Is a Reason a Restriction? The New York Times on the Second Amendment

Brian Doherty | January 14, 2008

Prepare for more, much more, of this sort of thing as the Second Amendment promises to be the hot amendment of 2008, as the Supreme Court takes its first deep look at it since the 1930s in the Heller case.

Adam Liptak at the New York Times muses on the complications that come from the Amendment's initial clause that many read as qualifying and thus limiting the purpose of the Amendment:

There is only one other provision of the Constitution that has a similar justifying clause. Congress is given the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

But the justifying, or purpose, clause there does not seem to limit the operative one. All manner of works, useful and not, receive copyright protection, and in 2003 the Supreme Court allowed Congress to extend copyright terms by 20 years even though that after-the-fact extension was not obviously linked to the clause’s purpose.

Many state constitutions have clauses that say why various rights are guaranteed. In an article surveying them in the New York University Law Review in 1998, Eugene Volokh concluded that the fit between purpose and command is often loose, “casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause.”

Plus, check out their thrilling infographic breaking down some of the ways in which legal scholars have debated and interpreted the meaning of every clause of this most difficult little Amendment.

A veritable armory of reason articles on the Second Amendment and guns.

Comments

|1.14.08 @ 11:52AM|#

Doesn't "the right of the people to be secure in their persons" yadda yadda yadda refute Tushnet's contention that "the right of the people" refers only to a collective right?

|1.14.08 @ 12:00PM|#

Shhh, joe. Let us put words into your mouth.

|1.14.08 @ 12:00PM|#

But do the gun controlling liberals actually believe that a militia is necessary to the security of a free state?

|1.14.08 @ 12:00PM|#

Apparently, in the minds of some statists, "shall not be infringed" means "can be infringed if we interpret the words to mean what we wish it said".

Ditto for "no laws".

|1.14.08 @ 12:03PM|#

Note that the phrase is "security of a free state," not "freedom of the people" or some such thing.

That opening phrase is about how to provide security. We know that the Founders has a tremendous distaste for a standing army, and wanted military security to be provided by a citizens' militia rather than professionals, who they equated with the Hessians.

I don't think anybody believes that a "militia" is necessary for the security of a state anymore. Some believe that individual gun ownership is necessary for freedom with a secure state, but that's a different point.

Episiarch|1.14.08 @ 12:04PM|#

Selectively approving of certain amendments while publicly proclaiming support for the full Bill of Rights is quite common.

|1.14.08 @ 12:12PM|#

I don't think anybody believes that a "militia" is necessary for the security of a state anymore. Some believe that individual gun ownership is necessary for freedom with a secure state, but that's a different point.

Well, you're unquestionably wrong about that, joe. I do, and so do many other people. Even a modicum of googling would reveal the plethora of people who realize that even if we seriously downsized our military, the presence of lots of gun owners would give pause to any hostile foreign country thinking of invading. Look at how a few private individuals wielding guns in Iraq have stymied a superpower.

|1.14.08 @ 12:13PM|#

The really interesting thing about US vs. Miller is that the government's contention that the 2nd Amendment only applies to those arms that are useful to a militia.

The Supreme Court (erroneously) came to the conclusion that short-barreled shotguns are not military arms, and therefore the federal government could regulate those.

VM|1.14.08 @ 12:13PM|#

"the presence of lots of gun owners would give pause to any hostile foreign country thinking of invading"

huh?

like St. Kitts? or Canada?

robc|1.14.08 @ 12:15PM|#

VM,

When was the last time anyone invaded either?

1812 for Canada, I think. Not sure about St. Kitts.

Elemenope|1.14.08 @ 12:16PM|#

I agree with Joe that the first clause of the 2nd is archaic and inapplicable to the modern context, but I disagree with the article's sentiment that purpose clauses should be taken as mere code comments rather than intended limitations. The copyright extensions, for example, referred to above are an abomination; it is quite clear from the text that copyrights *exist* only to advance the useful arts by incentivizing the production of new ideas and products. Practically indefinite copyrights very clearly have the opposite effect by isolating key pieces of culture from the common pool from which is composed other cultural items.

Thus, I believe in the mooting of the 2nd amendment (as militias are no longer *the* reason why everyone should/can have a gun), and believe that the proper root of the right to bear arms lies in the 4th (security of your property and person) and the 14th (apply that right against the several states).

Elemenope|1.14.08 @ 12:17PM|#

VM --

I think the better example would be Switzerland. Canada is also good (when's the last time they were invaded?)

VM|1.14.08 @ 12:18PM|#

Ele -

sure - CH is a good example, but the quick jump to the "that's why the US is safe" is making a few convenient short cuts.

Boer war is another example. and during WW2, CH was valuable as the European bank :)

and surprisingly to RC, it isn't in the EU (yet)

|1.14.08 @ 12:20PM|#

The 2nd Amendment is a Rorschach test. The people who don't like guns see a collective right. The people who like guns or who can read the law objectively or who simply have a reasonable knowledge of American history, see an individual right. You can argue the framers were wrongheaded in codifying this right or you can argue that the nature of weaponry has changed far beyond what the framer's might have imagined... but it is very hard to argue the justifying clause is a limiting clause without looking very silly or very biased.

That Guy|1.14.08 @ 12:20PM|#

I don't think anybody believes that a "militia" is necessary for the security of a state anymore . . .

WOLVERINES ! ! ! ! !

|1.14.08 @ 12:23PM|#

prolefeed,

Your admission that the large size of our military does provide security refutes your assertion that you are wrong.

"Militias can provide security, too" is not a statement that only militias can provide security.

At this point, when you read something from me that you disagree with, it would probably be wise to take a moment to think about it, rather than leaping to the conclusion that I must not know what I'm talking about.

|1.14.08 @ 12:23PM|#

Er, "your assertion that I am wrong."

|1.14.08 @ 12:24PM|#

This 2nd Amendment case and subsequent publicity is the GOP's secret weapon in the '08 presidential race. The media will ignore the power of this issue and assume everyone wants more gun control. While the GOP will quietly under the MSM radar eviscerate Obama or Hillary, two of the most anti-gun candidates even to run for President.

|1.14.08 @ 12:24PM|#

Naturally, I see an individual right. I'm praying the SCOTUS sees it the same way.

|1.14.08 @ 12:24PM|#

You can argue the framers were wrongheaded in codifying this right or you can argue that the nature of weaponry has changed far beyond what the framer's might have imagined... but it is very hard to argue the justifying clause is a limiting clause without looking very silly or very biased.

In which case they would also have to argue that the 1st Amendment doesn't cover radio, television, or the internet.

There were also a number of primitive but effective precursors to modern day multi-shot weapons when the Bill of Rights were written.

amonkey|1.14.08 @ 12:25PM|#

the proper root of the right to bear arms lies in the 4th (security of your property and person) and the 14th (apply that right against the several states).

What reading of the text "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" would lead to a right to bear arms? The fourth is all about preventing the government from coming into your house, not individuals. There's an easier amendment that does talk about right to bear arms, and that's the second.

|1.14.08 @ 12:26PM|#

Interestingly enough, neither Miller nor his lawyer were present for the Supreme Court hearing on the case. It was decided without anyone available to argue against the state's position.

|1.14.08 @ 12:27PM|#

In other words, as a little bit of googling would quickly reveal, it was their banishment of a standing army that makes a militia necessary for the security of a state. In a free state - ie, one without improper threats to freedom, like a standing army - a militia is necessary for security. Somebody has to point guns at the evidoers.

kinnath|1.14.08 @ 12:27PM|#

Note that the phrase is "security of a free state," . . .

The issue is not whether the people need the resources to resist a foreign invader.

The issue is whether the people need the resources to remove the government.

|1.14.08 @ 12:28PM|#

People who use phrases like "clear meaning" and "can read" to describe one side of a debate that's been raging for centuries are wanking.

|1.14.08 @ 12:28PM|#

In which case they would also have to argue that the 1st Amendment doesn't cover radio, television,

Didn't the FCC already decide that to be the case?

|1.14.08 @ 12:29PM|#

I didn't say they would be good arguments, Mediageek, but I think questioning the right of private citizens to own hand grenades or surface-to-air missiles (or Class III firearms) at least makes for an interesting discussion, whereas arguing that the 2nd amendment exists to preserve militias strikes me as silly.

Guy Montag|1.14.08 @ 12:30PM|#

I propose abolishing all of the anti-gun laws at the same time we abolish anti-trust and collective bargaining laws.

More bang for the buck says I!

|1.14.08 @ 12:31PM|#

kinnath,

That is not the issue behind the the "security of a...state," but behind the inclusion of the word "free."

Gray Ghost|1.14.08 @ 12:31PM|#

Mediageek, though Miller dealt with short-barreled shotguns, wasn't the case also used as justification for sweeping restrictions on ownership of submachine guns? Or am I conflating two completely separate things?

As soon as I heard it, I liked thoreau's statement that citizens should be able to get what the cops' get. If the cops get to carry SAWs---which seems crazy to me; I don't remember my dad the cop talking about being taught suppressive fire at the Academy---then citizens should be able to own one with a minimum of fuss. And if you need a second mortgage to afford the ammo, that's your problem...

