What Does the Second Amendment Really Say?

[tyr_13]

Easy. Let's rewrite the second, here: "The right to keep and bear arms shall not be infringed because we need a well-regulated militia."

It could be argued that the part after the "because" is no longer true, due to the presence of a US standing army. Therefore, the second amendment is no longer valid.

Or, you could just rewrite the amendment to be more fitting to today's situation, but there is no doubt in my mind as to what the wording means. That's what they wrote because that's what they meant.

Yes, let us rewrite what it says. "The right of the people to keep and bear arms shall not be infringed, we need a well-regulated militia." Yours took out 'the people' and assumed a 'because' instead of a comma.

Either way, your re-writing or mine, leaves us in the same place. It doesn't change the common law or case law that the Amendments rely on, and it still says that bearing arms is a right. Contrary to what you seem to think even your rewording doesn't mean that one must be in a militia for that right either. The only way to get to the point where one couldn't keep arms for self defense would still be to make another Amendment either invalidating self defense or the right to keep and bear arms.

Let me put this another way with another fun example sentence. "The sky is blue, because Jews control the media." Is the sky not actually blue because Jews don't control the media? No.

As for the argument along the lines of 'we don't know why they worded it that way, so they must be dependent,' I don't think that actually follows. For one, they thought that militias were damn important so there was probably drive to put them in there somewhere. They might have left the awkward wording in as part of the draft's list of semi-related issues all mashed together. Hell, look at the images of the draft I linked to for just some of the other awkward wordings. Just because we don't know why doesn't mean your interpretation is evidenced.

In short, it cannot be argued that absent another Amendment the fall of the militias is legal reason to invalidate the right to bear arms. I've asked before for the precedent anything like that in case law and I still haven't been shown one or found one myself.

Understand completely. I almost deferred on replying to you post until I had more time, but I felt bad that you had done so much work. Rest assured that I have put less research into mine and that I appreciate your well researched and reasoned posts.

Thank you, but don't worry about my putting in work. It was my claim and I'm obliged to provide evidence for it.

And I make no assumption that looking into it more has given my reasoning any more validity. Arguments stand or fall on their own regardless of how much foot work someone has put into them. I wish I could find that article that convinced me all those years ago.

I agree that an amendment is a way to change it, but that doesn't get to what the original meant. In the tomato example the rule could be read to mean:

So long as grandmother is alive (or in the house) no tomatoes shall be served.​

or

No tomatoes shall ever be served in this house.​

One emphasizes the first clause while the second emphasizes the second clause. Both positions have support in the original. Why? Because the original statement was unclear as written.

Yes, the original was unclear and if the circumstances have changed that's a good reason to revisit the topic in the proper venue, not simply as some have argued to invalidate it.

While the wording itself is unclear, the context of what and where it is (an Amendment in the Bill of Rights), and when it was along with the legal traditions from which it draws and other documents of the time make me fairly confident that the right to keep and bear arms is and always has been an individual one not only dependent on militia service. It's not the best evidence, but it's (for me) far and away better than 'why didn't they?' and 'the words can mean this' arguments which actually cut both ways.

In the larger context of the gun control debate, I still think it would be better to focus on the things that can be done inside the current legal understanding of the 2nd. Even if the 2nd didn't protect an individual right I'd still be for the same measures as I advocate now. Even if it were a 'State's Rights' issue I'd be against the SAFE act.

 

[GlennB]

Your position is that there is no such thing as human rights?

Evasion noted. I was asking you to define 'human rights'.

 

[Gawdzilla Sama]

Evasion noted. I was asking you to define 'human rights'.

If one believes in "rights" I have to ask them if they believe in "the divine right of kings to rule".

 

[BStrong]

The right to carry a handgun is a basic human right? The idea doesn't repulse me, I do find it puzzling.

I believe that the basic human right is self defense, and a firearm is one of the best tools for the job.

I do know from my own experience that the only situations where I've seen someone go from full attack to full stop is when the K9 comes out, and when the guns come out.

Firearms are easier to store, feed and housebreak.

 

[Old man]

I wouldn't call anything weighing 100lbs a weapon to be borne into combat.

Just because someone can pick it up and carry it a short distance does not mean it's a single person weapon.

WildCat, my point is that it's not an 'arm' at all, just as no other bomb has been considered an 'arm'. I was really addressing the 'omg! nucular weapons!1!!' straw man.

ETA:These bombs were not intended for combat, they were were for destroying dams, bridges, etc.

