Opinion - Did the Founders want us to have GUNS? (SJ Mercury)

SJ Mercury News ^ | 12/11/02 | Opinion of the Editor

[NormsRevenge]

THE 9th U.S. Circuit Court of Appeals has issued a full-throated challenge to Attorney General John Ashcroft's view of the Second Amendment.

The Department of Justice, in a recent filing, and the Texas-based 5th Circuit, in a landmark decision, assert that the Second Amendment guarantees an individual's right to own guns. A three-judge panel of the 9th Circuit argues, in a unanimous decision, that it doesn't.

[pgyanke]

"The Second Amendment's awkward wording does invite dispute. The 5th Circuit has focused on the amendment's last clause, referring to ``the right of the people to keep and bear arms.'' The 9th Circuit emphasized the first, referring to the necessity of ``well-regulated'' militias."

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2nd Amendment to the United States Constitution: 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.

Article I, Section 10; Unites States Constitution, paragraph 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.


The militia is us. The National Guard belongs to the states. The government can't take our guns. Section 10 above says that states can't maintain troops and ships in time of peace. Doesn't sound like the founders intended the statement in the Bill of Rights to apply to the states... they specifically prohibited the states from having their own troops. If the state's rights to bear arms are to not be infringed upon then there is a direct conflict in the Constitution to this right.

The Bill of Rights is all about our liberty as citizens and the restraint of the government. Applying the 2nd Amendment to the state changes the character of the rest of the Bill of Rights. Let's (please God) not go there.

[Blue_Ridge_Mtn_Geek]

A lot hinges on what is meant by a "well regulated militia".

Understood as an organization that is answerable to the people, and existing as the ultimate check on attempts by illegitimate authority to pilfer their natural rights, enshrinement of a personal right to own and bear arms is a necessity for "a well regulated militia".

Understood as an obedient creature of the civil authorities (whether legislative, executive, or judicial), as an instrument for defending and enforcing their authority, then the right of all lawful citizens to keep and bear arms is simply an obstacle to a "well regulated militia", not a pre-requisite for it. However, this interpretation would make the entire 2nd amendment a non sequitur.

Thus it is the FIRST meaning that makes sense, 9th district appeals court or other attempted usurper of legitimate civil authority notwithstanding. Apparently even "strong central government" fans like Lawrence Tribe understand this; too bad the legal flakes on the 9th Circuit don't. SCOTUS needs to slap them down on this, as on so many other matters.

[PsyOp]

"The Supreme Court has barely mentioned the Second Amendment in 200 years, hard as that may be to believe."

Not hard to believe at all. For most of that time there was absolutely no question in anyones mind, including the Supreme Courts, what the intention of the founders was with regard to the 2d amendment. All one has to do is read their individual works and the Federalist / Anti-Federalist papers.

People who say that the founders intent cannot be known are trying to disuade the lazy from looking at our history for themselves. Obfuscations concerning the 2d amendment come directly from those who wish there was no such amendment and have no choice but to parse its wording to fit their gun-control agenda. And this is a reletively recent occurance.

The gun-control folks know they don't stand a chance in hell of passing a Constitutional Amendment banning guns, so they try to legislate them away from the state and federal court benches.

[Charles Martel]

I sure hope this 9th Circuit decision gets slapped down hard. If allowed to stand, the ruling affects far more than California. Time to split that circuit into two or three smaller groups of states, I'd say.

[Varmint Al]

Food for Thought

If the Second Amendment only pertains to a Well Regulated Militia, then women were left out of the Bill of Rights.

If the term The People in Second Amendment only means a Militia is allowed to possess arms, and a Militia is defined as All able-bodied MALES between certain age limits, then females were not  considered to have the inalienable right to keep and bear arms. But, if the Second Amendment term, The People, means all citizens, then men and women are born with equal rights protected by the Bill of Rights including the Second Amendment.

In all the multitude of writings about the Second Amendment and its interpretation, I have not heard this gender argument stated. Maybe I just missed it.

Beware: N.O.W. - and other women organizations, you were left out of the Bill of Rights, If "The People" meant only able-bodied males in the Second Amendment, it must have meant the same thing in all the rest of the 10 Amendments.....