Not wanting to spend too much time on Liptak's observations, but just want to say that "useful Arts" meant something a lot different in 1789 than it does today. The usage is similar to "the Manual Arts", a fancy name for the vocational trades. Viewed that way, it applies to patent protection, where an inquiry into the arts' usefulness---utility---is definitely done. Also, his critique of copyright term does not properly apply to the preceeding clause, as it needs to for his metaphor to make sense, but rather to the "limited Times" portion of the second clause. That is just nit-picking as I think he's dead right: Life + 70 years in no way corresponds to any reasonable reading of "limited times", unless you feel that all times except infinity are limited. Who knew the Supreme Court was composed of at least five mathematicians?

|1.14.08 @ 12:32PM|#

Silly arguments, Joe, often generate significant followings. And suggesting the debate has "raged" for "centuries" is much better wanking than I can muster. Joe Citizen could own a machine gun with no government oversight until the National Firearms Act of 1934. Contrary to what you might think, Joe, recorded history did not begin with FDR.

kinnath|1.14.08 @ 12:33PM|#

joe, was that an agreement or a disagreement?

|1.14.08 @ 12:33PM|#

Even if the amendment is read only to justify the existence of militias, a basic knowledge of what a militia is - private citizens showing up with their own weaponry when called by the government - presupposes that they will have that weaponry. Having a populace that bears arms is necessary to have a militia.

|1.14.08 @ 12:33PM|#

I'm fundamentally uninterested in arguing the right to own surface-to-air missiles when there are people who are prohibited from carrying or keeping a gun for their own personal security.

The same could be said for the arbitrary regulations stating that you will go to jail if you buy an imported rifle that doesn't contain an arbitrary number of parts that were made in the United States.

Elemenope|1.14.08 @ 12:34PM|#

Jose Ortega y Gasset --

For most people, I suppose, that is true. However, the text itself does not lend to anything but a confusing point on an archaic social situation. (Militia? WTF? This is 2008!) The history of the second amendment actually includes a great push from southern states who were primarily concerned with being able to put down slave insurrections; that's guns as a collective right, and thoroughly despicable reasons for that right all in a neat package. I really don't think that individual right readers for the second should hang their hat on history.

One can interpret the second as gibberish for a bygone age and still believe in a right to bear arms. I, for example, read the 2nd amendment as describing a collective right, but believe that the individual right corresponding still exists in the text via the 4th.

Hey, what about the Ninth Amendment? Maybe some enterprising judge could peer under Bork's inkblot and crack that fucker open to find a whole host of rights, like informational privacy, unrestrained consumption (e.g. drugs), right to preserve and/or defend one's own life, and a personal right to bear semi-autos. One can dream...

|1.14.08 @ 12:34PM|#

Jose,

There were considerable restrictions on gun ownership going back well into the 1800s. There were entire towns and cities, particularly in the west, which banned the carrying of firearms.

I'm afraid you'll have to do better than calling me silly if you want to throw down.

|1.14.08 @ 12:35PM|#

kinnath,

It was neither. It was an exposition.

I'm not trying to "win" anything, but to discuss the ideas.

|1.14.08 @ 12:36PM|#

The Founders clearly intended an armed population to be a counterpoise to federal and, to a lesser extent, state power. I wonder where they'd draw the line today? Nukes for every family would indubitably result in death and mayhem, but I suppose there might be a reasonable line between that and personal firearms.

What I don't want is for the government to be armed and the general population to be unarmed. Though we're about there, aren't we?

|1.14.08 @ 12:37PM|#

Um, there are approximatly 300 million firearms in circulation, Pro Lib. No, we are not remotely close to "there."

kinnath|1.14.08 @ 12:38PM|#

I'm not trying to "win" anything, but to discuss the ideas.

OK, what point were you bringing forward for discussion?

|1.14.08 @ 12:38PM|#

What I don't want is for the government to be armed and the general population to be unarmed. Though we're about there, aren't we?

Well, if necessary, I can arm and help defend my whole neighborhood. I hope it never comes to that, though.

|1.14.08 @ 12:39PM|#

joe,

How many people have those firearms? If one guy has 300 million, well, that's a problem ☺

Ah, looking postward, I see that sage may be that guy!

Guy Montag|1.14.08 @ 12:40PM|#

Miller case, I love it! Means I get to have real assault rifles instead of those assault-looking rifles!

Too bad all of those other silly laws need to be gotten rid of before it is inexpensive enough for me to afford.

|1.14.08 @ 12:42PM|#

Mediageek, though Miller dealt with short-barreled shotguns, wasn't the case also used as justification for sweeping restrictions on ownership of submachine guns? Or am I conflating two completely separate things?

Yes. The Miller case was an attempt to challenge the federal government's institution of a "transfer tax" on short barreled rifles and shotguns, fully-automatic firearms, sound moderators and weapons that fall under the catch-all category of "any other weapon*"

Miller's lawyer (who's name escapes me at the moment) had argued that the transfer tax, which was an outrageous $200, amounted to an infringement on the 2nd Amendment.

FDR's attorney general was evidently on record as stating that they couldn't ban guns outright without violating the 2nd Amendment, so they would simply institute an exorbitant tax on them.

I've heard it stated, but been unable to pin down a source, that FDR's AG wanted to make the NFA apply to handguns, as well as institute taxation on ammunition.


*James Bondish pen guns would be one example of this.

Guy Montag|1.14.08 @ 12:45PM|#

James Bondish pen guns . . .

Do they make those belt-fed or do I have to make them myself?

Mike M.|1.14.08 @ 12:47PM|#

I wonder if this is an emanation, or more of a penumbra.

|1.14.08 @ 12:48PM|#

More of an aura.

|1.14.08 @ 12:48PM|#

Guy-

The ones I've seen are all single-shot and chambered in .22.

They're cute as a novelty item, but have very little utility.

Thus far, the only AOW that really interests me would be the Serbu Super Shorty. But even then my interest in it is wholly irrational.

joe|1.14.08 @ 12:50PM|#

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|1.14.08 @ 12:50PM|#

"I don't think anybody believes that a "militia" is necessary for the security of a state anymore. Some believe that individual gun ownership is necessary for freedom with a secure state, but that's a different point."

Actually Joe, in this day and age of asymetrical warfare and terrorism as the primary means of our enemies, a militia in the form of a well armed citizenery is more important to security now than it ever was. Our police and military cannot be everywhere at once or protect every piece of critical infrastructure and against every form of attack, a well armed citzenery can.

Guy Montag|1.14.08 @ 12:51PM|#

mediageek,

Aw, okay. [kicks pebble]

I thought they would be cooler. If it isn't belt fed it is just not that awsome.

I believe I will call my blanket repeal of all gun laws "Montag's Awsome Firearms Reform"!

|1.14.08 @ 12:51PM|#

In the 21st Century, we will need a pack not a mob to defend this country.

|1.14.08 @ 12:51PM|#

Joe, individual political jurisdictions have always passed unconstitutional laws and I am quite certain they always will. To call this a "raging" debate that has for "centuries" is just not very serious... and if you're not going to be serious, Joe, at least be funny.

During the first century after the Bill of Rights was adopted there was very little serious legal debate about what exactly the amendment meant. It really flies below the radar until Reconstruction where the nation had to face the little issue of African-Americans packing heat. Even then, things are relatively quiet until the past half century or so... at least on the meaning of purpose clause. Why? Because despite local ordinances the American people generally enjoyed fairly broad rights concerning firearms until the 1930s. Until 1968, you could order a gun through the mail. The more cities and states the federal government have infringed upon this right, the more the interpretation of the U.S. Constitution has become an issue.

|1.14.08 @ 12:52PM|#

I wonder where they'd draw the line today? Nukes for every family would indubitably result in death and mayhem, but I suppose there might be a reasonable line between that and personal firearms.

Given the mind-bogglingly stupid multitudes of gun control laws that are currently on the books, I see no reason whatsoever to debate private ownership of nukes and such.

|1.14.08 @ 12:55PM|#

I thought they would be cooler. If it isn't belt fed it is just not that awsome.

There's nothing quite like a well-fed belt-fed.

The Wine Commonsewer|1.14.08 @ 12:57PM|#

Naturally, I see an individual right. I'm praying the SCOTUS sees it the same way.

Take a lesson from that old man praying for peace at the wall in Jerusalem.

|1.14.08 @ 12:57PM|#

"I wonder where they'd draw the line today? Nukes for every family would indubitably result in death and mayhem, but I suppose there might be a reasonable line between that and personal firearms."

Of course the purpose language answers that. The purpose of the right is to "keep and maintain a well armed malitia." To me that purpose governs the scopre of gun rights. What does a "well armed malitia" really need and further what kinds of weapons would the citizens keep in such a malitia versus the government? Back in the day, you didn't bring your own Napoleon. You showed up with your personal weapon and the government provided the artillery. Same thing applies today. The 2nd Amendment gaurentees the right to keep and bear those arms sufficient for the government to keep and maitain a well armed malitia. That is not going to include cruise missiles and 155mm howitzers. It will include virtually any side arm or non crew served personal weapon.

