Should we repeal the 2nd Amendment?

[Thermal]

That is not clear from the text of the amendment, which actually implies the opposite. It is clear from District of Columbia vs. Heller (2008) which interpreted the amendment in that way.

If the authors of the amendment intended the right to exist independently of the need for a militia, then why include the militia clause at all? I think it is obvious from a literal reading of the text, despite Heller which I think was fundamentally wrong, that the need for the militia is the reason for the right to exist.

I'd opine that the Bill of Rights was constructed right on the heels of the Revolution, and the uncertain future of the colonies' independence was right fresh on their minds. Jefferson and others thought the Constitution would be replaced within a few years, much as the Constitution itself replaced the Articles of Confederation. At the time of the Revolution, the colonies were still surrounded by foreign powers jockeying for a piece of the New World, not to mention the Natives who were occasionally not happy with the terms of these white guys telling the tribes how things were gonna be. The idea of personal/immediate community self defense was probably an unspoken given to the founders.

That said, I kinda feel like owning firearms is a natural extension from the Rights to Life and Liberty, although an oddly specific one to put in a separate amendment. But very tight regulation also flows from the general public's need to protect themselves from... you know, the other members of the public, as well as foreign invaders.

ETA: put more simply- the founders guaranteeing that the populace could at any time form an armed militia is something that would give pause to a Great Britain who might have designs on taking another bite at the colonial apple. That's why I think 2A applied to private ownership, immediately post-revolution.

 

[Random]

I'd opine that the Bill of Rights was constructed right on the heels of the Revolution, and the uncertain future of the colonies' independence was right fresh on their minds. Jefferson and others thought the Constitution would be replaced within a few years, much as the Constitution itself replaced the Articles of Confederation. At the time of the Revolution, the colonies were still surrounded by foreign powers jockeying for a piece of the New World, not to mention the Natives who were occasionally not happy with the terms of these white guys telling the tribes how things were gonna be. The idea of personal/immediate community self defense was probably an unspoken given to the founders.

That said, I kinda feel like owning firearms is a natural extension from the Rights to Life and Liberty, although an oddly specific one to put in a separate amendment. But very tight regulation also flows from the general public's need to protect themselves from... you know, the other members of the public, as well as foreign invaders.

Don't forget slave states wanting the weapons needed to put down slave revolts. While there were other reasons State governments might worry about the Federal government disarming the States, concern about slave revolts was in the mix.

 

[theprestige]

It may be clear to you but it is not clear to most people.

[qimg]https://www.internationalskeptics.com/forums/imagehosting/thum_1207666303eb4c11e4.jpg[/qimg]

Berger's reading of the purpose of the amendment seems to me both reasonable, and consistent with my reading, that the amendment clearly recognizes the right as existing independently of the stated purpose for not infringing on it.

 

[theprestige]

That is not clear from the text of the amendment, which actually implies the opposite.

How does it imply the opposite? The clause says, "the right to bear arms shall not be infringed". The militia clause rationalizes not infringing on the right. It doesn't create or invent it.

If the authors of the amendment intended the right to exist independently of the need for a militia, then why include the militia clause at all?

I have no idea.

ETA: Your phrasing represents a deep and uncrossable philosophical divide. The authors did not intend the right to exist. They were not trying to invent rights by fiat. They were recognizing a right already in existence, in the minds of the people and in their collective value system. They didn't intend anything about this right, other than to not infringe on it. They were addressing a question of policy regarding a right they already believed existed.

I don't know if it's an Australian thing generally, or just an arthwollipot thing, to think of rights as privileges invented and granted by government fiat, rather than innate principles of human morality that exist and can be claimed whether the government recognizes them or not. Either way, not everyone shares that view of rights. The authors of the Bill of Rights certainly didn't.

I think it is obvious from a literal reading of the text, despite Heller which I think was fundamentally wrong, that the need for the militia is the reason for the right to exist.

No, the text is clear: The need for the militia is the reason for the right to not be infringed. Rights exist, even when the government finds some rationale to infringe upon them. Rights exist, even when the government finds some rationale to *not* infringe upon them. The latter case is less common, but it's the case we're dealing with here.

The only real question is whether the government constitutionally needs any further rationale to infringe upon the right, other than waiving the necessity of a civilian militia.

 

[Hercules56]

Pennsylvania, September 28, 1776
Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power

Vermont, July 8, 1777
Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power

 

[theprestige]

Pennsylvania, September 28, 1776
Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power

Vermont, July 8, 1777
Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power

Thanks, that provides some interesting context. Maybe the real reason the 2nd Amendment is so confusing to us today is because its authors left out a bunch of explanatory clauses that they assumed went without saying.

"We don't want a standing army." - Goes without saying.

"Citizens already have arms for their own defense and the defense of their community, as is their right." - Goes without saying.

"Self-armed citizen militias are a good thing, even if standing armies are not." - Better spell this part out, so that Pennsylvania, Vermont, et. al don't get the wrong idea that we're banning citizen militias.

