Another Second Amendment win in California

[Xulld]

If it always meant what Heller said it meant there wouldn't have been any Heller.

This is like saying that if Zimmerman had never been brought to court no one would have been shot.


Its insane.

Also: if the meaning was as obvious as the Heller-bashers think it is, Heller wouldn't have had four dissenters.





The fact that Heller was 5-4, rather than 4-5, means that at the moment it is the law of the land. The fact that Heller was 5-4, rather than 9-0, means that the majority reading is not somehow beyond debate, settled for all time, or somehow an fundamental truth so obvious that Hobbes could have derived it from pure logic starting from the state-of-nature.

I like to ask (and cannot recall getting an answer): if you think Heller is the end of any gun-rights debate, surely you must agree that Roe vs. Wade---a 7-2 decision---ended the abortion-rights debate by proving once and for all that the 14th Amendment protects individual medical autonomy. Right?

The difference is that the 5 have historical support, and the 4 are ignoring many many documents that clearly state they are wrong.

You cannot read anything by Tucker regarding the 2nd amendment and the precedents set from then until the chipping away of the rights began and not have a clear picture of individual rights.

I want each justice that dissented to explain what Tucker was talking about when he refered to forestry, and game laws preventing farmers from owning guns, and how this was not about an individual right? Where exactly does the militia come into play in that example? How does this refer to anything military at all? It doesn't. When Tucker and others were creating these distinctions from the old English law to the new law of the land here based on the constitution why mention this at all if the right was never intended to be individual?

They will be silent on such questions, I guarantee, that is the way USSC justices work, when they know they cannot counter a given fact they ignore it.

Again its insane, historical revisionism is strong in this society. Just pretend it never happened and have it your own way. Then if the majority let you get away with it, it was always so.

 

[ben m]

The difference is that the 5 have historical support, and the 4 are ignoring many many documents that clearly state they are wrong.

You're reaffirming my point. You're not actually relying on Supreme Court authority here, you're just repeating your own opinion (that history/nature/the text/Hobbes/justice etc. etc. require a right to arms), and because you think your opinion is right you think anyone who disagrees is wrong. You know why I don't care? Because of this:

I want each justice that dissented to explain what Tucker was talking about ... They will be silent on such questions, I guarantee, that is the way USSC justices work, when they know they cannot counter a given fact they ignore it.

which, hilariously, proves that you haven't actually read the dissents, one of which rebuts the majority's reliance on Tucker by quoting Tucker himself offering various contradictory views. Tell me again why the dissenters "will be silent", why don't you?

 

[Xulld]

You're reaffirming my point. You're not actually relying on Supreme Court authority here, you're just repeating your own opinion (that history/nature/the text/Hobbes/justice etc. etc. require a right to arms), and because you think your opinion is right you think anyone who disagrees is wrong. You know why I don't care? Because of this:



which, hilariously, proves that you haven't actually read the dissents, one of which rebuts the majority's reliance on Tucker by quoting Tucker himself offering various contradictory views. Tell me again why the dissenters "will be silent", why don't you?

Whip it out. Show me these contradictory views, this has been done before . . . its not a winning strategy for the "collective right" group.

It requires mental hoola hoops of epic proportions, and still leaves unexplained the examples supporting individual rights tucker and others give. At most your contradictions will show that both a collective right and an individual right where intended . . .

You loose both ways. YOUR burden is to prove an individual right was NEVER intended, and YOU thus have to deal with the contradictions, if they really are contradictions and not examples of each. I claim there are NO contradictions, just examples of what kinds of rights the amendment protects.

Try it bud, lets see your reasoning.

http://www.law.cornell.edu/supct/pdf/07-290P.ZD
http://www.law.cornell.edu/supct/pdf/07-290P.ZD1
I have even made it easy on you, here are the two dissenting opinions in Heller.

Enjoy the mental hoola hoops and ignoring problems they they themselves raise with there own opinions.

 

[ben m]

Whip it out. Show me these contradictory views, this has been done before . . . its not a winning strategy for the "collective right" group.