Dave W.|1.14.08 @ 12:59PM|#

I think there is a reasonable compromise between reading the first part of the second Amendment archaicly, and reading it as a nullity.

Specifically, even if the militias themselves no longer exist, guns can be regulated and I think the Second Amendment gives the power to regulate. The regulations that make sense now are probably different than what would have made sense in 1790, but I think the principle is the same. This regulatory power is what the government should use to make sure that we don't have nukes or bazookas and that the triggers aren't too light. Whether this regulatory power means that government should be able to keep guns out of densely populated or high crime areas, I do not know. I don't think the language of the Amendment itself is intended to raise that question, but not answer it (that's why we have a SCOTUS).

Whenever a gunnut tells a court that the first part of the 2d Amendment means nothing, I think s/he is effectively telling the court that it is okay to regard the second half as a nullity if so inclined. Bat stratergy.

|1.14.08 @ 1:00PM|#

I'm cautiously optimistic about how Heller will turn out.

The DC legal team has committed a number of gaffes, and made a bunch of arguments not even related to the topic at hand in an attempt to obfuscate their plainly weak legal stance.

They even recently fired their lead attorney on the case.

That said, I don't think the result will be that I'll be able to bop down to Ye Olde Gonne Shoppe and snap up a freshly minted submachinegun. (Not that I would.)

The biggest fallout from a pro-rights reading from the Supreme Court will be the fallout in places like Chicago where firearms are outright prohibited.

Brandybuck|1.14.08 @ 1:00PM|#

I've never understood people who argued that the 2nd Amendment referred to a collective right for government's to have a militia. If it was to refer to the states, then it would have said states (like the Constitution does elsewhere). If that is what it really meant, then where is the amendment allowing police officers (not otherwise in a militia) to carry a firearm? Taking this amendment out of context is absolutely wrong.

I can see no other interpretation than a right of individuals to own carry firearms. "People" is merely the plural form of "person", and does not imply a group right to be held in trust by a state.

|1.14.08 @ 1:00PM|#

Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour.

Gilbert Martin|1.14.08 @ 1:01PM|#

"You can argue the framers were wrongheaded in codifying this right or you can argue that the nature of weaponry has changed far beyond what the framer's might have imagined... but it is very hard to argue the justifying clause is a limiting clause without looking very silly or very biased."

Well let's see.

The "militia" part in in the dependent clause of the sentence and the "right of the people to keep and bear arms" is in the independent clause of the sentence. According to the rules of English grammar, nothing in an independent clause is dependent on anything in a dependent clause.

And that's that.

|1.14.08 @ 1:01PM|#

This regulatory power is what the government should use to make sure that we don't have nukes or bazookas and that the triggers aren't too light.

Let the record show that Dave W. condones locking up Olympic Free Pistol competitors.

|1.14.08 @ 1:02PM|#

No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

|1.14.08 @ 1:03PM|#

I agree with MG. Given the current composition of the Supreme Court, I think they'll interpret the 2nd as an individual right and that outright bans are unconstitutional. I think they'll go out of their way to point out that states or other political subdivisions can still do things like regulate concealed weapons or how firearms are transported but when it comes to having a firearm in the home, I think they'll come down on the side of an individual right.

|1.14.08 @ 1:04PM|#

kinnath,

In that particular statement, I was trying to bring forth the idea that the first clause of the 2nd Amendment does not state that militias are necessary in order to counterbalance the government, but to provide security in a situation where there is not standing army.

|1.14.08 @ 1:04PM|#

Dave w, RE keeping guns out of densely populated, high crime areas. This is really what it's all about right? problem is it's simply not possible. the only people you will restrict are law abiding citizens, and those are the people you want to have guns.

|1.14.08 @ 1:04PM|#

The technology argument is fairly wobbly.

After all, Lewis & Clark were armed with an air rifle that could rapidly be used to fire 22 rounds that were powerful enough to drop north American big game.

The Wine Commonsewer|1.14.08 @ 1:05PM|#

Jose, I see it going the way of Kelo. But, I'm a glass half empty sort of person.

|1.14.08 @ 1:05PM|#

namestealer, I'd say that figuring out the truth, even unconnected to backing up one's political position, is a quite reasonable purpose.

You got it exactly wrong to link to that term's definition. I'm probably the only one on this threat who is NOT trying to win anything.

|1.14.08 @ 1:06PM|#

Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny, or private self defense.

|1.14.08 @ 1:09PM|#

Interesting....
do the courts ever look to independent writings of the founders regarding their intentions when interpreting the founding documents?

|1.14.08 @ 1:09PM|#

Oh, ok, Jose. You tell me something didn't happen, I show you it did, and you say "Well, that's the exception."

For your edification, laws banning the carrying of firearms in western towns were never, ever struck down in court on 2nd Amendment grounds. I don't think it would have occured to anyone to try.

|1.14.08 @ 1:09PM|#

Joe, I figured out the truth and then came to my political position via that route.

What's that make me? ;-)

The Wine Commonsewer|1.14.08 @ 1:10PM|#

do the courts ever look to independent writings of the founders regarding their intentions when interpreting the founding documents?

I wouldn't recommend holding your breath while waiting for them to do that. You might turn blue.

|1.14.08 @ 1:10PM|#

For your edification, laws banning the carrying of firearms in western towns were never, ever struck down in court on 2nd Amendment grounds. I don't think it would have occured to anyone to try.

Nor were the ones in the East or South banning the carrying of arms for wholly racist reasons.

|1.14.08 @ 1:11PM|#

twc,
too bad, cause that would likely settle most of these debates.

|1.14.08 @ 1:12PM|#

A free people ought not only to be armed and disciplined but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.

|1.14.08 @ 1:12PM|#

Quite right, mediageek. Those abhorrent laws were never struck down, either.

So much for the idea that no one ever thought the government could regulate gun ownership before the 30s.

|1.14.08 @ 1:14PM|#

Jose and Joe, come off it. your still arguing over joe's use of the term "for centuries". It's basically just semantics.

|1.14.08 @ 1:14PM|#

And, of course, even in the days of militias, the government regularly places regulations on gun ownership, even pointing to the fact that people were in those militias as justification.

The Wine Commonsewer|1.14.08 @ 1:15PM|#

Pinette, it would seem logical to consider all the context the founders took into account and I am not clear why that doesn't play well. Perhaps because it points to an unwanted conclusion or perhaps because we have a so-called Living Constitution that evolves, therefore rendering intent to be as obsolete as a state-of-the-art musket.

|1.14.08 @ 1:16PM|#

"So much for the idea that no one ever thought the government could regulate gun ownership before the 30s."

They didn't take the rights of white people away just blacks. I would imagine in the view of the people who passed those laws, blacks carrying guns was something that contributed to the common defense. I don't think they were reputiating the 2nd Amendment as saying that the Bill of Rights really didn't apply when it comes to black people, as they did with every other Amendment.

|1.14.08 @ 1:17PM|#

Pinette,

There is an important point that goes beyond the semantics.

Jose wishes to advance a thesis that the idea that the government could regulate gun ownership stems from modern, liberal, activist courts. (You know, those activist courts that don't strike down laws, but that's another thread...)

And the historical record just doesn't back that up.

Dave W.|1.14.08 @ 1:17PM|#

And, of course, even in the days of militias, the government regularly places regulations on gun ownership, even pointing to the fact that people were in those militias as justification.

which, to me, is a powerful reason to suggest that the power to regulate should remain in modern interpretation of the amendment even though the militias are gone.

|1.14.08 @ 1:17PM|#

That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms.

Or drinking a decent brew.

|1.14.08 @ 1:18PM|#

That's a good point, John.

The laws banning anyone from carrying a gun in some towns refute Jose's idea much better.

|1.14.08 @ 1:18PM|#

I'm hard pressed to come up with any sweeping federal gun regulations prior to the National Firearms Act.

|1.14.08 @ 1:19PM|#

Now, regulate and ban are two different matters.

They clearly can't ban gun ownership outright. I don't think the DC law, for example, has a prayer.

|1.14.08 @ 1:19PM|#

well there ya go, i guess you guys would have eventually started on that point after you settled how long the debate had been raging, and what actually constitutes that debate (laws restricting use or people actually trying to fight those laws).
fwiw, joe, I think you allways tend to be a more rational debater.

|1.14.08 @ 1:20PM|#

mediageek,

How does the concept of "sweeping" come into this?

|1.14.08 @ 1:20PM|#

Joe, you forgot to say "I win! HAHAHAHA sucker!" with that last one.

|1.14.08 @ 1:23PM|#

How does the concept of "sweeping" come into this?

Because prior to FDR, most gun control laws were local or state, not federal.

|1.14.08 @ 1:25PM|#

Also, what's your source for Western/frontier gun control laws?

