Supreme Court Rules on 2nd Amendment

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Whatever happend to the 2nd Amendments "well regulated militia" as being the necessity for arms ownership?

Retired Monk - "Ideology is a disease"

polycarp2
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Jul. 31, 2007 4:01 pm
Quote polycarp2:

Whatever happend to the 2nd Amendments "well regulated militia" as being the necessity for arms ownership?f

I don't quite follow. A well regulated militia was NEVER the necessity for arms ownership.

Rather, a well regulated militia is, and will continue to be, necessary to the security of a free state, which is one of the reasons why the right of the people to keep and bear arms must not be infringed.

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rbs
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Jul. 31, 2007 4:01 pm
A well regulated militia was NEVER the necessity for arms ownership.
No, it wasn't. In fact, what the amendment says is that arms ownership is vital for the purposes of maintaining a well-regulated militia. It does NOT say that the use of those arms outside the operations of a well-regulated militia is to be protected.

Sort of like a company car. It's OK to have one, but it is only intended to be used for company business.

That's what the 2nd Amendment says.

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Art
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Jul. 31, 2007 4:01 pm
Quote Art:
A well regulated militia was NEVER the necessity for arms ownership.
No, it wasn't. In fact, what the amendment says is that arms ownership is vital for the purposes of maintaining a well-regulated militia. It does NOT say that the use of those arms outside the operations of a well-regulated militia is to be protected.

Sort of like a company car. It's OK to have one, but it is only intended to be used for company business.

That's what the 2nd Amendment says.

I don't agree with your analysis, mainly because it completely ignores the second clause of the amendment, "...the right of the people to keep and bear Arms, shall not be infringed." Any analysis that doesn't address this prohibition must be considered incomplete.

However, I do agree with you that the amendment clearly states that arms ownership is vital for the purposes of maintaining a well-regulated militia. It is abundantly clear that the founders wanted an armed citzenry. In fact, that is precisely what the militia IS - the armed yoemanry.

But I don't think they would then turn around and allow the government to prevent that same militia from using their arms for other purposes, such as hunting or recreational shooting. I believe they made this clear by stating, "...the right of the people to keep and bear Arms, shall not be infringed."

So, because an armed citizenry is essential to the security of a free state, the government may not infringe on the right of the citizenry to keep and bear arms. Pretty sensible, if you ask me. To allow otherwise would be to place the government in the role of master rather than servant.

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rbs
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Jul. 31, 2007 4:01 pm

The Constitution is a very compact, straightforward, document. Aside from the Preamble, which lays out the purpose of the thing, it consists of simple "shall" and "shall not" statements. Every clause has a practical effect. Nowhere else does it say, "because thus and so..." before it says, "therefore, the Government shall..."

So I find it curious, particularly from an original intent point of view, to suppose that the militia clause of the Second means nothing more than "This is why we did this..." and thus has no practical legal effect. It would seem much more consistent to suppose that the intention of the founders was for the right to keep and bear arms to be contingent within the context of a well-regulated militia.

Since we no longer have well-regulated militias -- and no, yahoos running around the woods in Michigan don't count -- in favor of a standing army, I don't see the Second as guaranteeing the right to bear arms for purposes of self-defense.

Whether we should have that right on general liberal/libertarian and practical grounds is a legitimate debate and one that should be decided in a contemporary context by our elected legislatures at all levels.

I find this to be just another example of right-wing judicial activism. The best one can claim is the right decision for the wrong reasons, but judicial over-reach nonetheless.

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BadLiberal
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But I don't think they would then turn around and allow the government to prevent that same militia from using their arms for other purposes, such as hunting or recreational shooting. I believe they made this clear by stating, "...the right of the people to keep and bear Arms, shall not be infringed."
No. You are reading things into the language that simply aren't there. "...the right of the people to keep and bear Arms, shall not be infringed." is not the same as "...the right of the people to keep and bear Arms, and to use for any desired purpose shall not be infringed." Your right to keep them and to bear them is guaranteed. How you use them is another matter.
I don't think they would then turn around and allow the government to prevent that same militia from using their arms for other purposes, such as hunting or recreational shooting
Well, they clearly turned around and allowed the government to prevent that same militia from using their arms to commit armed robbery or murder. Where in the second amendment do you think that it says which activities are protected and which aren't?

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Art
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Jul. 31, 2007 4:01 pm

The intent, the reason for the 2nd Amendment was what?

2nd Amendment: "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."

Retired Monk - "Ideology is a disease"

polycarp2
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Jul. 31, 2007 4:01 pm
Quote polycarp2:

The intent, the reason for the 2nd Amendment was what?