Can't you read? Seriously, Stevens walks you right through it. Let me make it easy for you:

Scalia quotes Tucker only when he says that the 2nd Amendment expresses the same idea as the English 1689 Bill of Rights---in which statement he supports your view. Scalia somehow neglects to quote Tucker saying the opposite:

Tucker suggested that the Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendment: “If a State chooses to incur the expense of putting arms into the Hands of its own Citizens for their defense, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alleged indeed that this might be done for the purpose of resisting the laws of the federal Government, or of shaking off the union: to which the plainest answer seems to be, that whenever the States think proper to adopt either of these measures, they will not be with-held by the fear of infringing any of the powers of the federal Government. But to contend that such a power would be dangerous for the reasons above maintained would be subversive of every principle of Freedom in our Government; of which the first Congress appears to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become part of it, viz., ‘That 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.’ To this we may add that this power of arming the militia, is not one of those prohibited to the States by the Constitution, and, consequently, is reserved to them under the twelfth Article of the ratified amendments ..."

There is your great authority, Tucker, saying that purpose of the amendment is to forbid the Federal government from disarming state militias. Which is the same thing that drafts of the amendment said.

Here are the words of honest-to-goodness Founding Father George Mason (VA) describing the need for such an amendment:

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.”

(Please note: Scalia is unable to quote an actual Founder describing your view of gun rights. He is able to quote people describing your view of gun rights. Those people include: an unimportant speechifier at a Pennsylvania government meeting, a bunch of 1870s opinionizers, and non-Americans, like the drafters of the English Bill of Rights of 1689. Point being: Mason's views are singularly relevant to the original meaning of the Constitution. Scalia's sources are distantly relevant.)

Here's what Mason drafted for inclusion in the constitition:

“17th, 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 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 be governed by the civil power.”

“19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.”

And that, edited for length, is exactly the language that made it into the Constitution. We don't have to speculate about what it might have meant, because Mason explicitly told us why he's writing it---to set up state militias that the federal government cannot disarm.

Yes, there are other people who wanted a personal self-defense right. These are the sort of words they used. For example, Pennsylvania:

7. “That the people have a right to bear arms for the defense 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.

Notice that Pennsylvania's delegation did not, mysteriously, think "keep and bear arms" by itself referred to self-defense or hunting. They wanted to refer to self-defense and hunting so they used the words "defense of themselves" and "killing game". Here is what Virginians sounded like when drafting a personal right to firearms in their state Bill of Rights:

No freeman shall ever be debarred the use of arms (within his own lands or tenements)

(NB: Stevens has the 2nd half of the quote bracketed, it's probably not word-for-word. Also, notice that this---a draft of an actual, obvious individual right to guns---only applied on one's own lands, not in Starbucks. This text shows that even an individual-gun-rights advocate, in the era of the Founders, was explicitly providing for bans on randomly toting weapons around.

Do you find the words "defense of themselves" or "hunting" in the Constitution as passed? No. Does it guarantee "freemen" the "use of arms" in certain places? No. The final 2nd Amendment quotes from the Virginia draft--- the all-militia, no-hunting, no-self-defense draft. If Madison had wanted to include self-defense and hunting, they had every opportunity to do so, and clear language in which to do it. None of that language is in there. Why not?

I'm just quoting Stevens here, dude. Read it yourself. You already linked to it.

Also, to a large extent, I don't care. I'm not a textual originalist. No matter why the Founders thought Americans would benefit by "keeping and bearing" muskets and flintlocks, it bears no resemblance to what's actually happening in an urbanized, well-policed country full of anonymous semiautomatic handguns.

ETA:

So, seriously: if you think that quoting an actual Founding Father saying what the 2nd Amendment is about is a "mental hula hoop", then I don't know what you think of Scalia's crazy excuse for reading the Operative Clause first and then circling back to ask whether the Prefatory Clause disproves this reading.

 

[Xulld]

Ohh I can read, AND comprehend.