Here is the argument in its simplest terms:
A = The People
B = The militia
W = women
If A only means B and B excludes W then A excludes W.

The next time someone argues that the Second Amendment only applies to The Militia, try this logic on them. Also, point out that The Second Amendment, ratified in 1787, could not possibly refer to the National Guard, which was created by an act of Congress in 1917.
Conclusion: "The People" in the Second Amendment meant and still means "All The People" including women.

[PsyOp]

"I think a great many people back then who didn't raise their own animals for food, probably hunted for their own food."

Correct. I still have my grandfathers shotgun and mounted elk-head. He hunted Duck and Elk to put food on the table in North Dakota. Without it, they would have starved. And that was in the the 1930's and 40's.

[hobbes1]

Hmmmm....Wonder why Reinhardton, or this moron, both fail to account for the simplest of facts.

The Constitution clearly makes distinctions between "the people" and "the states" if only states can have guns, then only states can have free speech, freedom of religion, protection against unreasonable search and seizure, and the 10th amendment contains an inexplicable redundancy....

[AdamSelene235]

Damn, I didn't realize that Montana was in the 9th.

Not exactly the state in which I would choose to confiscate guns.

[TC Rider]

The Supreme Court last directly addressed the Second Amendment in 1939, in United States vs. Miller. The wording of that decision, upholding a federal law banning sawed-off shotguns, was confusing, but endorsed the view of protecting militias. Since then, lower federal courts have cited the case in upholding gun-control laws.

Confusing? Not to me. The '39 court found that a sawed-off shotgun was not a suitable weapon for militias.

[xzins]

If the state's rights to bear arms are to not be infringed upon then there is a direct conflict in the Constitution to this right.

Excellent point. Thanks.

[the gillman@blacklagoon.com]

I heard there was a recent ruling by the Supremes regarding the second. Related to past felony convictions-gun dealer from Texas. Haven't seen it here.

Any news?

[Tailgunner Joe]

bang.

[skeeter]

The SJ Mercury isn't a fit stand-in for TP. A total waste of recycled wood.

[steve50]

A lot hinges on what is meant by a "well regulated militia".

I've seen the argument that "well regulated" to a British gunsmith of the era meant a consistent bore to accept common ammunition.

The published opinions the authors of the Constitution leave little doubt, the right to bear is to protect us from our own government

[Constitutional Patriot]

Typical left-wing pablum. Yeah...I'm sure that after the colonists declared their independence and took up arms as citizens of a new nation against a tyrannical government, they sought to preserve the right to self defense by giving the government the right to keep and bear arms.

You have to suspend logic and disbelief to buy one ounce of what they are trying to sell. Lets hope this gets to the USSC before the left-wing further infiltrates that judicial body. I want to see Scalia delivering the majority opinion.

[CaptRon]

if the Supreme Court eventually agrees that the right to bear arms is fundamental, deserving as much protection as free speech.

Guess the author misses the point. Free speech; first amendment. Right to bear arms; second amendment. Not the 9 or the 10th but directly after the first. Do you think may the founding fathers thought the second was necessary to protect the first?

[Trailerpark Badass]

The Second Amendment's awkward wording does invite dispute.

Possibly, if the words of the 2nd Amendment were the only evidence we had to work with. Fortunately, we also have plenty of contemporaneous writings with which we can determine the Founders' intent. And only by ignoring those writings can one conclude that the 2nd is not an individual right.

[Constitutional Patriot]

"How is the National Guard, which answers to the President and which trains with federal weapons, on federal land, paid for by federal money, and which federal charges apply to those who would trespass on the camps, a State militia, capable of protecting individual states from federal tyranny, as intended by the Framers?"

Don't even engage the National Guard argument. The national guard did not even exist for more than 100 years after the Bill of Rights was adopted. Furthermore, the National Guard has nothing to do with the 2nd Amendment. It's about the people, not the government. The government has no rights. The right of the people to keep and bear arms shall not be infringed.

[semaj]

..."You'd never know from the harangues of the gun lobby, but the 9th Circuit's position has been the standard view for more than 60 years..."

What was the standard view the previous 140 years?

[PatrioticAmerican]

Naw. They used theirs, then decided that we should give ours up. /sarcasm