2nd Amendment: "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."

Retired Monk - "Ideology is a disease"

The way I see it, the intent was to make sure that we, the militia, the armed citizenry, are always capable of defending ourselves from all enemies, foreign and domestic. The intent was that we, the militia, always vastly outnumber the standing, professional army, to provide a check against tyranny. Therefore, we, the militia, must never be allowed to be disarmed.

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rbs
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Jul. 31, 2007 4:01 pm
The way I see it, the intent was to make sure that we, the militia, the armed citizenry, are always capable of defending ourselves from all enemies, foreign and domestic. The intent was that we, the militia, always vastly outnumber the standing, professional army, to provide a check against tyranny. Therefore, we, the militia, must never be allowed to be disarmed.
That's exactly the way I see it! the language doesn't explicitly say this, but the implication is as strong as can be.

Clearly, hunting and recreational target shooting are not directly related to this endeavor, and that is why these extraneous activities are not protected by the 2nd amendment.

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Art
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Quote rbs:
Quote polycarp2:

The intent, the reason for the 2nd Amendment was what?

2nd Amendment: "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."

Retired Monk - "Ideology is a disease"

The way I see it, the intent was to make sure that we, the militia, the armed citizenry, are always capable of defending ourselves from all enemies, foreign and domestic. The intent was that we, the militia, always vastly outnumber the standing, professional army, to provide a check against tyranny. Therefore, we, the militia, must never be allowed to be disarmed.

Correct you are.

slabmaster
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Apr. 1, 2010 11:12 am

Actually, it was based on English law...a requirement to bear arms in support of the Crown....not against the Crown.

Retired Monk - "Ideology is a disease"

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polycarp2
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Jul. 31, 2007 4:01 pm
Quote polycarp2:

Actually, it was based on English law...a requirement to bear arms in support of the Crown....not against the Crown.

Retired Monk - "Ideology is a disease"

.

Simular language that was plagiarized to adopt to a new countries constitution. We don't have a crown and made quite an effort to get away from Euro rule.

slabmaster
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Apr. 1, 2010 11:12 am
Quote Art:
The way I see it, the intent was to make sure that we, the militia, the armed citizenry, are always capable of defending ourselves from all enemies, foreign and domestic. The intent was that we, the militia, always vastly outnumber the standing, professional army, to provide a check against tyranny. Therefore, we, the militia, must never be allowed to be disarmed.
That's exactly the way I see it! the language doesn't explicitly say this, but the implication is as strong as can be.

Clearly, hunting and recreational target shooting are not directly related to this endeavor, and that is why these extraneous activities are not protected by the 2nd amendment.

Hunting and target shooting are not related to military skill-at-arms? Are you kidding me?

Have you ever heard of Carlos Hathcock?

It says "shall not be infringed." I don't know why you have such trouble understanding that.

But even putting aside the 2nd amendment, we still have two facts to consider. First, the constitution grants Congress no power to restrict the arms of the citizenry. And second, the ninth amendment covers our right to keep and bear arms for self-defense, hunting, and recreation.

Let me be clear that I still think that 2nd amendment plainly protects these rights, but the founders wanted to make sure that the fact that a right was not enumerated in the bill of rights was no indication that that right was not protected. (Or maybe if an amendment's grammatical structure was used to try to dismiss the right.) So I could just as effectively say that the rights of the citizens to keep and bear arms for self-defense is covered by the 9th.

So, unless you can find some language in the main body of the constitution that clearly indicates that the federal government has some power to control whether or not we citizens can bear arms, you've got quite an uphill battle to overcome: 1) No authorization, 2) 2nd amendment, 3) 9th amendment.

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rbs
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Jul. 31, 2007 4:01 pm

Guns are only good when they're in the hands of good people. The problem is trying to determine who is good and who is bad. Since we can't predict when a good person is going to turn bad or when a good person's gun falls into the hands of the bad then we have to resort to technology by implementing identity-detection mechanisms on the gun which will allow the gun to only function when the gun's true owner is operating it and will send a signal to the government each time the gun is fired along with GPS coordinates, date & time signature stamp. We can then track down every criminal who commits a crime by gun.

People just need to wake up and realize that science and technology is always going to be the answer. Always has been.

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Mr_Dean
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Apr. 1, 2010 8:58 am

From my little Thomas Jefferson statements booklet ('Thomas Jefferson, The Man, In His Own Words') as a letter to Henry Lee dated August 10, 1824:

Men by their constitution are naturally divided into two parties: 1.) Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2.) Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depository of the public interests. In every country these two parties exist; and in every one where they are free to think, speak, and write, they will declare themselves.