Is this the totality of your argument against an individual right to "keep and bear" arms, that should not be "infringed"? That because it was not explicit therefor collective rights?

Also don't sit here and play the "I am a dumb sheep I just support these ideas not understand them", card and pretend you have no need to support the argument you are using to rebut mine.

If you care not a wit about original intent then you stuck your foot in the pile in posting at all, because if the intent of the founders matters not at all, then what exactly does the constitution stand for? If precedent is useless, and history matters not then we are all wasting our time talking about this at all.

An equation only remains an equation so long as each side remains constant until both sides are changed. The constitution being one side, and law being the other . . .

 

[ben m]

Is this the totality of your argument against an individual right to "keep and bear" arms, that should not be "infringed"? That because it was not explicit therefor collective rights?

That is like arguing that the Fourth Amendment reads "No warrants shall issue". Yes, those words appear in there in order, but in context they don't mean what "No warrants shall issue" means in isolation. Nobody dismantles sentences like that. Oh, wait, except Scalia, and he had to use a biiiig mental hula hoop (great term!) to get there.

Tell me. In this draft:

That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead

Tell me, what Colonial-era group "religiously scrupulous" of practicing the thing you claim is an individual right? Why would the Quakers need to be "exempted" from the right to keep and bear arms, if it refers to ownership of hunting rifles?

If, as you claim, "bearing arms" plainly represents the right of Nancy Lanza to wear a holstered handgun into Starbucks, who is the drafter talking about who Nancy Lanza might pay to "bear arms in her stead"?

 

[Xulld]

That is like arguing that the Fourth Amendment reads "No warrants shall issue". Yes, those words appear in there in order, but in context they don't mean what "No warrants shall issue" means in isolation. Nobody dismantles sentences like that. Oh, wait, except Scalia, and he had to use a biiiig mental hula hoop (great term!) to get there.

Tell me. In this draft:



Tell me, what Colonial-era group "religiously scrupulous" of practicing the thing you claim is an individual right? Why would the Quakers need to be "exempted" from the right to keep and bear arms, if it refers to ownership of hunting rifles?

If, as you claim, "bearing arms" plainly represents the right of Nancy Lanza to wear a holstered handgun into Starbucks, who is the drafter talking about who Nancy Lanza might pay to "bear arms in her stead"?

Woah woah there, I have made no claim yet, we are dealing with your claims. I was asking you to define your claim clearly and support it, and once done I would destroy it.

You already have your gas and lighter ready to burn your straw man and I have yet to offer an argument beyond challenging the vague claims of yours that the 2nd confers a collective right for states to have militias with guns . . . (sort of odd to have a militia without guns . . .)

I note you avoided dealing with my challenges . . . 1)does original intent matter at all in your opinion? 2)Does it matter if law is constitutional? 3)How can we determine if law is or is not constitutional if we care not a wit about the intentions of the writers of the amendments in question? 4) What is the point of an amendment process with such a "living" document, which is really just a euphemism for making it up as we go?
and finally . . .
5) is your sole claim that the intent of the founders was for the 2nd to confer ONLY a collective right?

Basically I am concerned . . . is this discussion worth having. If you really do not care a wit for the internal consistency of law and rights, then I have nothing to say to you.

 

[ben m]

Woah woah there, I have made no claim yet, we are dealing with your claims. I was asking you to define your claim clearly and support it, and once done I would destroy it.

Earlier you planned to "destroy me" because you didn't think Stevens' opinion could address Tucker (it did) and then you were going to "destroy me" because you thought Stevens ignored historical evidence (it didn't). Have you had a chance to read Stevens' opinion yourself yet, Xulld?

I note you avoided dealing with my challenges . . . 1)does original intent matter at all in your opinion?

One has to strike a balance. It matters as a starting point, and one deviates from it only slowly and carefully. The reason I am arguing "original intent" here is that you seemed to care a lot about it. Fortunately, both original intent and modern common sense seem to be on my side. If they were in opposition it'd be a tougher argument.

