What Does the Second Amendment Really Say?

[Dr. Keith]

I think [the courts have been getting this all wrong for the past 230 years] is what some of us arguing, yes.

I'd say it is a more recent trend, but can see your reasoning. On the whole I don't think the courts have done a very good job on this issue. Even when they were doing the best they could with the case in front of them.

 

[xjx388]

I don't think the 2A could be any clearer. People have the right to bear arms in the USA. Now as to what the bears think of this . . .

But seriously folks, I think you have to engage in some convoluted thinking to make this simple sentence confusing. The first part gives a justification for the second part. Then if you go and read what the Framers actually thought about it and argued about it before they wrote this exceedingly simple sentence, it becomes obvious that the purpose of the 2A was to make sure the government couldn't infringe on an individual's right to bear arms. That second part is what the 2A really says.

 

[newyorkguy]

By "us" I meant the gun rights advocates. That finally, in 2008 and then in 2010 (McDonald) the courts got it right. People have an absolute right to possess a handgun for self protection.

In another year or two -- unless Antonin Scalia gets hit by a truck -- I expect SCOTUS to decide the SA also extends to the carrying a handgun. (Peruta)

 

[Dr. Keith]

By "us" I meant the gun rights advocates. That finally, in 2008 and then in 2010 (McDonald) the courts got it right. People have an absolute right to possess a handgun for self protection.

In another year or two -- unless Antonin Scalia gets hit by a truck -- I expect SCOTUS to decide the SA also extends to the carrying a handgun. (Peruta)

Ah, got it.

 

[Dr. Keith]

The first part gives a justification for the second part.

OK, how is that justification currently relevant? And if it is no longer relevant does that have any impact on the second part?

See, that is why some like to ignore the first part completely.

 

[Minoosh]

I'm not a gun advocate, and could argue the Constitution endorsed the right to carry a musket. I could also argue that the amendment does not cite personal self-defense, only regulated militias. But despite the ambiguity created by the sentence structure, I believe the intent was to affirm a right to gun ownership.

What I don't get is how any legislation at all seems to raise the ire of some advocates. It seems obvious to me that owning a personal nuclear weapon would not be protected, for at least two reasons: It's well beyond what anyone could have envisioned in the 18th century, and it creates an unacceptable risk to others.

I'm very sympathetic to the viewpoint that gun control legislation isn't going to disarm criminals, but I don't see the problem with establishing a database and installing some sort of tamper-resistant ID system. That's not disarming anyone. However that is off-topic.

 

[Jrrarglblarg]

OK, how is that justification currently relevant? And if it is no longer relevant does that have any impact on the second part?

See, that is why some like to ignore the first part completely.

Please see my post #159. Thanks in advance.

 

[BStrong]

I'm not a gun advocate, and could argue the Constitution endorsed the right to carry a musket. I could also argue that the amendment does not cite personal self-defense, only regulated militias. But despite the ambiguity created by the sentence structure, I believe the intent was to affirm a right to gun ownership.

What I don't get is how any legislation at all seems to raise the ire of some advocates. It seems obvious to me that owning a personal nuclear weapon would not be protected, for at least two reasons: It's well beyond what anyone could have envisioned in the 18th century, and it creates an unacceptable risk to others.

I'm very sympathetic to the viewpoint that gun control legislation isn't going to disarm criminals, but I don't see the problem with establishing a database and installing some sort of tamper-resistant ID system. That's not disarming anyone. However that is off-topic.

Leaving out the nuke strawman, there were different levels of arms technology known to the writers of the Constitution and the BoR, and no distinction was drawn between types acceptable for civilian or governmental use.

Even in the example of US v Miller in 1939 the court found (based on ignorance, only the state side was present before the court) that a short barreled shotgun wasn't a military or militia weapon and therefore wasn't protected under the Second...later observers have noted such a statement tends to support the position that current day restrictions on firearms possession may lie in what firearms have a reasonable relationship to that "well regulated militia" and not what is used for sporting clays or cowboy action shooting.

 

[TubbaBlubba]

Since I can't prove a negative, make your case that drinking is a right. Be sure to cite any case law you deem necessary or the relevant parts of the Constitution. Who knows, if you can do what no one has done for 230 years and litigate the issue all the way up to the SCOTUS it may be one after all!

But you were saying that rights are not dependant on enumeration in the consitution - clearly thence, the constitution is irrelevant in determining of something is a right. So what is the rationale for deciding that something is, or is not, a right?

 

[xjx388]

OK, how is that justification currently relevant? And if it is no longer relevant does that have any impact on the second part?

See, that is why some like to ignore the first part completely.

I think that it has always been relevant to some degree. There may come a day when we need every citizen to stand up against an outside invader. And the other fear that was shared by the Framers, is the tyranny of the State. The prevailing sentiment of the time was that disarming the populace was the surest means of enslaving the populace. Thus, an armed populace was a "militia" against tyranny of the State as well. That is no less true now than it was then.

 

[Dr. Keith]

Please see my post #159. Thanks in advance.

I saw it and I think I even understand it. But I don't think it counters what I was getting at.

I was simply pointing out that if one labels the first part as a "justification" then one has to find a way to deal with it when the justification becomes moot. Therefore, few on the guns-rights side of the aisle apply that label. They would like it to be a bit further removed from the second part.

And in fact, the drafters could have left the first part out completely if clarity was their intent.

 

[theprestige]

Please see my post #159. Thanks in advance.

And my post #83.