I know that in Colorado, for instance, open carry is completely legal and codified in the state's constitution.

|1.14.08 @ 1:26PM|#

If you're going to make my points for me, it takes some of the fun out this. It didn't occur to anyone to bitch about turning in shootin' irons to the sheriff while in town for a two-dollar hump because very few people really wondered what the purpose clause meant.

The legal debate over the purpose clause is relatively recent and a direct result of the ongoing regulation and restriction on the possession of firearms. And if perfect candor, if I had to drop off my hog leg to visit Ms. Kitty's, I would do so if asked politely.

Oh, and would you extend me the courtesy of advancing my own theses? I haven't said a damn thing about the "liberal, activist courts." I do, in fact, think the government has a right to regulate firearms but not to prohibit private ownership. And this is exactly what I think SCOTUS will acknowledge... that the right to keep and bear arms is individual, not collective.

Jennifer|1.14.08 @ 1:26PM|#

Grammatically, I always interpreted the "well-regulated" militia clause to be an explanation of the right to bear arms, not a restriction of it.

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. In other words, "since we're going to need an Army to keep the state secure, we don't want to limit the right of the people to bear arms either, because letting government agents be the only ones allowed to have weapons is a recipe for tyranny."

"Fire, being necessary to a technological society, the right of the people to keep and bear fire extinguishers shall not be infringed." That doesn't mean you can only have a fire extinguisher if you belong to a technological society.

Given that the founders had just finished fighting a revolution which wouldn't have had a chance if they hadn't had guns, and further given how the founders spoke at length against the dangers of tyranny, I find it highly unlikely that they intended the government to be the ones deciding who does and does not get to own a weapon.

LibertyPlease|1.14.08 @ 1:27PM|#

I believe I will call my blanket repeal of all gun laws "Montag's Awsome Firearms Reform"!

I'm on board!

|1.14.08 @ 1:27PM|#

I don't think anybody believes that a "militia" is necessary for the security of a state anymore.

You left out the most important word - "free".

And of course if that is the common belief, then the proper way to go about changing things is to ratify another amendment overturning the second one.

But playing by the rules is for suckers, it's a lot more fun to play "intellectually greater than thou" by redefining what the original intent was. Even though the original intent never seemed to result in gun control until people had the desire to reinterpret the amendment in the 20th century.

|1.14.08 @ 1:29PM|#

Do we really want these people the be the only folks with firearms?

Yeah, I'm a little paranoid.
Or not.

*via the Agitator, thanks to Radley Balko.

|1.14.08 @ 1:29PM|#

mediageek,

I've read about those historical laws in many different sources. I wasn't talking about the modern law in Colorado, btw.

|1.14.08 @ 1:31PM|#

Joe, neither was I. The law of open carry was codified into Colorado's constitution when they drafted it in the 1800's.

kinnath|1.14.08 @ 1:36PM|#

In that particular statement, I was trying to bring forth the idea that the first clause of the 2nd Amendment does not state that militias are necessary in order to counterbalance the government, but to provide security in a situation where there is not standing army.

Thanks joe. I didn't get that from the orginal brief message.

However, I disagree with you. I think free state means free state. Given the context of the years just after the revolutionary war, "free" is more that just flowery prose.

The founding fathers committed high treason and rebelled against their sovereign government. They were openly worried about replacing the old oppresive government with a new oppresive government. Their fear of a standing army was just as much about ensuring the freedom of the people from the new government as anything else.

Geotpf|1.14.08 @ 1:37PM|#

There's multiple problems with the second amendment.

First, define "arms". Is a nuclear bomb an "arm"? Is a tank? A fighter jet? Chemical weapons? Anthrax?

If those are arms, then it must be illegal to ban private ownership of them if it's illegal to ban or regulate any other type of arm (such as handguns or shotguns). If it's legal ban them, it must therefore be legal to ban any other type of arm, such as handguns.

The second problem is the definition of a "well-regulated militia". Ignoring the conumdrum of the first problem, I personally believe the militia is probably something along the lines of all sane, adult, non-felon, citizens of the US. However, even with this fairly broad definition, something like a background check before any weapon purchase is perfectly constitutional (to make sure the purchaser of a weapon is actually a member of the militia). Also, requiring, say, fire arm training before purchasing a weapon is certainly allowed under the "well-regulated" part.

In any case, this issue certainly hurts Democrats and helps Republicans. Taking a pro-gun control stance hurts the Democrats in rural areas much more than it helps them in urban ones. Of course, a rather broad reading of the second amendment is also correct policy, as well as correct politics, IMHO.

Gilbert Martin|1.14.08 @ 1:38PM|#

"Jose wishes to advance a thesis that the idea that the government could regulate gun ownership stems from modern, liberal, activist courts. (You know, those activist courts that don't strike down laws, but that's another thread...)

And the historical record just doesn't back that up."

The idea that the 2nd Amendment refers to a "collective" right of states rather than an individual right is indeed a 20th century invention.

The Bill of Rights was originally intended to constrain only the federal government - not state or local governments, thus the fact that some towns in the old west banned carrying firearms does not apply.

In fact, despite the 20th century description of the 1st Amendment mandating a "wall of separation between church and state" ( a phrase that's not actually in the Constitution and was lifted from a letter written by Thomas Jefferson, who wasn't even in the country when the Constitution was ratified and had nothing to do with drafting it), some of the states had official state religions at the time the Constitution was ratified and continued to have them up until some time in the 1820's. They were NOT immediately ruled unconstitutional after ratification.

It was in the 20th century that the courts selectivly interpreted "equal protection" in the 14th Amendment to mean that some of the Bill of Rights constrained state and local governments as well.

|1.14.08 @ 1:39PM|#

Geotpf, would you like me to subject your post to a thorough breakdown, or would it all just fall on blind eyes?

Other Matt|1.14.08 @ 1:40PM|#

Mediageek-

You say The Supreme Court (erroneously) came to the conclusion that short-barreled shotguns are not military arms, and therefore the federal government could regulate those.

Then say that Miller wasn't there. Dammit, I would have thought that YOU would have avoided that trap. Let's say again, they did NOT conclude that a short barrelled shotgun was not a military weapon. They concluded that there was nothing within the judicial notice of the court saying so (meaning, nobody gave a case to the contrary). Huge difference. I expect Heller is going to show up for this one.

Haven't had the chance to read all yet, so if you corrected yourself, apologies.

Other Matt|1.14.08 @ 1:42PM|#

Grammatically, I always interpreted the "well-regulated" militia clause to be an explanation of the right to bear arms, not a restriction of it.

Kinda means "well behaved", too, not "regulated" as we understand "regulated" today.

|1.14.08 @ 1:44PM|#

I'm not aware of any western towns that prohibited any resident from owning any firearm, although given the laws that some towns have passed... anything is possible.

Contrary to popular opinion, the Courts are practical, and more often than not, they'll try to split the baby. I think Heller's going to give a nod to the individual versus collective right and essentially say, "You can regulate the shit out of handguns but you have to stop short of prohibiting them or regulating them in a way that is effectively prohibiting them."

|1.14.08 @ 1:47PM|#

Matt-

Thank you for your clarification. It is a distinction I should have made but did not.

Other Matt|1.14.08 @ 1:47PM|#

"You can regulate the shit out of handguns but you have to stop short of prohibiting them or regulating them in a way that is effectively prohibiting them."

I don't disagree, unfortunately, though I wish I could. I would hope they would add something to the effect of "..or actually using them". It would especially be nice to give some fodder to oveturning some of the semi automatic firearm bans.

Other Matt|1.14.08 @ 1:48PM|#

Thank you for your clarification. It is a distinction I should have made but did not.

No problem, I figured you knew that, but on the off chance that someone had not actually read what the decision said, and just relied on the NYT, I wanted to make sure it was clear.

Corey Cagle|1.14.08 @ 2:00PM|#

do the courts ever look to independent writings of the founders regarding their intentions when interpreting the founding documents?

Depends on the judge. Justice Thomas is the most likely to consider the originalist perspective. The Federalist Papers, as well as other writings by Hamilton, are commonly cited by SCOTUS. In this case, as with all Bill of Rights cases, I would hope that some cognizance would be taken of the Anti-Federalist position, as they are the fathers of the Bill of Rights.

In that regard, this is the 17th amendment proposed by the Virginia Convention, which starts from the basis that there is a right to bear arms, and lays out a fairly Swiss model of national defense:
"That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

In "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents," we find another precursor to the 2nd Amendment:

"That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals..."[emphasis added]

Obviously (and sadly), the Anti-Federalists did not get their way in 1787, but it is clear from their writings--which are the reason we have a Bill of Rights in the first place--that they viewed the right to keep and bear arms as a personal, individual right. Again, Justice Thomas will almost certainly support this idea, and probably Justice Scalia as well, but I don't know enough about the jurisprudence of the other members to make a reasonable prediction.

kinnath|1.14.08 @ 2:04PM|#

that standing armies, in time of peace, are dangerous to liberty,

Huzzah

Bingo|1.14.08 @ 2:07PM|#

Wouldn't a militarized police force be a standing army?

kinnath|1.14.08 @ 2:09PM|#

Wouldn't a militarized police force be a standing army?

