2nd Amendment - a quick survey

[NUance]

 

1791.

 

I can't understand why the Supreme Court claimed that, "(t)he right to bear arms is not granted by the Constitution" in Cruikshank. LINK). The right to bear arms seems clear on its face from reading the 2nd Amendment.

 

The wording of the second Amendment reads: A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed. I don't see how this can be construed to be anything other than the right to bear arms.

 

 

Playing devils advocate, the "people" is only used in two of the first eight amendments. It's not necessarily clear that it wasn't meant to refer to "people" collectively.

Beyond that, I'm not sure one should just read out the introductory clause "a well regulated militia..." because we know the Founders understood the use of active voice (see amendments V, VI, VII and VIII - e.g., "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.")

 

Therefore, it follows that if the Founders intended it to be an individual right, why didn't they draft it as "Congress shall make no law infringing upon a person's right to keep and bear Arms" or even just use the existing language but lop off the front?

 

 

People? That's a mighty thin argument. People means people. If it meant something else the founders would have used a different word.

 

 

What does the first part mean under your interpretation?

 

 

You mean, why would the founders mention that a well regulated Militia is necessary to the security of a free state? You understand the difference between the militia and the regular army, right? The militia is a military of the people of a particular state--sort of a citizens' military. Not regulars employed by the central federal government. The sentence mentioning that a well regulated Militia is necessary to the security of a free state is included as a justification for the right to keep and bear arms. Apparently the founders felt strongly enough about this particular right to include a justification for it.

[TGHusker]

Isn't that what we are talking about?

[cm husker]

OK...the founding fathers were in the process of fighting against the government they didn't like. Everything in the constitution is protecting the PEOPLE/public against the government. There is nothing in the constitution or the Bill of Rights that grants more power to the government over the people.

 

So....looking at the second amendment, it makes no sense to me that they were meaning only a "well regulated militia" (meaning the National Guard). The National Guard is the government. They are a branch of our government's military. How in the world is the second amendment granting rights of any kind if it is only pertaining to a branch of the US military?

 

That defies logic.

 

 

The bolded is of course factually untrue; the Constitution grants all sorts of powers to the government that may not be exercised by the people.

 

As to the "National Guard" being "the Government," that's not exactly true either, at least if you're referring to the national government, which arguably (logically, but not legally) is what the Constitution was meant to check. It would make sense that the Founders intended to codify an individual state's right to organize and maintain a militia, even if the federal government didn't want it to. That doesn't necessarily implicate the individual right, and it certainly doesn't explain why we should read the first clause out of that amendment.

[zoogs]

The answer is 2008 in DC v. Heller, but I would've guessed 1791.

 

As recently as the early 1990s, a credentialed conservative SCOTUS Chief Justice railed against the NRA's now successful efforts to redefine the law as "a fraud on the American Public".

 

The Constitution was written in a time in which the idea of a national standing army was controversial, as were a host of state-versus-federal tensions, hence this proviso for state militias. While it can probably be agreed that the text itself is a bit unclear (a recently-retired SCOTUS justice thinks so), the established judicial and legal understanding was not. It was through the NRA's efforts that "bearing arms" came to be understood as not taking up and bearing arms in a state militia, but as "owning guns" -- an idea that circulated first through the public, then up through legal circles, and finally prevailed in the highest court.

 

Heller is a landmark case because of its turnaround of *long*-standing precedent. It was a 5-4 ruling from which four justices remain, and it's why NRA-aligned groups are in a tizzy over the possibility of any Supreme Court nominee who might overturn it.

 

That having been said, America has always had a proud history of gun ownership, even if the idea of a Constitutional amendment guaranteeing individual possession is somewhat recent. Like any other issue of private ownership, though, it would be open to regulation varying by locale, reflecting the wants and needs of the people which are different from one state to another. That seems like a better way to go to me. Instead, it's precisely those local regulations that are now challenged under federal law (by virtue of the 14th amendment, as clarified in a 5-4 2010 ruling; the same reason that the federally recognized right to gay marriage is imposed on all states).

 

I agree that an amendment devoted to the ownership of a private product is silly. So silly that I no longer think we've got one like that.