If you don't care about original intent, hey, great. Let's go back to where you explain what upsides accrue to a nation's citizens, which compensates for the downside of 20-30,000 person per year gun death rate (compare 7000 gun deaths at the hands of the British during the entire American Revolution). That is a much more interesting question, in my mind, than "original intent". But if that's the argument you want to have, please stop avoiding it by simply citing the 2nd Amendment.

If you DO care about original intent, hey, great---listen to Founding Father George Mason talk about the original intent of the 2nd Amendment.

2)Does it matter if law is constitutional? 3)How can we determine if law is or is not constitutional if we care not a wit about the intentions of the writers of the amendments in question?

The Founders knew that they didn't actually have "original intents" clear enough to anticipate every possible future event. Therefore they created two mechanisms which obviously allow the interpretation to vary: the Amendments process, and the Supreme Court. Gradual deviations from original intent is part of the original intent.

4) What is the point of an amendment process with such a "living" document, which is really just a euphemism for making it up as we go?

The amendment process gives the fast-moving, democratic mob the ability to change the document for any reason whatsoever, including weird electoral whims. The Supreme Court creates a very slow-moving, electorally-insulated, deliberative body that is appropriate for the very gradual accretion of case law. They do different things.

You currently live in a country with 200+ years of case law that does not particularly adhere to original intent. Not in the way you seem to suggest the 2nd Amendment intent (as you see it) must be adhered to.

5) is your sole claim that the intent of the founders was for the 2nd to confer ONLY a collective right?

Listen, I bet if you asked the Founders this question, they wouldn't know what you meant. "Individual vs. collective" firearms rights means something important today, when there's a National Guard armory and George Zimmerman's glove compartment, and these are different things. In 1789, the body of individually-owned flintlocks and the collectively-useful body of flintlocks-that-show-up-when-you-muster-an-army were the same body.

I'd have to say that the distinction you're making did not really exist in 1789 and the Founders did not have a reason to express any intent on the topic. If the Founders totally reasonably envisioned the Federal government, someday, "disarming the collective militia"? Well, sure, they might well have envisioned it doing so by going to state militiamens' houses and taking away their flintlocks. And the 2nd Amendment is perfectly clear in prohibiting the Federal government from doing that. It fails to anticipate the thing that did not exist in 1789, this body of utterly-militarily-useless weapons which creates a distinction between the individual right and the state-militia right.

 

[The Norseman]

Earlier you planned to "destroy me" because you didn't think Stevens' opinion could address Tucker (it did) and then you were going to "destroy me" because you thought Stevens ignored historical evidence (it didn't). Have you had a chance to read Stevens' opinion yourself yet, Xulld?



One has to strike a balance. It matters as a starting point, and one deviates from it only slowly and carefully. The reason I am arguing "original intent" here is that you seemed to care a lot about it. Fortunately, both original intent and modern common sense seem to be on my side. If they were in opposition it'd be a tougher argument.

If you don't care about original intent, hey, great. Let's go back to where you explain what upsides accrue to a nation's citizens, which compensates for the downside of 20-30,000 person per year gun death rate (compare 7000 gun deaths at the hands of the British during the entire American Revolution). That is a much more interesting question, in my mind, than "original intent". But if that's the argument you want to have, please stop avoiding it by simply citing the 2nd Amendment.

If you DO care about original intent, hey, great---listen to Founding Father George Mason talk about the original intent of the 2nd Amendment.



The Founders knew that they didn't actually have "original intents" clear enough to anticipate every possible future event. Therefore they created two mechanisms which obviously allow the interpretation to vary: the Amendments process, and the Supreme Court. Gradual deviations from original intent is part of the original intent.



The amendment process gives the fast-moving, democratic mob the ability to change the document for any reason whatsoever, including weird electoral whims. The Supreme Court creates a very slow-moving, electorally-insulated, deliberative body that is appropriate for the very gradual accretion of case law. They do different things.