US forces are forbidden from policing the US population. But when the military sends its surplus weapons of war to local police forces . . . .

R C Dean|1.14.08 @ 2:09PM|#

For your edification, laws banning the carrying of firearms in western towns were never, ever struck down in court on 2nd Amendment grounds.

I wonder how many of these firearms bans in the Old West were during the pre-statehood era for various territories and protectorates?

For that matter, I wonder how many of towns actually banned carrying firearms.

Grammatically, I always interpreted the "well-regulated" militia clause to be an explanation of the right to bear arms, not a restriction of it.

Kinda means "well behaved", too, not "regulated" as we understand "regulated" today.

Actually, at the time, "well-regulated" also could mean something like well-provisioned or supplied.

lunchstealer|1.14.08 @ 2:12PM|#

Back during the Kelo flap, I remember seeing a Reason article or H&R post that mentioned the idea that no phrase in the constitution is superfluous. I haven't been able to find the Reason article that mentioned it, but what bearing does that idea have on this discussion?

Amendment V: "...nor shall private property be taken for public use, without just compensation."

At the time, some people were arguing that the 5th Amendment authorized takings for public use, but didn't prohibit takings for private use. The counter was that the 'for public use' was there for a reason, and that reason was to be a limit on government takings of property - that this could not be done except for public use.

How does that bear on the "well-regulated Militia" clause?

|1.14.08 @ 2:14PM|#

Jennifer,

One point about In other words, "since we're going to need an Army to keep the state secure, we don't want to limit the right of the people to bear arms either, because letting government agents be the only ones allowed to have weapons is a recipe for tyranny."

They didn't have an Army. The militia was to take the place of the Army.

That's my point to you, too, kinnath. They most certainly were concerned about keeping the state free, and about a national army being used to impinge on this freedom. As it applied to the Second Amendment, the word "free" means "without a standing army."

|1.14.08 @ 2:15PM|#

Actually, at the time, "well-regulated" also could mean something like well-provisioned or supplied.

Indeed. Your militia isn't going to fare to well if, for instance, everyone shows up with a rifle chambered to fire rounds that are incompatible with one another.

Certainly one can look at the CMP as an outgrowth of those ideas. You get basic training, and for a nominal fee, a serviceable rifle.

Nowadays, the feds just give military rifles to cops. Citizens, evidently, aren't to be trusted.

|1.14.08 @ 2:16PM|#

Gilbert Martin,

The idea that the 2nd Amendment refers to a "collective" right of states rather than an individual right is indeed a 20th century invention. True enough, but my point was that the idea that governments can regulate gun ownership is NOT a 20th century invention. Which adds up to the conclusion that they used other reasoning, reasoning which recognize the individual right while still allowing for regulation.

|1.14.08 @ 2:16PM|#

As it applied to the Second Amendment, the word "free" means "without a standing army."

I've never encountered this idea before. Do you have a source?

|1.14.08 @ 2:17PM|#

Your admission that the large size of our military does provide security refutes your assertion that you are wrong.

joe, the preface explains why we have the right to bear arms. It does not limit that right. The fact that we currently have a very large military that protects us from invasion doesn't mean that we can't and shouldn't have an extra level of protection from invasion due to individual gunowners prepared to form a supplemental militia if invaded. Further, the existence of a large number of individuals who are familiar with firearms strengthens the military, by expanding the pool of people inclined to join and increasing the speed at which they would be able to go on active duty in an emergency.

And, even if you maintain the odd view that the Second Amendment right to bear arms waxes and wanes with the size of our military, the Ninth Amendment means that we have individual gun rights beyond those you (wrongly) feel are explicitly limited by the Second.

|1.14.08 @ 2:17PM|#

mediageek,

I don't know state-by-state constitutions, but there were certainly gun laws in place while they were federal territories.

|1.14.08 @ 2:18PM|#

Joe-

The idea that the federal government can regulate private gun ownership was a wholly 20th Century invention, so far as I can see.

Most of the federal laws that stipulate what kind of gun you can own to who you can buy it from were codified into law in the 20th Century.

|1.14.08 @ 2:18PM|#

"Politicians Prefer Unarmed Peasants"

|1.14.08 @ 2:20PM|#

Joe-

I was asking about your definition of "free" wrt the 2nd Amendment and standing armies.

Just looking for some more material to go over, 'cuz I'm a nerd like that.

kinnath|1.14.08 @ 2:22PM|#

That's my point to you, too, kinnath. They most certainly were concerned about keeping the state free, and about a national army being used to impinge on this freedom. As it applied to the Second Amendment, the word "free" means "without a standing army."

Gotcha

Corey Cagle|1.14.08 @ 2:23PM|#

joe,

my point was that the idea that governments can regulate gun ownership is NOT a 20th century invention. Which adds up to the conclusion that they used other reasoning, reasoning which recognize the individual right while still allowing for regulation.

I'd have to do considerable research to back this up, but my guess would be that these were state or municipal laws (of the "don't bring your guns to town" variety), and that, since the Bill of Rights was not incorporated to include limiting the actions of States until the 14th Amendment, they would not have violated the (federal) 2nd Amendment.

Guy Montag|1.14.08 @ 2:30PM|#

Back in the day, you didn't bring your own Napoleon.

Yea, but if we could buy our own I could bring one!

|1.14.08 @ 2:31PM|#

mediageek,

I don't have book and page, but I'm thinking of all of the verbiage they spilled discussing the threat standing armies pose to freedom, and how much better militias would be.

While a standing army can provide the security for any old state, the thinking went, only a militia can provide security for a free state.

|1.14.08 @ 2:34PM|#

prolefeed,

That's better.

joe, the preface explains why we have the right to bear arms. It does not limit that right. Er, isn't that the raging discussion being hashed out? I don't think that you get to assume it as a proposition in a chain of argument proving itself.

The fact that we currently have a very large military that protects us from invasion doesn't mean that we can't and shouldn't have an extra level of protection from invasion due to individual gunowners prepared to form a supplemental militia if invaded. Further, the existence of a large number of individuals who are familiar with firearms strengthens the military, by expanding the pool of people inclined to join and increasing the speed at which they would be able to go on active duty in an emergency. Sure, but that was not the thinking behind the amendment at the time. It was written presupposing that there would be no army, and that the militia itself would serve as the army.

Paul|1.14.08 @ 2:36PM|#

In which case they would also have to argue that the 1st Amendment doesn't cover radio, television, or the internet.

It doesn't, nor does it cover political speech. Only entertainment speech is still largely covered by the 1st amendment.

|1.14.08 @ 2:37PM|#

mediageek,

The idea that the federal government can regulate private gun ownership was a wholly 20th Century invention, so far as I can see. That's true. 19th century gun laws, both pre- and post-14th amendment, were AFAIK state and local laws.

Paul|1.14.08 @ 2:38PM|#

Somebody has to point guns at the evidoers.

They are.

|1.14.08 @ 2:40PM|#

An interesting twist on the collective vs. individual interpretation of the amendment is that the justifcation that libertarians seem to like the most - the People need to be able to joing together to fight off the government - is a collective "right," as opposed to the self-defense/hunting justifications.

Paul|1.14.08 @ 2:43PM|#

but just want to say that "useful Arts" meant something a lot different in 1789 than it does today.

I thought that these were "useful arts".

the People need to be able to joing together to fight off the government - is a collective "right," as opposed to the self-defense/hunting justifications.

It's a collective right insofar as any right belonging to the people is, by its design purposeful in keeping back tyranny of government.

Paul|1.14.08 @ 2:49PM|#

slave insurrections; that's guns as a collective right, and thoroughly despicable reasons for that right all in a neat package. I really don't think that individual right readers for the second should hang their hat on history.

The fact that different groups have views the 2nd amendment which meet their own ends doesn't invalidate the individual right concept. Your analogy would be like waving off the 1st amendment because the Illinois Nazi's applied it to to spread a message of hate.

There's a long, and scarecly detailed history of people defending their homes against common criminals. It happens almost every day. The fact that these aren't noteworthy historical "events", doesn't make them any less important to the concept of individual gain from people having a right to bear arms.

Gilbert Martin|1.14.08 @ 2:51PM|#

"True enough, but my point was that the idea that governments can regulate gun ownership is NOT a 20th century invention. Which adds up to the conclusion that they used other reasoning, reasoning which recognize the individual right while still allowing for regulation."

The idea that the FEDERAL government can regulate gun ownership is a 20th century invention. As I said earlier, the Bill of Rights originally only constrained the federal government. It was subsequently (and selectively) interpreted that the 14th Amendment constrained state and local governments as well.

If the courts interpreted the confluence of the 2nd and 14th in the same way they do freedom of speech in the 1st with the 14th, then they would rule that there couldn't be any laws whatosever at any level of government restricting anything that even remotely resembled some sort of weapon.

kinnath|1.14.08 @ 2:54PM|#

The folks that want to regulate (euphamism for restrict) the right of individuals to own arms use the phase "collective right" to mean "provided by the state".