Also - http://armystrongstories.com/army-stories/soldiers-load-mobility-and-risk#.UzHwSoWhFBQ

A PEO Soldier/AWG study presents that soldiers’ load has increased in the last ten years. The study presents the average combat load in 2001 was about 82 pounds and has grown to about 110 pounds in 2012...

 

[Gawdzilla Sama]

I believe that the basic human right is self defense, and a firearm is one of the best tools for the job.

Define human rights and explain who grants them, please.

And a hand gun rarely defensive, it just adds another layer of offense.

 

[Belz...]

And yet no court has ever noticed that?

It's only one of several possible interpretations, WildCat, not necessarily one I'd put my money on. I've stated several times in the past that I am in favour of gun ownership per se. But it's entirely possible that the courts have never dared challenge the holy of holies of the Bill of Rights, for various reasons.

This thread has gone on a long time, and neither you nor anyone else has provided anything whatsoever to support the claim that self defense wasn't a core right of the 2nd Amendment

Since we cannot prove a negative, isn't it up to you to support the claim that it is ?

or that it was entirely about militia service.

I agree that the interpretation I mentioned is not the only possible one. It's entirely possible that even without the justification enunciated in the Second Amendment, the right to keep and bear arms would still exist. My post from earlier today was simply pointing out that, to me at least, the two clauses are clearly related, something that was being argued against in one of the numerous earlier gun threads.

Evidence has been shown that at the time the people who wrote it did indeed see it as an individual right unconnected to militia service.

Then why did they bother writing that in ?

Do you have anything besides assertions?

Could you possibly debate in a more amicable tone ?

Yes it does, and I like it that way.

As you are so fond of reminding anti-gun people, what you like or dislike is irrelevant.

Perhaps you're more comfortable with the idea that all rights come from the government, but I'm not.

Comfortable or not, that is whence they come. You have no rights if those who have power over you do not give them to you. In any society, rights are arbitrary, malleable and local.

Self defense is a basic human right

Only if the state allows it. I, of course, happen to agree that it should.

Your position is that there is no such thing as human rights?

I believe people have consistently argued that there is no such thing as a natural human right. Rights are a human invention.

And most people who were against the Citizens United decision did so because they didn't want a movie about Hillary Clinton to be shown.

...what ?

My point is that you are misrepresenting your opponents' position. Should you not strive for honesty, if you expect honesty in return ?

 

[Belz...]

Yes, let us rewrite what it says. "The right of the people to keep and bear arms shall not be infringed, we need a well-regulated militia."

That sentence makes little sense. It's two clauses, implying a list of things, but without context.

Yours took out 'the people' and assumed a 'because' instead of a comma.

No, I've made it clear in my previous posts that it's instead of "being".

Either way, your re-writing or mine, leaves us in the same place. It doesn't change the common law or case law that the Amendments rely on, and it still says that bearing arms is a right.

Indeed. However, various readings of the amendment could throw these cases under question.

Contrary to what you seem to think even your rewording doesn't mean that one must be in a militia for that right either.

Indeed. Did I imply that it did ?

"The sky is blue, because Jews control the media." Is the sky not actually blue because Jews don't control the media? No.

Which is why, under this interpretation, I specifically said that it should be re-written.

As far as I'm concerned the second amendment should have been about possession rights, including the right to possess arms.

As for the argument along the lines of 'we don't know why they worded it that way, so they must be dependent,'

Let me stop you, right there: no one said anything along those lines.

 

[Belz...]

WildCat, my point is that it's not an 'arm' at all, just as no other bomb has been considered an 'arm'.

I don't know about that. Dictionaries usually mention that "arms" are weapons, although usually firearms. Is not a nuke a weapon ?

 

[theprestige]

I just don't think you can rely on the hundreds of cases it has taken to define this clause to then assert that it was always clear. Does that make sense?

Completely. My argument was that you can't say the current situation is clearly different from what the authors intended, if it's not clear what the authors intended.

]Because it is in line with your beliefs of what it should be. If the freedom of speech were clarified to protect slander would you be as comfortable? I think not because it goes against what we collectively feel is "right" - the harder questions lie where the collective feeling is less uniform. I think this is one of those areas.

Not really. I am, for example, extremely disgruntled by the evolution of the Commerce Clause over time. However, I remain convinced that the means by which it evolved are generally the good and proper means provided by our system of government. Which is to say, "democracy is the worst form of Government except all those other forms that have been tried from time to time."