You currently live in a country with 200+ years of case law that does not particularly adhere to original intent. Not in the way you seem to suggest the 2nd Amendment intent (as you see it) must be adhered to.



Listen, I bet if you asked the Founders this question, they wouldn't know what you meant. "Individual vs. collective" firearms rights means something important today, when there's a National Guard armory and George Zimmerman's glove compartment, and these are different things. In 1789, the body of individually-owned flintlocks and the collectively-useful body of flintlocks-that-show-up-when-you-muster-an-army were the same body.

I'd have to say that the distinction you're making did not really exist in 1789 and the Founders did not have a reason to express any intent on the topic. If the Founders totally reasonably envisioned the Federal government, someday, "disarming the collective militia"? Well, sure, they might well have envisioned it doing so by going to state militiamens' houses and taking away their flintlocks. And the 2nd Amendment is perfectly clear in prohibiting the Federal government from doing that. It fails to anticipate the thing that did not exist in 1789, this body of utterly-militarily-useless weapons which creates a distinction between the individual right and the state-militia right.

You really could have done without the appeals to emotion.

The Supreme Court always has the ability to reverse itself, but for now, it's been decided that the 2nd amendment protects an individual right and not a collective one.

 

[ben m]

The Supreme Court always has the ability to reverse itself, but for now, it's been decided that the 2nd amendment protects an individual right and not a collective one.

I agree, as I've now done repeatedly. Not that that stops people from accusing me of stomping on the constitution.

I think the case was a bad misreading of the 2nd Amendment (as written and as historical fact)---in other words, I find the scholarship and argument of Steven's dissent far more realistic than that of Scalia's opinion. Is it fair to say so?

I think the outcome of the case is a bunch of bad law that makes the US a worse place to live. You can phrase that three different ways:

• If you think the 2nd Amendment is an individual right on grounds of framer intent, then the conclusion is "The framers included something into the Constitution whose net effects are stupid and destructive, not realizing how bad it would get. Oh well." (I'm not fond of that framing.)
• If you think the 2nd Amendment is an individual right on textual grounds, then the conclusion is "The framers' unclear description of militias accidentally inserted something stupid and destructive into the Constitution, by failing to notice multiple readings of one sentence. Oh well." (I'm not fond of that framing either.)
• If you think the 2nd Amendment is actually a state-militia-autonomy guarantee, the conclusion is "Five Supreme Court justices inserted something stupid and destructive into Constitutional case law. Oh well for now." (That sounds about right to me.)

The only alternative I can think of is this one:

• The 2nd Amendment does not, on balance, have stupid and destructive effects, so you should be happy that it's in the Constitution (on textual/intent/natural-rights/case-law grounds.)

My problem with the last one is: people have a hard time explaining the cost-benefit analysis under which guns (specifically handguns) are actually doing America some sort of realistic net good. (Contrariwise, a positive case for hunting rifles, even semiautomatics, is pretty easy.) My attempts to elicit an explanation of the net-good accomplished by handguns have always gone back to something that sounds like "I say it's a right; rights are not for explanation/questioning, just obedience."

 

[newyorkguy]

...for now, it's been decided that the 2nd amendment protects an individual right and not a collective one.

I can agree with that. In fact that was really my sole point all along.

 

[W.D.Clinger]

I think the case was a bad misreading of the 2nd Amendment (as written and as historical fact)---in other words, I find the scholarship and argument of Steven's dissent far more realistic than that of Scalia's opinion. Is it fair to say so?

Yes, it's fair to say that.

(What's not fair is to pretend either opinion had no legal or historical support whatsoever. You haven't done that, but several others have.)

I think the outcome of the case is a bunch of bad law that makes the US a worse place to live. You can phrase that three different ways:

• If you think the 2nd Amendment is an individual right on grounds of framer intent, then the conclusion is "The framers included something into the Constitution whose net effects are stupid and destructive, not realizing how bad it would get. Oh well." (I'm not fond of that framing.)
• If you think the 2nd Amendment is an individual right on textual grounds, then the conclusion is "The framers' unclear description of militias accidentally inserted something stupid and destructive into the Constitution, by failing to notice multiple readings of one sentence. Oh well." (I'm not fond of that framing either.)