 

[Dr. Keith]

I think that it has always been relevant to some degree. There may come a day when we need every citizen to stand up against an outside invader.

Yeah, I'd rather the Marines showed up than depend on the accountant down the street. That's why we scuttled that whole "no standing army" bit some time ago.

And the other fear that was shared by the Framers, is the tyranny of the State. The prevailing sentiment of the time was that disarming the populace was the surest means of enslaving the populace. Thus, an armed populace was a "militia" against tyranny of the State as well. That is no less true now than it was then.

Actually it is far less true now than it was then. In the past 50 years numerous governments have been overthrown by unarmed masses or political pressure and none have been overthrown by armed citizens independent from the military. It is silly to think a thousand Glocks are more effective at changing the government of the US than a single vote.

 

[Dr. Keith]

And my post #83.

But it's long and has so many paragraphs, do I have to?

OK, I actually liked you post #83. While I disagree with your conclusion I like the fact that you tackle this issue head on and parse out your reasoning for separating the "justification, then" from the "right, now".

But, as I said to AG, I don't think that most on the guns rights side like to parse it out as finely as you did. It doesn't fit on a bumper sticker, for one thing. And it just generally leads to people thinking more about the justification, like my post above to xjx388, where we can go back and forth instead of focusing on the second part without any equivocation. "The right of the people to keep and bear Arms shall not be infringed."* That is all they want to talk about, so there is no need to talk about the rest.

If only the framers could have gotten it through in such a clean form . . .


*Note that I had to remove a damn comma just to make the quote legible.

 

[theprestige]

I saw it and I think I even understand it. But I don't think it counters what I was getting at.

I was simply pointing out that if one labels the first part as a "justification" then one has to find a way to deal with it when the justification becomes moot. Therefore, few on the guns-rights side of the aisle apply that label. They would like it to be a bit further removed from the second part.

And in fact, the drafters could have left the first part out completely if clarity was their intent.

Well, it probably seemed pretty clear to them at the time.

Anyway, I think the first part is obviously a justification. The question is, by stating one justification explicitly, did the Founders nullify all the implicit justifications for not infringing on a right?

My take is they did not. The second part clearly recognizes a right, and the default position with rights always should be that any and all justifications, explicit, implicit, or hypothetical, are applicable, unless explicitly rejected and upheld by the courts.

I wonder if any gun control advocate believes the opposite? That if the justification vanishes, the bar on infringement vanishes? If so, how would that play out? The first part seems to assert the justification in in perpetuity. As much as we may not see a need for a militia today, the Constitution clearly states otherwise. Is it legally supportable for the Court to simply declare that the Constitution is wrong about the need for a militia, and therefore the bar on infringement is lifted?

Or would the Court have to rule that the Amendment must be repealed?

And if the need for a militia is still in effect, why isn't the Federal government cracking down on the blatantly unconstitutional lack of same? Or does the National Guard fulfill that clause? If that's the case, then the two clauses have been decoupled in practice for quite some time. When interpreting the second clause, the first clause can probably be ignored purely on precedent, at this point.

 

[tyr_13]

I'm not a gun advocate, and could argue the Constitution endorsed the right to carry a musket. I could also argue that the amendment does not cite personal self-defense, only regulated militias. But despite the ambiguity created by the sentence structure, I believe the intent was to affirm a right to gun ownership.

What I don't get is how any legislation at all seems to raise the ire of some advocates. It seems obvious to me that owning a personal nuclear weapon would not be protected, for at least two reasons: It's well beyond what anyone could have envisioned in the 18th century, and it creates an unacceptable risk to others.

I'm very sympathetic to the viewpoint that gun control legislation isn't going to disarm criminals, but I don't see the problem with establishing a database and installing some sort of tamper-resistant ID system. That's not disarming anyone. However that is off-topic.

There are many things that can be done to help reduce gun violence inside the limits of the 2nd Amendment as it currently is held by the courts. Gun control advocates who draw attention to their attacks on the amendment and the very concept of gun ownership do the cause a great deal of damage. Those that advocate for laws that are sure to be struck down after lengthy and expensive court battles do even more. It only fosters more distrust from both gun lovers and moderates. These are the people who need to be brought on board for many of the measures we can do and stand a good chance of helping the entire situation. It won't happen as long as people keep talking about 'a good start' and degrading people who don't support 2nd Amendment repeals.

 

[phunk]

How is it a strawman? Has Kid Eager offered anything as to what the part after the comma means?

Do you know what the comma means? You seem to be treating it as if it's a semicolon.

 

[phunk]

My translation:

"One really good reason for having guns is so that the people can be organized into militias and defined our new homeland against invaders. Because of this really good reason (among others) we want to guarantee that the government will never ever be allowed to interfere with the right of citizens to own and carry firearms."

That is how I interpret the 2nd Amendment. You may disagree.

That is precisely how I read it. Makes no sense grammatically if you try to pretend it's two independant clauses.

 

[tyr_13]

Do you know what the comma means? You seem to be treating it as if it's a semicolon.

At the time colon, semi-colon, and comma were all interchangeable. The dash (-) was also used at some time as a colon.

 

[Minoosh]

Leaving out the nuke strawman, there were different levels of arms technology known to the writers of the Constitution ...

You see a straw man, I see an analogy. If the constitutional protection does not extend to all arms, IMO it's valid to speculate on where that protection stops.

Even in the example of US v Miller in 1939 the court found (based on ignorance, only the state side was present before the court)

What a weird case.

I still don't see the problem with establishing a database, but again, that is off topic.