 

Some further reading (many of it similar):

https://newrepublic.com/article/76368/second-amendment-gun-rights

http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856

http://www.bloombergview.com/articles/2015-10-07/how-the-gun-lobby-rewrote-the-second-amendment

http://www.huffingtonpost.com/burton-newman/the-nras-fraud-fabricatio_b_3103358.html

https://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/courtguns051095.htm

[ColoNoCoHusker]

 

1791.

 

I can't understand why the Supreme Court claimed that, "(t)he right to bear arms is not granted by the Constitution" in Cruikshank. LINK). The right to bear arms seems clear on its face from reading the 2nd Amendment.

 

The wording of the second Amendment reads: A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed. I don't see how this can be construed to be anything other than the right to bear arms.

The next argument is "Oh, well they only had slow loading muskets" even though it was the defacto arm of the time.

 

I'm sure the people who use that argument only believe the 1st Amendment only applies to vocal speech and newspapers printed on a Gutenberg press.

 

(And for the record, I'm for strengthening our current laws, and making sure we stop/punish actual criminals, not treat every citizen like one.)

 

 

One should not separate the first part of the Amendment from the second. I am not arguing one way or another on what the Second Amendment means. Just from the Constitutional Law research perspective...

 

Prior to the 2008 decision (& 2010 upholding), the issue was that while "the people" indicates an individual, "Militia" was collective. Since these were together in a single Amendment, the interpretation was an individual's right within the scope of the state regulated militia. I cannot find it ATM, but one of the SC Justices (Scalia possibly) did extensive research on word usage over the entire Constitution to determine interpretation around these words and context. The Justice researched the original discussions and iterations of the Second Amendment to determine consistent relationship on intent vs wording. It was pretty impressive how far they dug linguistically and historically to come to a conclusion around this.

[cm husker]

 

 

1791.

 

I can't understand why the Supreme Court claimed that, "(t)he right to bear arms is not granted by the Constitution" in Cruikshank. LINK). The right to bear arms seems clear on its face from reading the 2nd Amendment.

 

The wording of the second Amendment reads: A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed. I don't see how this can be construed to be anything other than the right to bear arms.

 

 

Playing devils advocate, the "people" is only used in two of the first eight amendments. It's not necessarily clear that it wasn't meant to refer to "people" collectively.

Beyond that, I'm not sure one should just read out the introductory clause "a well regulated militia..." because we know the Founders understood the use of active voice (see amendments V, VI, VII and VIII - e.g., "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.")

 

Therefore, it follows that if the Founders intended it to be an individual right, why didn't they draft it as "Congress shall make no law infringing upon a person's right to keep and bear Arms" or even just use the existing language but lop off the front?

 

 

People? That's a mighty thin argument. People means people. If it meant something else the founders would have used a different word.

 

 

What does the first part mean under your interpretation?

 

 

You mean, why would the founders mention that a well regulated Militia is necessary to the security of a free state? You understand the difference between the militia and the regular army, right? The militia is a military of the people of a particular state--sort of a citizens' military. Not regulars employed by the central federal government. The sentence mentioning that a well regulated Militia is necessary to the security of a free state is included as a justification for the right to keep and bear arms. Apparently the founders felt strongly enough about this particular right to include a justification for it.

 

 

Yes, I understand those concepts.

 

My only point is that as a rule, superfluous "justification" language is not usually included in a constitution. In other words, every clause means something and should effect the way a provision is interpreted. It's hard to justify just reading that lead in out of the amendment. The logical interpretation of its inclusion is that it was meant to limit the right by saying "the right to bear arms is provided so that a well regulated militia may be maintained (and only for that purpose... i.e., there's not strict prohibition on restriction re: individual rights).

[ColoNoCoHusker]

OK...the founding fathers were in the process of fighting against the government they didn't like. Everything in the constitution is protecting the PEOPLE/public against the government. There is nothing in the constitution or the Bill of Rights that grants more power to the government over the people.

 

So....looking at the second amendment, it makes no sense to me that they were meaning only a "well regulated militia" (meaning the National Guard). The National Guard is the government. They are a branch of our government's military. How in the world is the second amendment granting rights of any kind if it is only pertaining to a branch of the US military?

 

That defies logic.