No. My interpretation depends on the context. If you ask me what the law is I wouldn't even refer to the amendment itself. If you ask me what the framers meant, again there are better sources. If you ask me what I think the law should be, that would be another different conversation. But, if you ask me what those words mean, as in this thread, I'd say they are unclear, but you can't ignore any of them to get a better idea of what the rest of them mean.

The question put as the topic of this thread is, "What Does the Second Amendment Really Say?"

Is there a context in which you have an interpretation that answers this question?

Exactly. If you look at the amendment as written at that time, without the benefit of the case law and pontification since, such an interpretation has as much support as a nearly unlimited right to keep and bear arms.

Yup. Is that what you think the Amendment really says, though?

Agreed. Completely. But, that principle came via amendment some years after the drafting of the Second Amendment. So, it is clearly not what the words meant at the time of drafting.

I'd say it's clearly different only if we clearly know what the words meant at the time of drafting. Which we don't.

Which I would have no problem with, if we are back to "what would you want". I think that situation would actually lead to more productive regulation, rather than grand standing. Maybe OT. I think more guns should be available to those who are allowed to own guns, only it should be harder to do so and there should be more responsibilities for those who choose to own guns, such as safe storage, for example. Yeah, certainly OT. Sorry.

Well, if you can somehow tie it in to your interpretation of what the Amendment actually says, then it'd be completely on topic.

Hell, I had a completely hypothetical PWD digression into the idea that the Amendment actually says each state must have a militia, and the people of each state have the right to bear all the arms of the infantry, and it was completely on topic.

But I think for that you'd actually have to go out on a limb and let us examine your interpretation. Turnabout is fair play and all that.

 

[newyorkguy]

I believe that the basic human right is self defense, and a firearm is one of the best tools for the job.

If a basic human right is the right to defend yourself -- from physical attack I presume you mean -- where does it come from? Legally. You have the right to defend yourself, who is saying you don't, but is it in the Constitution? Is it in the Constitution that you have the right to bear arms for self defense?

It is in the West Virginia state constitution.

Section 3-22 - A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use. Link

That's unequivocal and as a result West Virginia is in the top five states with per capita gun ownership.

The Massachusetts state constitution is worded differently.

Article XVII - The people have a right to keep and to bear arms for the common defence. Link

Article XXII-Defense of the New York state constitution says only:

The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia. Link

New York and Massachusetts are among the states with the lowest per capita gun ownership. Link

Until very recent history the federal courts recognized the right of states and cities to set their own policy in regards to gun control. Cruikshank said, "The Second Amendment...has no other effect than to restrict the powers of the national government...."

So I do not agree that the Second Amendment confers (or recognizes) any clear right to carry a gun even in places that have laws against it.

 

[tyr_13]

That sentence makes little sense. It's two clauses, implying a list of things, but without context.

Not without context, just not the context we'd assume. Did you read the documents I linked to? That's exactly the type of thing they would do. 'Here are two (or more) vaguely related things that we're going to list with comma in between.'

No, I've made it clear in my previous posts that it's instead of "being".

You're misplacing the 'because' then.

Indeed. However, various readings of the amendment could throw these cases under question.

They'd have to draw support from the same sources as the current reading, so that's unlikely. Again, one cannot simply hand wave all the context, common, and case law surrounding the issue and simply assert that a different reading would change it.

Indeed. Did I imply that it did ?

Maybe not. That's the common argument and I shouldn't assign it to you.

Which is why, under this interpretation, I specifically said that it should be re-written.

As far as I'm concerned the second amendment should have been about possession rights, including the right to possess arms.

That would be a change though, a fairly substantial one. It leaves out the 'bear' part, and that would kill all sorts of ursine jokes.

Let me stop you, right there: no one said anything along those lines.

Have you been reading theses threads? The ambiguous wording is brought up as support for an alternate wording in nearly every one. That's as far as many of the arguments go.

 

[Belz...]

You're misplacing the 'because' then.

No, I'm not. Read the original again. "X being [adjective] for Y, Z shall not be infringed." How do you interpret that to NOT mean that "Z shall not be infringed because X is [adjective] for Y" ?

That would be a change though, a fairly substantial one.

Oh, sure. In fact it would be a totally different amendment. But I don't see anything in the constitution that guarantees the right to own stuff. Does that mean the government can come and take my DVDs ?

Have you been reading theses threads? The ambiguous wording is brought up as support for an alternate wording in nearly every one.

You said: "we don't know why they worded it that way, so they must be dependent", not "the wording is ambiguous, so here's my prefered reading."