"So we're not going to infringe on the right of citizens to arm themselves." - Probably goes without saying, but better make it clear for the Pennsylvanians and Vermonters at the back of the room.

The end result being me trying to figure out why they didn't make a constitutional prohibition against a standing army.

 

[Thermal]

...The end result being me trying to figure out why they didn't make a constitutional prohibition against a standing army.

Cuz ya never know when you're gonna need one.

 

[arthwollipot]

ETA: Your phrasing represents a deep and uncrossable philosophical divide. The authors did not intend the right to exist. They were not trying to invent rights by fiat. They were recognizing a right already in existence, in the minds of the people and in their collective value system. They didn't intend anything about this right, other than to not infringe on it. They were addressing a question of policy regarding a right they already believed existed.

I don't know if it's an Australian thing generally, or just an arthwollipot thing, to think of rights as privileges invented and granted by government fiat, rather than innate principles of human morality that exist and can be claimed whether the government recognizes them or not. Either way, not everyone shares that view of rights. The authors of the Bill of Rights certainly didn't.

Don't labour under the misapprehension that Australia doesn't recognise preexisting or inherent rights. We don't enumerate them in a 200-year old virtually immutable document, though. We recognise rights in legislation, and through our signatory status to various international treaties, including the Universal Declaration of Human Rights.

Gun ownership, in particular, is a privilege, not a right. We do not necessarily extend that status to other rights. The right to free assembly, for example, is not a privilege. The right to freedom of religion is not a privilege.

So it's best not to make generalisations based on the status of one disagreement with America.

 

[theprestige]

Don't labour under the misapprehension that Australia doesn't recognise preexisting or inherent rights. We don't enumerate them in a 200-year old virtually immutable document, though. We recognise rights in legislation, and through our signatory status to various international treaties, including the Universal Declaration of Human Rights.

Gun ownership, in particular, is a privilege, not a right. We do not necessarily extend that status to other rights. The right to free assembly, for example, is not a privilege. The right to freedom of religion is not a privilege.

So it's best not to make generalisations based on the status of one disagreement with America.

Missing the point. The authors of the Second Amendment did not intend a right in it. They intended to not infringe on a right they already believed existed. I think that's clear enough from the text, and the additional context Hercules supplied makes it even clearer.

 

[Thermal]

Interesting article talking about Founding Father's era gun control. They were huge fans of it, seemingly. Registration, prohibition of concealed carry, no loaded guns in the home... by more than one metric, they were commonly "infringing" more than the SC reads their intentions now.

https://theconversation.com/five-types-of-gun-laws-the-founding-fathers-loved-85364

 

[Lothian]

Missing the point. The authors of the Second Amendment did not intend a right in it. They intended to not infringe on a right they already believed existed. I think that's clear enough from the text, and the additional context Hercules supplied makes it even clearer.

Not clear to me. Assumed you are right and they believed a right existed already let's look at how the 2nd amendment reads?

A well regulated Militia, being necessary to the security of a free State, the existing right of the people to keep and bear Arms, shall not be infringed.

If they are saying the existing right not affected we can leave it out as it is irrelevant. It is not the purpose of the amendment. What is left?

A well regulated Militia, being necessary to the security of a free State.....

It is unfinished. A well regulated Militia is deemed necessary, so
What are they going to do about it?

Your interpretation, seperating the first half of the sentence from the second makes the whole amendment pointless.

Of course you could say the second part was the aim, the militia part was fluff and the real point was that people should be able to keep arms.
But that doesn't fit with your explanation that they believed that. If they believed that there was no amendment necessary.

 

[JoeMorgue]

Other people have hit on/said the major points better then I could. Sane, reasonable gun frameworks exists in other countries and they haven't fallen into either anarchy or totalitarian states so we can address the "Sounds of dying children removed from the court transcripts because they might be disturbing" without having to have a huge philosophical donnybrook about it.

My only one caveat that I haven't seen addressed is that I don't think we should repeal the 2nd amendment while the precedents set by cases like Warren v. District of Columbia and Town of Castle Rock v. Gonzales stands.

You don't disarm a populace AND have a legal/Constitutional precedent that the police aren't obligated to help them.

I do think it is SOME level of fair for a populace go to "Okay if I'm not allowed to protect myself then who does?" (Obviously massive over simplification of what would be a very complicated Constitutional discussion.) I think it is reasonable to ask that that be addressed and clarified IN SOME WAY before any type of mass de-armament happens.

