even today, under the 1956 Militia Act, all male citizens between 18 and 45 are part of the militia. (Women are probably also included, given the Supreme Court's sex-equality precedents.) "Well-regulated militia" in late 1700s parlance meant the same thing -- "the body of the People capable of bearing Arms," which is how an early propsoal for the amendment defined it. And the individual-rights view is the nearly unanimous judgment of all the leading 1700s and 1800s commentators and cases.
Based on this evidence, federal Judge Sam Cummings concluded Dr. Emerson's gun possession (though not his gun misuse) was constitutionally protected. If the Second Amendment is to be taken seriously, then Judge Cummings was right, and the other lower court cases holding the contrary were wrong.
If, that is, the Second Amendment is to be taken seriously. The notion of a written, binding Constitution tells us it should be, but cases like this lead some to wonder. Why, they ask, should today's decisions be bound by the dead hand of the past? If we have a "living Constitution" onto which courts may graft new rights, why can't they prune away obsolete ones?
These are genuinely tough questions, which go far beyond just the Second Amendment, and which have been raised in past controversies by conservatives as well as liberals. Let me give a few responses.
First, government entirely by the sometimes hyperactive hand of the present also has flaws. The benefits of liberties, however real, are often less visible than the costs. When we see Dr. Emerson before the court, accused of making violent threats, it's tempting to treat the right to possess guns as a nuisance. But we don't as easily see the hundreds of thousands of people who use guns each year in self-defense, including separating spouses who defend themselves against would-be abusers.
Second, modern innovations that restrict traditional liberties are often oversold. Realistically, people willing to violate laws against violent crime will rarely be deterred by laws against gun possession. Conversely, if Dr. Emerson is the poster child for why some shouldn't have guns, he is equally an example of how the law could effectively punish people for misusing guns (by brandishing them in a threatening way) rather than just for having them. Maybe ignoring the Constitution is neither so valuable nor so necessary.
Third, while some think gun rights are "obsolete," others disagree. Since 1970, 15 states have enacted new state constitutional rights to bear arms or strengthened old ones; 44 constitutions now have such provisions. In the mid-1980s, nine states let pretty much all law-abiding adults get a license to carry concealed weapons; now the number is 31. A conclusion that the right is obsolete thus doesn't rest on any unambiguous consensus; it can rest only on the judge's personal policy preferences. Do we trust judges that much?
And finally, do we trust judges to determine when other provisions -- the Establishment Clause, the privilege against self-incrimination, the jury trial, the freedom of speech -- become obsolete, too?
If the Militia clause were missing, we would be arguing today about whether the founders meant to protect the right of the people to have the means by which they could challenge a tyrannical government militarily.
If the government may regulate arms, then please explain what it is that "shall not be infringed"?
Why couldn't our Founders have written: "The people have the right to keep and bear arms but that right may be infringed for good cause by Congress"? It is not so many words or so complicated that our Founders could not have written it if that was their meaning. That is not what is written.
Instead, our Founders stressed that the people of the United States would never have to fear their government because they would always have the right to have "every terrible implement of war".
There are no corners on a circle and there is no power granted to the government by the Constitution to infringe the right of the people to keep and bear arms.
a bit of rust is showing on your iron eagle.
This is as far as I read. Let me educate you on the definition of "well-regulated" as given by www.guncite.com:
Well Regulated
Of all the words in the Second Amendment, "well regulated" probably causes the most confusion. The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period (Oxford English Dictionary, 2nd Edition, 1989):
1) To control or direct by a rule, principle, method, etc.2) To adjust to some standard or requirement as for amount, degree, etc.
3) To adjust so as to ensure accuracy of operation.
4) To put in good order.
The first definition, to control by law in this case, was already provided for in the Constitution. It would have been unnecessary to repeat the need for that kind of regulation. For reference, here is the passage from Article I, Section 8 of the Constitution, granting the federal government the power to regulate the militia:
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
Some in their enthusiasm to belong to a well regulated militia have attempted to explain well regulated by using the definition "adjust so as to ensure accuracy." A regulated rifle is one that is sighted-in. However well regulated modifies militia, not arms. That definition is clearly inappropriate.
This leaves us with "to adjust to some standard..." or "to put in good order." Let's let Alexander Hamilton explain what is meant by well regulated in Federalist Paper No. 29:
The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.
--- See The Federalist Papers, No. 29.
"To put in good order" is the correct interpretation of well regulated, signifying a well disciplined, trained, and functioning militia.
This quote from the Journals of the Continental Congress, 1774-1789 also conveys the meaning of well regulated:
Resolved , That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army.
--- Saturday, December 13, 1777.
The Oxford English Dictionary, 2nd Edition, (1989) defines regulated in 1690 to have meant "properly disciplined" when describing soldiers:
[obsolete sense]b. Of troops: Properly disciplined. Obs. rare-1.
1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.
The text itself also suggests the fourth definition ("to put in good order"). Considering the adjective "well" and the context of the militia clause, which is more likely to ensure the security of a free state, a militia governed by numerous laws (or just the right amount of laws [depending on the meaning of "well"] ) or a well-disciplined and trained militia?