Both of those sound about right to me. (I'd say "may be unfortunate" instead of "are stupid and destructive", perhaps because I have lived in states and regions where high rates of gun ownership coincide with low (as in European-level) rates of homicide.)

Reading the second amendment as an individual right can be supported both textually and on grounds of framer intent. That's not to say there are no other ways to read the amendment, but it's silly to deny the existence of evidential support for reading it as an individual right.

• If you think the 2nd Amendment is actually a state-militia-autonomy guarantee,

Yes, I think that also. I think the framers of that amendment would have been puzzled by the modern idea that a right to keep and bear militia-relevant arms could be separated from an individual right to keep and bear arms.

the conclusion is "Five Supreme Court justices inserted something stupid and destructive into Constitutional case law. Oh well for now." (That sounds about right to me.)

That doesn't sound about right to me. I'd say the conclusion is "Nine Supreme Court justices, trying to do the best they could to respect the text, original intent, and previous legal decisions concerning this problematic constitutional right, voted 5-4 to give us the decisions in both Heller and McDonald."

It would be reasonable for me to wish the dissenting justices had been in the majority, but it would be unreasonable for me to claim the majority had deliberately "inserted something stupid and destructive into Constitutional case law."

 

[WildCat]

For anyone who thinks it's a collective right or the right of the states to keep and bear arms, please provide a rational reason why "the people" was used instead of "the states" or "the militia".

And if "the people" doesn't really mean "the people" then there is also no individual right to peaceably assemble, and to petition the government for a redress of grievances. Nor is there an individual right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. There's also the problem with the wording of the 10th Amendment, which refers to the rights of the states and the people, why do that if they're the same thing?

This is why I find it absurd to define "the people" as anything but "the people".

 

[Xulld]

I am still awaiting an argument for the exclusivity of collective rights regarding the 2nd amendment.

So far the extent of the "argument" from forum posters here is that it was not explicit enough in the text of the amendment itself, and that when Tucker referenced collective rights and individual rights these were contradictions and not unique descriptions of each facet of the amendment's purpose.

That is like arguing that the Fourth Amendment reads "No warrants shall issue".

Lets stick to the 2nd amendment, and your claim that an individual right to keep and bear arms was never intended.

We can have a different discussion regarding the 4th at another time.

 

[ben m]

Both of those sound about right to me. (I'd say "may be unfortunate" instead of "are stupid and destructive", perhaps because I have lived in states and regions where high rates of gun ownership coincide with low (as in European-level) rates of homicide.)

Right! That's the sort of thing that can happen, of course, in a country where gun ownership is regulated by legislature and not by the Constitution. If the voters of Idaho are happy with loose gun laws, that's what they'll get. The voters of Washington DC wanted stricter gun laws---it was not some federal imposition---but Heller overruled them. Weird, huh?

Reading the second amendment as an individual right can be supported both textually and on grounds of framer intent. That's not to say there are no other ways to read the amendment, but it's silly to deny the existence of evidential support for reading it as an individual right.

Reading the evidence Scalia presents, I think this evidence is extremely thin. Scalia is only able to show that some people in colonial times wanted hunting and self-defense to be mentioned in this Constitution, like it was in state constitutions. This is indeed meaningful, but is it more meaningful than explicit descriptions (like those by Mason) of the need to prevent the Feds from disarming state militiamen, which he stated clearly using exactly the language in the Constitution? To get Scalia's reading, you have to accept that "people keep and bear arms" means one thing when Mason is explaining its meaning, but means something different when put down with half of the explanation removed.

It would be reasonable for me to wish the dissenting justices had been in the majority, but it would be unreasonable for me to claim the majority had deliberately "inserted something stupid and destructive into Constitutional case law."