 

Read the history around interpretation of the Bill of Rights and specifically the Second Amendment. Going back to pre-Civil War, it was a State vs Federal issue. The original discussions 1789-1791 were focused here as well. The Militia a right of the individual States, NOT the Federal government. Since the 1800s SCOTUS has upheld the Federal government can impose regulations on arms, controlling individual arms & State Militias are beyond the Federal scope. It's really been in the last 60 years or so there was substantial discussion over a broader singular individual interpretation here. It's an interesting discussion/split.

[zoogs]

Colo, you really nailed it

 

I didn't know any of this history until a few weeks ago or so. It was eye-opening; I don't remember any substantive discussion about the ongoing debate in school. But by that time a certain public interpretation had already become quite majority.

[ColoNoCoHusker]

Colo, you really nailed it

 

Better late than never... I had not refreshed to see your post. Great synopsis! I owe you some +1s when I get more...

[zoogs]

I'm really glad to see someone who already had that understanding of the topic! "Last 60 years" sounds about right, for the timeline.

[Saunders]

It was through the NRA's efforts that "bearing arms" came to be understood as not taking up and bearing arms in a state militia, but as "owning guns" -- an idea that circulated first through the public, then up through legal circles, and finally prevailed in the highest court.

Before the constitution was ratified, many of the colonies had pre-existing laws requiring that all free men own arms. Most of them even went into detail on what they were supposed to have in their possession, and colonials would be fined if they didn't have what was required.

[zoogs]

In colonial times, wasn't militia service often mandatory?

 

Nonetheless, those would be local laws -- over which the founders may have intended no federal government should intervene -- not a federally recognized right to private possession of a particular category of item.

 

There's a debate to be had over which view of the 2nd amendment is the proper one, but the history of its judicial interpretation is more certain, I think. As with other 5-4 SCOTUS decisions, Heller is currently the law of the land.

[ColoNoCoHusker]

 

It was through the NRA's efforts that "bearing arms" came to be understood as not taking up and bearing arms in a state militia, but as "owning guns" -- an idea that circulated first through the public, then up through legal circles, and finally prevailed in the highest court.

Before the constitution was ratified, many of the colonies had pre-existing laws requiring that all free men own arms. Most of them even went into detail on what they were supposed to have in their possession, and colonials would be fined if they didn't have what was required.

 

 

Which comes from the English Bill of Rights from the 1600s which allowed only Protestants to bear arms for defense "as permitted by law". The British Crown basically upheld these rights were only guaranteed to Englishmen in England and essentially did not apply within the American Colonies. The denial of these Rights was a big cause for the Revolutionary War and created a lot of concern afterwards over how easy it is for a government to abridge these rights.

[Saunders]

In colonial times, wasn't militia service often mandatory?

 

Nonetheless, those would be local laws -- over which the founders may have intended no federal government should intervene -- not a federally recognized right to private possession of a particular category of item.

 

There's a debate to be had over which view of the 2nd amendment is the proper one, but the history of its judicial interpretation is more certain, I think. As with other 5-4 SCOTUS decisions, Heller is currently the law of the land.

When you look at the Constitution as a document that doesn't say "this is what you're allowed to do", but instead says "The government can't take these away", then it makes more sense. The states were saying 'we want you to have this" and the 2nd says "the feds can't take it away." This goes down the whole states rights rabbit hole that people are arguing about with both Firearm and Marijuana laws lately.

[ColoNoCoHusker]

While thinking about this thread, I did a little googling and came upon this article. It's amazing that something can be written by what seems to be fairly intelligent people that ends up being so illogical.

 

I particularly like this quote:

 

“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,”

 

Are you friggen kidding me?

 

Think about the times the founding fathers lived in. Sure there were civilized cities but there were also wild territories that people DID protect themselves with guns. I don't remember anyone from the government coming out here in the wild west taking everyone's guns saying..."Hey....the government doesn't allow you to protect yourself. The second Amendment is only for the military".

 

So....now these smarty pants people are trying to claim I don't have the right to protect myself with a deadly weapon if someone invades my home at night and tries to do harm to my family?

 

In our early history (United States), Territories were unregulated and there was little "law of the land" until they became States. This was one way the Federal gov. motivated Territories to pursue statehood. In those Territories, people did carry firearms but they did NOT do this under the guise of the Bill of Rights. Early states guaranteed rights around arms; later States did not. The last few states actually had firearms "rights" decreased overnight due to regulations imposed by becoming a State...

 

As far as the second bolded, I cannot find any reference to BRB by name so...