With respect to the 2nd Amendment, the problem isn't just who on a case by case basis is to be trusted but, as a corrolary to that determination, who on a state or authoritarian level is to be trusted. Many of the Founding Fathers distrusted a standing army. Which is why--for some reason, never proposed by the 'constitutional fundamentalists' claiming to want to get back to the constitution as 'our founding fathers intended it'--Article 1, Section 8, Clause 12 calls for Congress 'To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years'. The founding fathers feared that a standing army was more there to 'promote empire' than to 'provide for the common defense'--so, they didn't call for a standing army in the Constitution. The very next clause does call for a standing navy--but that was to protect maritime commerce from piracy. The idea of the population owning their own guns was, in part, as a protection against any and all oppressive regimes--domestic or foreign.

But, the problem in seeing this is in seeing who to trust. Is it the common man--or the overriding authority? The best correlation I can get out of that is 'innocent until proven guilty' vs. 'Original Sin'. In other words, is the common man 'commonly bad'--needing the overriding authority to contain the common man ('Original Sin')? Or, is the common man 'commonly good'--having any overriding authority impose oppressively upon that good any time it gets a chance('innocent until proven guilty')? As Thomas Jefferson points out, each person has their own predispositions in this matter as any open discussion will show--but, the point is the basis of the premise to begin with (and the founding fathers knew this I am sure--probably better than we do now): Are we to supply the common man guns to defend against all oppression--or are we to take those guns away ('for their own good' even) to prevent them from unruly conduct and hurting each other? The start of that answer is 'who do you trust' and 'who do you distrust'?

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Kerry
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Jul. 31, 2007 4:01 pm
Hunting and target shooting are not related to military skill-at-arms? Are you kidding me?

Have you ever heard of Carlos Hathcock?

I am not kidding you. I learned how to shoot in my training with the military. That would be an example of target shooting within the scope of operations of a well-regulated militia. Recreational target shooting and recreational hunting do not qualify as being within the scope of operations of a well-regulated militia. This is patently obvious. I don't care about Carlos Hathcock's leisure time activities. They do not fall within the scope of operations of a well-regulated militia.

The 9th Amendment;"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I hate to break it to you, but the 9th amendment is not relevant to recreational target shooting or recreational hunting any more than it is to armed robbery or serial murder. I don't know why this is so hard for you to understand. Where is it in any Constitution, statute, or regulation that the people have retained the right to hunt or target-shoot recreationally? You just saying that you have these rights doesn't do it. These are privileges that are allowed in certain regions. They are not universally "retained by the people". Obviously, your right to hunt in many areas like New York City is not one of those "retained rights." Obviously, the unauthorized discharge of a weapon within city limits is not a "retained right" in many municipalities. Obviously, the use of a firearm in the commission of a crime is not a "retained right" anywhere.

First, the constitution grants Congress no power to restrict the arms of the citizenry.
This statement is not relevant to anything. I am not aware of any proposed legislation that would have Congress restricting the arms of the citizenry.
And second, the ninth amendment covers our right to keep and bear arms for self-defense, hunting, and recreation.
No it doesn't. The 2nd Amendment covers our right to keep and bear arms. You don't get to add language that doesn't exist just because you want it there.

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Art
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Jul. 31, 2007 4:01 pm
Quote Art:
Hunting and target shooting are not related to military skill-at-arms? Are you kidding me?

Have you ever heard of Carlos Hathcock?

I am not kidding you. I learned how to shoot in my training with the military. That would be an example of target shooting within the scope of operations of a well-regulated militia. Recreational target shooting and recreational hunting do not qualify as being within the scope of operations of a well-regulated militia. This is patently obvious. I don't care about Carlos Hathcock's leisure time activities. They do not fall within the scope of operations of a well-regulated militia.

The 9th Amendment;"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I hate to break it to you, but the 9th amendment is not relevant to recreational target shooting or recreational hunting any more than it is to armed robbery or serial murder. I don't know why this is so hard for you to understand. Where is it in any Constitution, statute, or regulation that the people have retained the right to hunt or target-shoot recreationally? You just saying that you have these rights doesn't do it. These are privileges that are allowed in certain regions. They are not universally "retained by the people". Obviously, your right to hunt in many areas like New York City is not one of those "retained rights." Obviously, the unauthorized discharge of a weapon within city limits is not a "retained right" in many municipalities. Obviously, the use of a firearm in the commission of a crime is not a "retained right" anywhere.