In that regard, no, libertarians do not see gun ownership as a collective right.

shecky|1.14.08 @ 2:54PM|#

"Hmm... after reading the links and all these responses, I may have to rethink my position on the Second Amendment"

Does this scenario ever happen?

|1.14.08 @ 2:55PM|#

Sure, but that was not the thinking behind the amendment at the time. It was written presupposing that there would be no army, and that the militia itself would serve as the army.

So, your point is that because one constitutional principle (no standing armies) has been ignored, that provides justification for terminating the Second Amendment?

|1.14.08 @ 2:59PM|#

Whenever a gunnut tells a court that the first part of the 2d Amendment means nothing, I think s/he is effectively telling the court that it is okay to regard the second half as a nullity if so inclined. Bat stratergy.

Libelous words like "gunnut" prove you don't have an argument. If you did, you wouldn't need to insult your opponent.

Regardless, the rules for standard English prove you wrong. The first half is a nullilty because it's a dependent clause. The second half is an independent clause. You could remove the dependent clause and not change the meaning of the sentence.

If the 2nd weren't an individual right, it would have said "the right of the states" or "the right of the militias". It actually says "the right of the people". You know, the very same "people" that have the right to peaceably assemble in Amendment 1 and to be secure in their persons in Amendment 4. Arguing "people" in the 2nd Amendment means something different than it did in Amendments 1 and 4 is Newspeak.

|1.14.08 @ 2:59PM|#

An interesting twist on the collective vs. individual interpretation of the amendment is that the justifcation that libertarians seem to like the most - the People need to be able to joing together to fight off the government - is a collective "right," as opposed to the self-defense/hunting justifications.

Umm, that's an individual right -- the right of individuals to choose or not to choose to join a militia to fight off the government. The action is collective, not the right.

Other Matt|1.14.08 @ 3:00PM|#

It's a collective right insofar as any right belonging to the people is, by its design purposeful in keeping back tyranny of government.

My personal opin is that it is pretty clear in the plain reading of contemporaneous writings that it was an individual right designed to have a militia that could be mustered, and to provide for an armed populace to restrain the power of govt. The whole "collective right" is a red herring, to me, though. There aren't any "collective" rights that aren't, by necessity, an individual right. How can you collect zeros and have anything greater than zero? The ability to defend one's self was so much a given that they'd probably look us today with our "call in the professionals" attitude to everything as a severe disappointment, at best.

So, your point is that because one constitutional principle (no standing armies) has been ignored, that provides justification for terminating the Second Amendment?

Wouldn't it be great if that got resurrected?

MG-Forgot to mention this earlier, but in regards to the Serbu, I tend to prefer the WWG Bushwacker in 457 mag, might want to check it out

Other Matt|1.14.08 @ 3:01PM|#

The action is collective, not the right.

Thank you, you said it much more consisely than I did.

|1.14.08 @ 3:04PM|#

This dislike this notion of a "collective right." Individuals possess rights. The State possesses the power. I have this sneaking suspicion that the government would quickly declare itself the arbiter of "collective rights."

|1.14.08 @ 3:06PM|#

prolefeed,

Once again, you fall victim to your backwards thinking and partisanship.

So, your point is that because one constitutional principle (no standing armies) has been ignored, that provides justification for terminating the Second Amendment?

I've written zilch zip nada nothing about terminating the second amendment. You simply assume I'm arguing that because I'm joe, the liberal.

Then, you conclude that my propositions and arguments must be wrong, because they supposedly add up to a political stance you don't like.

First, try to read what I actually write, and don't assign positions to me.

Second, figure out what is true and let the politics come from that, rather than letting your preferred politics determine what you believe to be true.

Other Matt|1.14.08 @ 3:08PM|#

I have this sneaking suspicion that the government would quickly declare itself the arbiter of "collective rights."

I hold a much deeper suspicion. I suspect the government will declare that "collective" rights are for the "collective" people as represented by their gov't, therefore "collective" rights are only afforded to the government.

I've written zilch zip nada nothing about terminating the second amendment. You simply assume I'm arguing that because I'm joe, the liberal.

Well..ahem...you ARE joe, the liberal, THE joe, no less.

|1.14.08 @ 3:09PM|#

shecky,

I've rethought my position on the Second Amendment based on arguments on these threads. I used to agree with the collective-right interpretation and don't anymore.

Dave W.|1.14.08 @ 3:11PM|#

Regardless, the rules for standard English prove you wrong. The first half is a nullilty because it's a dependent clause. The second half is an independent clause. You could remove the dependent clause and not change the meaning of the sentence.

lets talk about the rules for standard English for a second. If a speaker says:

"All other things being equal, I prefer red over blue."

How is that statement interpreted under the rules of standard English? Does it mean the speaker is affirmatively stating for a fact that all other things are equal?

Next example:

"Glad it is not raining; I will go to the game."

If, after the speaker utters these words, but before she goes to the game, the sky opens up and it starts pouring, would you expect her to still go to the game?

I like that scene in best in show where Lenny is saying all the different kinds of nut.

|1.14.08 @ 3:11PM|#

Bob Smith,

You could remove the dependent clause and not change the meaning of the sentence.

Grammatically you are correct, it could be read that way. However, it has long been held that there are no wasted words in the Bill of Rights, and that if a phrase was added, it has a purpose, and is relevant to the understanding of what is being discussed therein.

kinnath|1.14.08 @ 3:22PM|#

I've rethought my position on the Second Amendment based on arguments on these threads. I used to agree with the collective-right interpretation and don't anymore.

Cool

|1.14.08 @ 3:33PM|#

First, try to read what I actually write, and don't assign positions to me.

Ummm, you've lambasted me today for pointing out the fallacy in what you actually wrote, saying in effect "doggonit, that's not what I actually meant".

So which is it -- should we take your words at their face value, or try to guess at what you really meant?

Gray Ghost|1.14.08 @ 3:34PM|#

MG-Forgot to mention this earlier, but in regards to the Serbu, I tend to prefer the WWG Bushwacker in 457 mag, might want to check it out

At around 80 ft/lbs of free recoil energy, the bear would have to actually be chewing on me before I'd want to touch it off. I love it. It's as American as a pick-up truck with a blown 350 V8 and DOT legal slicks.

Returning to the Const. debate, why have only some of the Amendments been incorporated to the states?

Other Matt|1.14.08 @ 3:57PM|#

At around 80 ft/lbs of free recoil energy, the bear would have to actually be chewing on me before I'd want to touch it off. I love it. It's as American as a pick-up truck with a blown 350 V8 and DOT legal slicks.

Returning to the Const. debate...

I know, it's a great diversion though. I like the small print:
"Or just for the person who has everything..."

economist|1.14.08 @ 3:58PM|#

I'm keeping all my guns safe so that when the government abolishes private property, I won't go down without a fight. And they look really badass, too.

|1.14.08 @ 4:01PM|#

'Geotpf'

Someone new from under the bridge?

Where is Dan T??

|1.14.08 @ 4:06PM|#

prolefeed,

I'm just skipping you. FYI.

Da Brady Bunch|1.14.08 @ 4:07PM|#

And they look really badass, too.

They LOOK badass? BAN THEM NOW!!! SHAME ON YOU!!

Now if they actually were badass that would be an entirely different thing.

R C Dean|1.14.08 @ 4:11PM|#

Returning to the Const. debate, why have only some of the Amendments been incorporated to the states?

I'm no expert on incorporation doctrine, but I believe that every one of the Bill of Rights where this question has been raised has been incorporated. IOW, I don't know that the Court has ever said that a provision of the BOR is not incorporated.

With regards to the 2A, the question has simply not been put to the Court yet. Strictly speaking, the current case doesn't put the question either, as it deals with DC, not a state.

|1.14.08 @ 4:20PM|#

Umm, that's an individual right -- the right of individuals to choose or not to choose to join a militia to fight off the government. The action is collective, not the right.

If it is an individual right, actions that require collective action make for a lousy argument to support that view. If the Town of Concord had required all the members of the militia to keep their weapons at the meeting house, to be handed out when called to arms, 1776 would have played out exactly the same way. Ergo, the right of the people to form militias to fight off the government doesn't tell us anything about the individual vs. collective question.

Unlike, for example, the Virginia Constitution's language about self-defense and hunting.

|1.14.08 @ 4:27PM|#

People who use phrases like "clear meaning" and "can read" to describe one side of a debate that's been raging for centuries are wanking.

Draftswoman draws a circle -- a perfectly symmetrical circle, flawless in its circleness -- and then dies.

Man Who Would Immensely Benefit If It Is Declared a Square: "That's a nice square!"

Woman Who Would Immensely Benefit If It Is Declared a Triangle: "That's a nice triangle!"

Man Who Likes to Argue: "From one angle, that's a square, from another angle it's a triangle -- I'd say it's whatever will result in a bigger government."

Bystander: "Umm, it's clearly a circle. Anyone who can see can tell it's a circle."