 

[lobosrul5]

Interesting article talking about Founding Father's era gun control. They were huge fans of it, seemingly. Registration, prohibition of concealed carry, no loaded guns in the home... by more than one metric, they were commonly "infringing" more than the SC reads their intentions now.

https://theconversation.com/five-types-of-gun-laws-the-founding-fathers-loved-85364

I was going to bring this up... there are many many instances of gun control in the early days of the United States. The 2A was of course enacted long before the 14thA which gave citizens protections against their rights being infringed upon by States or localities. Before that the Constitution was mostly only seen as an instrument to protect individual rights from the Federal Government. So it would've been perfectly acceptable for example for Georgia to enact legislation stating only white men who swore loyalty to the State may keep arms. So, a combination of the 2A and 14thA makes keeping and bearing arms a right that cannot be infringed upon. Unless you take it as a state right which no other amendment does*, so I'm skeptical there OR you take the militia clause as "organized" militia and one that must be satisfied for the latter clause. But no where does it mention "organized" or "government".

*the 10th just says if we dont say something here then its for the States, essentially. But that is not defining a specific right as reserved for the States.

 

[theprestige]

Not clear to me. Assumed you are right and they believed a right existed already let's look at how the 2nd amendment reads?

A well regulated Militia, being necessary to the security of a free State, the existing right of the people to keep and bear Arms, shall not be infringed.

If they are saying the existing right not affected we can leave it out as it is irrelevant. It is not the purpose of the amendment. What is left?

A well regulated Militia, being necessary to the security of a free State.....

It is unfinished. A well regulated Militia is deemed necessary, so
What are they going to do about it?

Your interpretation, seperating the first half of the sentence from the second makes the whole amendment pointless.

Of course you could say the second part was the aim, the militia part was fluff and the real point was that people should be able to keep arms.
But that doesn't fit with your explanation that they believed that. If they believed that there was no amendment necessary.

I think the additional context provided by Hercules allows for another interpretation: "People have the right to own arms for defense of themselves and others, and we're not going to infringe upon that."

Under that interpretation, "well-regulated militia" is just old-timey jargon for "people owning guns for defense of themselves and others (as is their right)".

I think this interpretation is consistent with similar principles and a more explicit recognition of the right, being expressed in Pennsylvania and Vermont at the time.

I also think this interpretation unifies the two clauses, rather than separating them. The "well-regulated milita" is essentially synonymous with the right to bear arms.

 

[Lothian]

I think the additional context provided by Hercules allows for another interpretation: "People have the right to own arms for defense of themselves and others, and we're not going to infringe upon that."

Under that interpretation, "well-regulated militia" is just old-timey jargon for "people owning guns for defense of themselves and others (as is their right)".

I think this interpretation is consistent with similar principles and a more explicit recognition of the right, being expressed in Pennsylvania and Vermont at the time.

I also think this interpretation unifies the two clauses, rather than separating them. The "well-regulated milita" is essentially synonymous with the right to bear arms.

So what is new? Keep calm and carry on is a meme not a law.
If people already have a right you don't need a law to simply repeat that right.

 

[Thermal]

So what is new? Keep calm and carry on is a meme not a law.
If people already have a right you don't need a law to simply repeat that right.

I think that theprestige is arguing that 2A doesn't codify the right, it just says "you know that arms right you already have? We are establishing that congress won't screw with it".

 

[Lothian]

I think that theprestige is arguing that 2A doesn't codify the right, it just says "you know that arms right you already have? We are establishing that congress won't screw with it".

Ok, but does that not lead to the 2nd amendment not giving any gun rights? If it is saying we won't change the rights you have, where are those rights for all US citizens to own guns codified?

If seems to me there is only one straight reading:- guns are there for the Militia. I find any other interpretation to be a real stretch which just begs another question.

 

[JoeMorgue]

Okay but when the Constitution was written the "Militia" wasn't like our National Guard or reserves, it was just normal citizens with guns.

"It's not for just a bunch of random private citizens with guns, it's for a militia" makes zero sense in 1776 because that's all a militia was at the time.

No "organized" Militia as in some kind of government organized pseudo-military hierarchical organization existed in the US until a significant period of time later.

If the 2nd Amendment only applies to "It's not a militia until you have a dental plan and a street address" that raises the questions of what exactly the Founding Fathers were trying to protect in 1776 because that didn't exist.

 

[JoeMorgue]

ETA:

Even to this day the Militia Act of 1903 lists militias as:

Organized militia – consisting of the National Guard and Naval Militia.

Unorganized militia – comprising the reserve militia: every able-bodied man of at least 17 and under 45 years of age, who are not members of the National Guard or the Naval Militia.

Even now, under our own laws, militia is defined as "citizen who are part of government organized part time military organization dot dot dot and everybody in your neighborhood who owns guns."

This is all a read herring because the Founding Fathers were 100% clear that they never intended their words to be sacrosanct, Jefferson WANTED the Constitution rewritten in full every, I want to say, 20 years just to keep it from becoming stagnant.

But the idea that as said in the Constitution "militia" only means organized military units is just not true.

 

[Lothian]

But the idea that as said in the Constitution "militia" only means organized military units is just not true.

The militia definitions I have seen all post date the amendment.
What is inescapable however is the amendment gives a purpose of a Militia and a well organised one. Words in this type of thing are carefully considered and you don't tend to find superfluous ones hanging around. They had something in mind they described as a well organised Militia.