OK, while we're being charitable, maybe "deliberately destructive" is too strong a word. They inserted something of their own free will and/or error, not under legitimate compulsion by the text. The thing they inserted is, it turns out, stupid and destructive.

For anyone who thinks it's a collective right or the right of the states to keep and bear arms, please provide a rational reason why "the people" was used instead of "the states" or "the militia".

Because an 1789-era militia simply was the people and their arms. The state constitutions and BoR drafts say so:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms ...

Who are the militia? They consist now of the whole people, except a few public officers.

You ask why they phrased it "the people". (I'll leave aside, but not dismiss, Gary Wills' argument that this is a metonym for the state.) Well, why shouldn't they have phrased it that way? In 1789, a state militia was the people. If New Hampshire decided to "call up" the militia, a bunch of individual farmers and traders would show up with their personal flintlocks. If the Federal Government wanted to prevent New Hampshire from calling up a militia, how would they do it? They'd have to disarm the individual people. If you were sitting around in 1789 saying "let's proscribe this", of course you'd phrase it as "the people". "the right of the militia to keep and bear arms"? "The right of the state to maintain armories"? Those would not have addressed the Federalist concern of the time. That's why they didn't phrase it that way.

And if "the people" doesn't really mean "the people" then there is also no individual right to peaceably assemble, and to petition the government for a redress of grievances. ...

See, here is where framer-intent helps a lot. We know precisely why the Founding Fathers wanted a right to peaceably assemble. We know that they meant it to apply to individuals, for any purpose the individuals saw fit. They knew what bad effects might occur if this individual right was denied. There is not a single shred of contemporary text suggesting a collective right here. There is lots of contemporary text explicitly explaining the individual rights here. Has anyone ever tried to alter, bias, or strain these readings? Of course not.

We are not robots. We are not a bad Google Translate algorithm circa 2005. We do not have to read the word "people" and robotically attach a robotic meaning to it with no regards for context. The English language doesn't work like that.

I am still awaiting an argument for the exclusivity of collective rights regarding the 2nd amendment.

My argument for the exclusively collective right, embodied in the 2nd Amendment, is that the Founding Fathers were explicitly concerned about an implication of the collective right. They used 2nd-amendment-like language, explicitly, when discussing a collective armed body. They used 2nd-Amendment-like language when discussing their fear that the Federal Government would disarm the collective armed body. They drafted an amendment referring to a half-dozen minutiae ("well-regulated", religious exemptions, pay someone to bear in your stead, etc.) of the governance of this collective armed body. There's a great reason, in 1789, to want the Constitution to want to protect the states' collective armed bodies against Federal interference.

The "individual" right? There is scanty evidence that the Founders were concerned about individual hunting or self-defense at all. They did not use 2nd-amendment-like language when discussing individual hunting or self-defense. They were not concerned that the Federal government would interfere with individual self-defense. They drafted an amendment which at no time mentioned any detail associated with individual hunting or self-defense. There was virtually no reason, in 1789, to imagine want the Constitution to protect individual hunting or self-defense against some unspecified Federal interference.

It walks like a collective right, quacks like a collective right, and swims like a collective right.

The only place to find an individual right is by taking one half-sentence out of its complete sentence, our of its Constitutional context, and ignoring the rather bad disconnect between this supposed right and the sort of rights otherwise present in the Constitution. ("The constitution provides these 100 provisions that together ensure free elections, and these 50 provisions to prevent common abuses of courts and police, and these 200 provisions to balance state and Federal domains of authority, and ... oh, yeah, this one provision protecting a specific hobbyist activity and/or home security system.")

It's as though the National Apple-Growers Association decided that "freedom of the press" also referred to grape and cider presses. Can I prove it doesn't? "I am still awaiting an argument for exclusivity of a printing press right regarding the 1st amendment", you'd say.