Man Who Likes to Argue: "People who use phrases like "clearly" and "can see" to describe one side of a debate that's been raging for paragraphs are wanking."

|1.14.08 @ 4:31PM|#

""""Actually Joe, in this day and age of asymetrical warfare and terrorism as the primary means of our enemies, a militia in the form of a well armed citizenery is more important to security now than it ever was. Our police and military cannot be everywhere at once or protect every piece of critical infrastructure and against every form of attack, a well armed citzenery can.""""

One might think, but I say the government disagrees. They are actively trying to get citizens out of game. I think FEMA requires you to be registered with them to help in disasters. Citizens are victims, registered first responders are heroes. That was a problem in OK after the storm damage last year. People arrived to help and they were turned away.


"""Specifically, even if the militias themselves no longer exist, guns can be regulated and I think the Second Amendment gives the power to regulate.""""

Does a constitutional amendment give the citizens a right to exercise, or the government a right to regulate? If they can regulate, it's not much of a right. And if it's ok regulate rights, then there is no problem with the McCain-Feingold law since it is regulating the first amendment. Right?


"""I can see no other interpretation than a right of individuals to own carry firearms. "People" is merely the plural form of "person", and does not imply a group right to be held in trust by a state."""

The term people is defined in the first the words of the Preamble. We the people.

""""No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."""""

How many nannies does it take to make a tyranny?

|1.14.08 @ 4:31PM|#

If the Town of Concord had required all the members of the militia to keep their weapons at the meeting house, to be handed out when called to arms, 1776 would have played out exactly the same way.

Ummm, if the Town of Concord had tried to confiscate individual weaponry like that, they likely would have been told to f*** off and quit acting like the effing British -- and then the colonists would have returned home carrying their weapons.

kinnath|1.14.08 @ 4:31PM|#

If the Town of Concord had required all the members of the militia to keep their weapons at the meeting house, to be handed out when called to arms, 1776 would have played out exactly the same way

If the government required all members of the militia to keep their weapons where they could be controlled by the governmnet only to be distributed when the government calls the militia to arms . . . . There would be no right attributed to the people to bear arms.

robc|1.14.08 @ 4:36PM|#

The British governor of Virginia basically tried with gunpowder what joe suggested for individual weaponry in Concord. It ended pretty much like prolefeed suggested.

robc|1.14.08 @ 4:40PM|#

TrickyVic,

How many nannies does it take to make a tyranny?

Nice. If I used email sigs, I would put that in there.

|1.14.08 @ 4:41PM|#

One of the things that touched off the Revolutionary War was the intended confiscation of the militia's centrally held arms at Concord.

The colonists got early wind of what was going down, and grabbed what they could before the Redcoats got there.

|1.14.08 @ 4:57PM|#

My point seems to have eluded people. If the purpose of having "the People" bear arms was to make it possible for the locals to fight off a tyrannicaly government, then that end could be effected just as well through the possession of guns by the local government than individual gun possession.

Ergo, pointing to this interest doesn't make the point that the right to keep and bear arms is an individual right.

|1.14.08 @ 5:01PM|#

And in his 4:27 post, we see exactly what is wrong with prolefeed's brain.

If we suppose that the circle was clearly and perfectly drawn, and if we assume that everybode (except prolefeed, of course) is acting dishonestly, then of course everyone who came to a conclusion different from prolefeed's is ignoring the obvious evidence.

Of course, we know neither of those things, but they always form the first and second proposition of his reasoning.

robc|1.14.08 @ 5:03PM|#

joe,

If the purpose of having "the People" bear arms was to make it possible for the locals to fight off a tyrannicaly government, then that end could be effected just as well through the possession of guns by the local government than individual gun possession.

What if the tyrannical government being fought is the local government?

|1.14.08 @ 5:04PM|#

Joe, I was simply posting a historical fact.

kinnath|1.14.08 @ 5:05PM|#

If the purpose of having "the People" bear arms was to make it possible for the locals to fight off a tyrannicaly government, then that end could be effected just as well through the possession of guns by the local government than individual gun possession.

Your argument is that "we the people" have the means to overthrow the US government because SWAT teams control the weapons of war on a local basis.

|1.14.08 @ 5:12PM|#

robc,

What if the tyrannical government being fought is the local government? Then there would still have to be some group acting collectively to fight that local government off.

The concept of self-defense foresees a situation in which an individual with a gun can effect meaningful resistance all by himself. No individual is going to be able to effect meaningful resistance against a government of any size all by himself.

kinnath,

That's not really my argument. My argument posits the existence of a militia, not a specialized unit of professionals who work for a government.

kinnath|1.14.08 @ 5:20PM|#

That's not really my argument. My argument posits the existence of a militia, not a specialized unit of professionals who work for a government.

I'm struggling with what a militia controlled by a local government would be in today's environment. The National Guard? Or what?

|1.14.08 @ 5:26PM|#

I don't think there is such a thing in today's world. A volunteer fire department maybe?

robc|1.14.08 @ 5:26PM|#

joe,

Then there would still have to be some group acting collectively to fight that local government off.

It must be getting late. You are losing it. What does this have to do with local government storing weaponry for use?

It doesnt matter who is fighting the local government. The sub-discussion is about the local government storing the weapons (for individuals or some collection, it doesnt matter). I dont want the city of Louisville storing the weaponry Im going to use to overthrow their (not-all-that hypothetical, stupid smoking nazis) tyranny. Seems counter productive.

|1.14.08 @ 5:26PM|#

You aren't reading my observations are prescriptive, are you?

I'm just working through the ideas and language. I'm not actually arguing in favor of such a setup.

robc|1.14.08 @ 5:28PM|#

joe,

You are going to have to parse the 5:26 post. WTF? Was that in response to me or someone else and what does that first sentence mean?

|1.14.08 @ 5:29PM|#

Well, I guess robc IS reading my comment as prescriptive.

My comment is exactly what it is, robc - an observation about the ability of the People to fight off a tyrannic government being irrelevant to the question of whether gun ownership is an individual right.

BTW, "that can't be true because I wouldn't like the political implications if it were" is a lousy way to go about understanding the world.

|1.14.08 @ 5:30PM|#

Prescriptive vs. descriptive, robc. I was making an observation, describing things. You seem to be arguing against it as if I had made a suggestion about how things should be.

robc|1.14.08 @ 5:32PM|#

joe,

some sort of typo or writo in 5:26 post. Still dont know what that first sentence means. I cant figure out what your typo is.

robc|1.14.08 @ 5:38PM|#

joe,

Since a centralized weapon repository doesnt actually describe anything real....

Anyway, an observation about the ability of the People to fight off a tyrannic government being irrelevant to the question of whether gun ownership is an individual right.

Actually, your description shows why it must be an individual right. If it isnt, a tyranny at whatever collectivist level the right occurs needs to be controlled against. Therefore, the actual right needs to be at the individual level so they can collectivize on their own to fight whatever tyranny exists.

|1.14.08 @ 5:43PM|#

robc,

Since a centralized weapon repository doesnt actually describe anything real.... What's the rest of this sentence?

Also, the typo is "and." Should be "as."

You seem to be reading my comment as prescriptive, when it is simply descriptive.

robc|1.14.08 @ 5:59PM|#

joe,

No "and" in the sentence I am having trouble with, is it the "are" that should be "as"? That makes sense now. I really couldnt parse it with three "are"s in there. Too many vowels.

What's the rest of this sentence?
Since a centralized weapon repository doesnt actually describe anything real...

(not really sure :))
...it cant be descriptive? maybe?

|1.14.08 @ 6:02PM|#

If we suppose that the circle was clearly and perfectly drawn, and if we assume that everybode (except prolefeed, of course) is acting dishonestly, then of course everyone who came to a conclusion different from prolefeed's is ignoring the obvious evidence.

We don't need to assume dishonesty. We can assume sincere people who have a vested interest in perceiving things a certain way. If you lived in North Korea, and the government shot anyone who gave the slightest hint that they thought the government was maybe doing bad things, you might discover an amazing ability to ignore the evidence of starving people and vocally conclude the Dear Leader was acting in your best interest, and you might even manage to pull off some doublethink and sincerely believe that Dear Leader was your benefactor.

|1.14.08 @ 6:03PM|#

Or, Stockholm Syndrome.

|1.14.08 @ 6:15PM|#

All the nerds want to nitpick over semantics, when I'd rather go to the range...

|1.14.08 @ 6:31PM|#

Good thing nobody has an interest in your preferred interpretation.

|1.14.08 @ 6:48PM|#

Just checked with Lou Dobbs, he's checking the wind right now.

Elemenope|1.14.08 @ 7:22PM|#

I'm surprised (actually, *shocked*), that nobody has brought up the National Guard. It is a per-state organized paramilitary force, and comes about as close to a militia as you can come in the modern context.

In a situation where it might matter (federal overextension of power, civil war, invasion, insurrection, etc.), Nation Guard units answer first to the state, not to the fed...if shit went down, and the fed tried to nationalize guard units, it would probably be ignored.

I believe this is the very type of situation that the second amendment aimed at. The founders were not scared particularly of the power of individual states (they were not, it must be said, libertarians!), only of the federal power becoming preeminent. (Sure, Madison toyed with a 14th amendment type provision, nationalizing rights, but it was quickly shot down and never returned to during ratification).