 

[tyr_13]

No, I'm not. Read the original again. "X being [adjective] for Y, Z shall not be infringed." How do you interpret that to NOT mean that "Z shall not be infringed because X is [adjective] for Y" ?

When it's "Because x is blank for y, z shall not be infringed." Literally that isn't a difference, contextually it can be.

Oh, sure. In fact it would be a totally different amendment. But I don't see anything in the constitution that guarantees the right to own stuff. Does that mean the government can come and take my DVDs ?

Not without due process. That's part of the 5th Amendment.

You said: "we don't know why they worded it that way, so they must be dependent", not "the wording is ambiguous, so here's my prefered reading."

And the preferred reading is that they're dependent clauses or even that it's a 'because and only for' without other support. The fact that it's ambiguous is not evidence for that reading or any other. That fact doesn't mean that any reading is valid. So when the only thing presented is 'it can be read like this and you can't disprove that's what it says', then yes, they are using the ambiguous wording as evidence at best, and at worst are simply asserting.

 

[AlBell]

So what you're saying is a human right is determined by voting? A "fundamental human right" can swing on a single vote.

Edit - so we can put this gun thing up for a vote, it was your idea, after all.

3/25/14 22:00 EDT running 60/40 for right-to-own even in this hotbed of progressive Dems.

So sure, let's vote.

ETA: As we both know amendments require much more than a vote.

 

[Belz...]

When it's "Because x is blank for y, z shall not be infringed." Literally that isn't a difference, contextually it can be.

I'm sorry, but I don't understand this part of your post at all.

Not without due process. That's part of the 5th Amendment.

Right to possessions is part of the 5th ? Explain that one to me.

And the preferred reading is that they're dependent clauses or even that it's a 'because and only for' without other support.

My point is that it's not "because it's ambiguous" but because people read it that way. You were misrepresenting your opposition.

 

[Old man]

Except that restriction is the very function of an explanatory clause. It tells you why the next part is being said, so that you don't assume it is being said for some unrelated purpose.

Dr. Keith, when I do a Google search for that term, the only site that uses it is this one -
http://english.stackexchange.com/qu...xplanatory-subordinate-clause-to-a-sentence-i

Are you talking about a relative clause?

I was actually thinking more of an introductory clause. Setting the stage for the rest of the sentence. But calling it any type of clause pre-supposes a sentence.

Thanks for addressing this, Dr. Keith, and apologies for taking so long to respond.

Do the 'introductory' clauses in the sentences below restrict the right of the people?

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

A well regulated Militia Medical system, being necessary to the security health of a free State, the right of the people to keep and bear Arms use first aid supplies, shall not be infringed.

 

[tyr_13]

I'm sorry, but I don't understand this part of your post at all.

Word order can indicate emphasis or separation without literally doing either. Reading drafts however, I don't think they were ever that subtle.

Right to possessions is part of the 5th ? Explain that one to me.

You asked if the government could come take your DVDs. Part of the fifth reads"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

So they can't take your property without due process. The right to have property is another assumed right from common and case law, and in the case of the US is again heavily influenced by Enlightenment thinkers. This time is again Locke if I remember correctly. Locke argued (I think) that the right of property arose from the natural right of self, one's body, and one's labor. You were entitled to some of the products of your labor. I know this 'natural rights' underpinning might ruffle some more feathers for some, but as has been said several times it's a moot point.

My point is that it's not "because it's ambiguous" but because people read it that way. You were misrepresenting your opposition.

And they can read it that way because it's ambiguous. Again, this isn't evidence that any given reading is valid. That's not a misrepresentation, it's simply simplifying the argument.

 

[Old man]

You asked if the government could come take your DVDs. Part of the fifth reads"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

So they can't take your property without due process. The right to have property is another assumed right from common and case law, and in the case of the US is again heavily influenced by Enlightenment thinkers. This time is again Locke if I remember correctly. Locke argued (I think) that the right of property arose from the natural right of self, one's body, and one's labor. You were entitled to some of the products of your labor. I know this 'natural rights' underpinning might ruffle some more feathers for some, but as has been said several times it's a moot point...

QFT.

 

[Belz...]

Word order can indicate emphasis or separation without literally doing either.

Yeah, but I continue to point out that the first part of the 2nd amendment isn't there for no reason. If it were irrelevant, it wouldn't be there at all.

You asked if the government could come take your DVDs. Part of the fifth reads"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Gotcha.

And they can read it that way because it's ambiguous. Again, this isn't evidence that any given reading is valid. That's not a misrepresentation, it's simply simplifying the argument.

To the point of misrepresentation, because that's not what anyone is saying.