 

[WildCat]

Because an 1789-era militia simply was the people and their arms. The state constitutions and BoR drafts say so:





You ask why they phrased it "the people". (I'll leave aside, but not dismiss, Gary Wills' argument that this is a metonym for the state.) Well, why shouldn't they have phrased it that way? In 1789, a state militia was the people. If New Hampshire decided to "call up" the militia, a bunch of individual farmers and traders would show up with their personal flintlocks. If the Federal Government wanted to prevent New Hampshire from calling up a militia, how would they do it? They'd have to disarm the individual people. If you were sitting around in 1789 saying "let's proscribe this", of course you'd phrase it as "the people". "the right of the militia to keep and bear arms"? "The right of the state to maintain armories"? Those would not have addressed the Federalist concern of the time. That's why they didn't phrase it that way.

Still not making sense, since even then "the militia" was a subset of "the people". If they meant "the militia" they would have said "the militia".

 

[newyorkguy]

...The "individual" right? There is scanty evidence that the Founders were concerned about individual hunting or self-defense at all. They did not use 2nd-amendment-like language when discussing individual hunting or self-defense. They were not concerned that the Federal government would interfere with individual self-defense. They drafted an amendment which at no time mentioned any detail associated with individual hunting or self-defense. There was virtually no reason, in 1789, to imagine want the Constitution to protect individual hunting or self-defense against some unspecified Federal interference.

It walks like a collective right, quacks like a collective right, and swims like a collective right...
<much snipped>

Very well-reasoned and quite convincing!

 

[W.D.Clinger]

To get Scalia's reading, you have to accept that "people keep and bear arms" means one thing when Mason is explaining its meaning, but means something different when put down with half of the explanation removed.

...snip...

The "individual" right? There is scanty evidence that the Founders were concerned about individual hunting or self-defense at all. They did not use 2nd-amendment-like language when discussing individual hunting or self-defense.

So you say. It looks to me as though you're just wrong about that.

The "keep and bear arms" language was used to refer to individual rights in several state constitutions adopted before or within living memory of the Second Amendment's adoption:

...every citizen has a right to bear arms in defense of himself and the state.

...the free white men of this State shall have a right to keep and to bear arms for their common defence.

Every citizen has a right to bear arms in defense of himself and the state.

...the free white men of this State shall have a right to keep and to bear arms for their common defence.

...the people have a right to bear arms for the defense of themselves and the State...

...the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Every person has a right to bear arms for the defence of himself and the State.

Every citizen has a right to bear arms, in defence of himself and the State.

... their right to bear arms in defence of themselves and of the State cannot be questioned.

...the people have a right to bear arms for the defence of themselves and the State

...the people have a right to bear arms for the defence of themselves and the state

The right of the people to keep and bear arms shall not be infringed.

Every citizen shall have the right to bear arms in defence of himself and the republic.

Every citizen shall have the right to keep and bear arms in lawful defence of himself or the State.

...the people have a right to bear arms for the defence of themselves and the State

There are several similar examples from the second half of the nineteenth century, continuing on into the twentieth.

 

[newyorkguy]

Is it significant that the state constitutions almost all specify "self-defense" and the U.S. Second Amendment does not?

 

[ben m]

Still not making sense, since even then "the militia" was a subset of "the people". If they meant "the militia" they would have said "the militia".

Read about the Militia Acts of 1792. The "subset" you're talking about was considered every white male age 18-45. If the state calls you, have to show up with your own musket or rifle, bayonet, and ammunition.

Think about your idea more carefully. Imagine the Federal government (in a world without a 2nd amendment) wanted to gradually phase out Rhode Island's ability to raise an armed militia. Can you write the text of a Federal law ordering the peacetime "disarming" of Rhode Island's "militia"? What sense does that even make? The militia is always already disarmed in peacetime, because the rifles and muskets went home with their owners.

That's why the Founders didn't prohibit "disarming of the militia"---because "disarming the militia" doesn't exist as a concept in 1789. ETA: It's like, imagine a future government interested in preventing flash mobs from photographing things. "Flash mobs are a subset of the population. If we pass a law taking cameras away from flash mobs, then there won't be flash mobs with cameras."