First, the constitution grants Congress no power to restrict the arms of the citizenry.
This statement is not relevant to anything. I am not aware of any proposed legislation that would have Congress restricting the arms of the citizenry.
And second, the ninth amendment covers our right to keep and bear arms for self-defense, hunting, and recreation.
No it doesn't. The 2nd Amendment covers our right to keep and bear arms. You don't get to add language that doesn't exist just because you want it there.

Art, that was a well-written post.

I think I finally understand what you are saying, and your objections to the right to keep and bear arms.

I don't think your objections are correct, but I now understand them.

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rbs
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Jul. 31, 2007 4:01 pm

Thanks RBS. If we're going to be citing law, whether the Constitution or some lesser law, we need to parse the language very carefully. They didn't talk the way we do 250 years ago, so it's not always easy. Plus, I've read that a lot of the language that made it in was not as specific as it could have been in order to meet a consensus among competing ideas. That doesn't mean that it is any less applicable.

My interpretation is the only one that, to me, conforms to what I believe the language specifically says. It's probably a little easier for me because I don't care about guns. I have one, and I did some plinking with it, but I quickly got bored. Also, while I occasionally kill animals (related to my owning a hobby farm), I don't like it.

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Art
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Jul. 31, 2007 4:01 pm

The Second Amendment was poorly written. If the framers meant to guarantee the right to keep and bear arms, period; then they should have just said that. If they meant to qualify that right in some way then they should have done so clearly.

Instead they preceded the "shall not be infringed" part with a prefatory phrase similar to those "Whereas..." clauses at the beginning of legislative resolutions. And even that doesn't really clear things up at all. What effect does that phrase have? How is that supposed to guide the courts and legislators if at all?

My personal interpretation of this, based on what I've heard and read about that time, is that the founders were wary, not of government per se, but of a government wielding a standing army. Standing armies require quite a bit of care and feeding and they're all too convenient a mechanism for satisfying the personal ambitions of those in power. But they also recognized that the world is a dangerous place and a country without the means to defend itself wouldn't long remain a country.

To that end they proposed that the ongoing task of national defense should be handled by a "well-regulated militia." Citizen soldiers similar to the National Guard or Army Reserve. Keep it local, keep it close, keep it ready, but not professionally ambitious. But the key words here are"well-regulated." That means on weekends you practice, you drill, you train, you march around and stuff. It also means there is some kind of organization and a chain of command; local leaders, regional commanders, etc. You just don't get paid; instead it's your obligation as a citizen of the state. This is the part that gun-rights advocates want to ignore. Just having a stash of guns in the basement doesn't make you part of a militia. And the yahoos running around in the woods in Michigan doesn't count either, especially when they're talking about defending themselves against the government instead of defending the government against foreign attack.

It looks to me like the idea of having a militia in preference to a standing army was a good idea that didn't work out. And in a world with nuclear weapons, supersonic fighter jets, remote-controlled Predators, and all the other fun toys of war, I don't see us realistically going back to that anytime soon. Not if we want to continue to exist as a country twenty years later.

So basically we're left with the language of the Second but the original rationale has evaporated. Because of that fact we can't really have an honest debate over gun rights based on the merits of the case. Personally, I don't feel particularly strongly either way. I've handled guns, I'm not afraid of them, and I've hunted a few times in my younger years. But I don't own one now and I don't feel a burning desire to get one. I understand that some feel that they need one for personal protection and for some that may be a legitimate need. But I think a lot of folks over-rate their ability to use one for self protection should the need arise. The attacker is always going to have the drop on you due to the element of surprise; you simply can't be that "on guard" all the time and remain sane. Trained current and former members of the military and police may be the exception to that.

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BadLiberal
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Jul. 31, 2007 4:01 pm

I don't think it's so much that the 2nd Amendment was so poorly written, but more that it so anachronistic. The intended scenario seems clear to me. The town leaders learn of an impending threat, whether it be from hostile indians, a foreign invasion or even Government forces. The Constitution really doesn't say. The church bell is rung and every able-bodied citizen drops the reins of his mule-driven plow, races to the cabin and takes Ole Betsy down from the wall and gets to the town square, where, along with all his fellow citizen-soldiers, the militia is convened. The town is in no position to maintain an armory, so these citizen-soldiers must be allowed to keep their own guns. That's the part that the Constitution guarantees. Nobody really cares what you do with Old Betsy on your own time as long as you don't turn it on your neighbors. It is expected that you will use it to put food on the table. No guarantees required.

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Art
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