Most states *required* that their citizens to be armed, and ready to assist in state duties to enforce the peace. Armament was the *normal* condition, and disarmament was a *special* circumstance usually occurring during foreign occupation or federal power gone awry.

It is, in my mind, pretty silly to think that the founding fathers, living under such conditions, believed it necessary to confirm a right on the *individual* level that was already so strongly assumed. Given the militia language, it seems more plausible that the founders wished to guarantee the ability of states (who organize militias, well or not!) to mobilize countervailing power to the fed's military powers.

In point of fact, interstate conflict even occurs today. A few years ago, Texas legislators fled to New Mexico following a Call of the House, and New Mexico forces stopped the Texas Rangers (who were charged with collecting the legislators) at the border, and threatened the use of force and arrest.

Similarly, there was the risk of conflict following the enforcement of Brown v. Board of Ed. and the 1964 Civil Rights Act in Southern states, where state forces and national forces could conceivably have ended in military conflict.

Paul|1.14.08 @ 7:43PM|#

I'm surprised (actually, *shocked*), that nobody has brought up the National Guard. It is a per-state organized paramilitary force, and comes about as close to a militia as you can come in the modern context.

No one's mentioned it because it's an old, tired subject that's been beaten to death (over the decades), and pretty much put to bed.

Elemenope|1.14.08 @ 7:51PM|#

Paul --

Beat to death or not, it seems awfully relevant in the context of the Amendment. It just seems like the elephant in the room that shadows over some of the "modern" interpretations of the 2nd.

Besides, I wasn't around for those decades, so it's new to me. :)

|1.14.08 @ 11:10PM|#

If one goes back to the Militia Act of 1792, it says:

"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, ... every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock."

Let's set aside the "free, white and male" issue until the next Ron Paul newsletter thread. Essentially, the militia was "everyone" with rights circa 1792. This changed with the Militia Act of 1903 and the National Defense Act of 1916. Today, the Army and Air National Guards are reserve forces rather than militia.

I really don't think this has much to do with the 2nd Amendment, but I do find it interesting.

LarryA|1.15.08 @ 1:06AM|#

Having a populace that bears arms is necessary to have a militia.

It's also necessary to rapidly expand active military forces. The NRA was formed shortly after the Civil War because way too many Northern recruits didn't know which end of a musket to point down range.

My point seems to have eluded people. If the purpose of having "the People" bear arms was to make it possible for the locals to fight off a tyrannical government, then that end could be effected just as well through the possession of guns by the local government than individual gun possession.

Not if you're trying to fight off a tyrannical local government. Several examples of such occurred during the civil rights era. See Deacons for Defense and Justice.

I'm struggling with what a militia controlled by a local government would be in today's environment.

A couple of summers ago it was dry and windy here in my rural Texas county. A fire got started in some dense brush between populated areas. Local law enforcement and fire departments responded, but were quickly overwhelmed. The Sheriff called for volunteers, and several dozen civilians responded to move livestock, direct traffic, run bulldozers, organize evacuations, etc. They held things together for a day and a half, until National Guard and Army helicopters arrived to dump water and help get the fire put out. Not a military situation, but the same thing could happen in one.

One of the Texas Penal Code sections I cover in Concealed Handgun License class deals with the justification of civilians using force and deadly force as a "public duty."

Section 9.21. PUBLIC DUTY. (a) Except as qualified by Subsections (b) and (c), conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.
(b) The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F).
(c) The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.
(d) The justification afforded by this section is available if the actor reasonably believes:
(1) the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or
(2) his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.

This section clearly presumes that civilians can be called upon to assist government in the maintenance of order. That's a militia.

|1.15.08 @ 2:48AM|#

Grammatically you are correct, it could be read that way. However, it has long been held that there are no wasted words in the Bill of Rights, and that if a phrase was added, it has a purpose, and is relevant to the understanding of what is being discussed therein.

The clause adds understanding, not meaning. It does not limit or condition the following clause. If you claim otherwise you sure aren't speaking English, you're speaking Newspeak.

|1.15.08 @ 3:39AM|#

For what it's worth, I'll go with the idea that the 2nd amendment is intended to maintain parity between the citizenry and the typical infantryman. So grenades, rpg's, etc.. are protected. I'll also go with the idea that it grants a right to regulate to the govt, to the effect of automobiles: You should be required to carry liability insurance, the govt. has the right to require registration, competency tests (but must also provide training adequate to meet the regulatory requirement at either no charge or at a trivial cost), and may hold you accountable for any harm caused by your weapons, i.e., if stolen and used in a murder, you are not guilty of murder, but are liable for wrongful death, and would have to carry appropriate liability insurance. For a rifle, even a semi-automatic assault rifle, this should be trivial, perhaps subsidized, as high rates would impose an unfair burden and effectively deny or restrict the basic ownership guaranteed in the 2nd amendment. If you want an RPG or a fully auto, or machine gun, the insurance burden would be greater, proportional to the potential for harm. At a million a life, a fully auto m16 would be a bit pricey to own in your home. However, you could perhaps keep it at a gun club, which, with a good vault and 24/7 security & owner access ( just in case the fictional UN forces don't call ahead before invading), would pay vastly lower liability than an easy to burglarize private home would.

I favor ownership. I'm a buddhist-taoist, and hold all life sacred, but I none the less accept the truth in the old western adage "god made man and colt made him equal."

I think too few contemporary progressives have sufficient experience with self defense of any kind to understand how important guns were in establishing democracy.

I've studied various Martial arts on and off since I was a kid. I'm 46 now. I have almost 17 years in AIkido (my favorite) alone, but I also have significant training in Wing Chun Kung Fu, Nisei Goju Karate-Do, and some Tai Chi Chuan. I also have Japanese sword and spear training. An untrained person twice my size (I'm 6' 1/2", and weigh 163 lbs. I have about 8% body fat, and ride a bike about 50 miles everyday since my teens, in NYC traffic.) has absolutely NO chance against me at all, unless he has a gun, which will stop me dead, instantly, with only a few months training. The armies of the Crowned heads of Europe were professionals, highly trained in sword, spear, bayonet, horsemanship, archery, etc... This was part of the lawful obligation of the nobility (my father's ancestors were the hereditary Lords of County Decies in Ireland), and the purpose for which they were deeded & entitled in the first place. Until the development of light, man portable, cheap firearms, a peasant revolt lasted until the knights showed up, and then they were defeated. Any reluctance to execute every last one was predicated entirely on the impact it would have on farm labor, and, thence the lord's income and wealth, since the peasants were part of his wealth and property.

I wouldn't stand a chance against 17th century nobility in a head to head. My training is good, but not as good as theirs was. I am a left-wing, green, progressive. BUt I have to agree with the right wing on this one. It's supposed to establish parity, and that's the only way you keep democracy. The only way.

Nuff said.

LarryA|1.15.08 @ 10:19AM|#

and may hold you accountable for any harm caused by your weapons, i.e., if stolen and used in a murder, you are not guilty of murder, but are liable for wrongful death, and would have to carry appropriate liability insurance.

Your comparison is to restrictions on autos.

If someone steals my car, uses it to rob a bank, runs over half a dozen citizens in his getaway, damages public and private property, and collides with and kills a couple of cops, I have zero liability in the matter. My insurance company will pay none of the damages to others, and still hand me a check to replace the vehicle, even if I left it in front of a stop-and-rob with the engine running.

The only time my auto liability insurance pays out is when I personally cause a wreck.

For a rifle, even a semi-automatic assault rifle, this should be trivial, perhaps subsidized, as high rates would impose an unfair burden and effectively deny or restrict the basic ownership guaranteed in the 2nd amendment.

1. Anything the government "subsidizes" they write rules for, and the subsidy always turns out to cost more than it's worth. No thanks.

2. If you can get an insurance underwriter to let her hair down (off the record) she will tell you why standard homeowner/personal liability policies don't charge an extra premium for covering gun owners for firearm-related accidents. Such incidents are so rare among the law-abiding firearm owners who buy insurance that it isn't economical to separately charge for them.

|1.15.08 @ 10:59AM|#

There's no such thing as a "semi-automatic assault rifle."

Also, if it were true that there's a higher likelihood of injury with fully-automatic weaponry, please cite a source showing a higher injury rate among NFA Title II firearms collectors and/or machinegun dealers and manufacturers.

|1.15.08 @ 12:02PM|#

"but I also have significant training in Wing Chun Kung Fu, Nisei Goju Karate-Do, and some Tai Chi Chuan"

I'll have mine over white rice please:)

No, but really, with that training you ought to pay a lot to insure yourself.

|1.15.08 @ 4:58PM|#

""I don't think there is such a thing in today's world. A volunteer fire department maybe?"""

You're talking militas, right? Must I point out that our victory in the Anbar region of Iraq is mostly due to Sunni militas?

|1.15.08 @ 5:05PM|#

I don't think why the second amendment is as important as the who the right covers. In black and white, it clearly says the people.

If the right was intended to be applied to militia, the amendment would have said the militia, instead of the people.