What Does the Second Amendment Really Say?

[newyorkguy]

newyorkguy tried and failed spectacularly by citing Cruikshank, which turned out to mean the opposite of what he thought it meant because he couldn't or wouldn't read past a semi-colon, perhaps you'll do better.

We've already gone through this.

For context, this whole line of argument [natural law] came about when it was pointed out that SCOTUS in Cruikshank, held "This [the right to keep and bear arms] is not a right granted by the Constitution." The gun rights advocates emphasized that in the next sentence of that decision, Cruikshank held, "Neither is it [the right to keep and bear arms] in any manner dependent upon that instrument for its existence." So it was asked, what is the right dependent on? The answer was natural rights or natural law and citations were supplied of various historical figures writing about it.

It's not about "what newyorkguy thinks" it's about 'what newyorkguy has found.'

Two of the Bill of Rights that have not been "incorporated" are the Second Amendment and the Fifth. The Supreme Court has avoided taking any cases that would require it to rule on the right to keep and bear arms or assemble as an independent militia. Link

 

[Dr. Keith]

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.

 

[Dr. Keith]

Yes, but which of those two is the good one and which is the bad?

I left that for student's own time.

More seriously, you say that the law is vague, but clearly "not the same as the framers laid out". Juxtaposing vagueness with clarity like that seems contradictory.

My assumption is that if they wanted it to be as clear as it is now, through case law, then it would have been a simple matter to write it clearly. Because they didn't, we had to wade through decades of uncertainty and case law to to clarify. The idea that our clarification is exactly what they all meant requires an assumption that they didn't know how to write clearly, which seems absurd given the rest of the document.

In any case, if it was vague then, it can only be different now by gaining clarity through case law and precedent. Which it has. Along with every other clause, amendment, and right in the original document. This is supposed to be a bad thing?

Not at all. 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?

Or, the law is "slightly narrowed by the first clause", but is now clearly different. Which is true enough, but so what? A slight narrowing which expanded as it gained clarity over time. Again, this is a bad thing?

Either way, I don't see much of a problem.

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.

Because they didn't word it strongly enough to mandate a clear ruling to the contrary. So here we are, forced to interpret an (intentionally?) ambiguous clause in the basis of our nation's system of laws, and our ultimate protection from government intrusion (well, our antepenultimate protection, probably). I've given my interpretation. Have you given yours? I'm not sure.

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.

Is your interpretation that the right pertains narrowly to state militia service?

If so, it seems that one plausible reading of the amendment is that the Federal government will not infringe on the right, full stop. The states, then, are free to establish whatever gun control they deem necessary to establish whatever well-regulated militia they deem necessary, free from any federal interference.

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.

California might decide that the state needs no militia, and thus its citizen need not bear arms. No militia, no arms. Texas, meanwhile, might decide that each citizen is a militia unto themselves, and has the right to arm themselves however they see fit, within the bounds of public decency. Vermont, still smarting from the War of 1812, might find some middle ground in requiring every citizen to maintain an assault rifle, but allow them to hunt with it outside of their militia duties.

But that all takes us into gay marriage territory: It's an established principle that rights which cannot be infringed by the Federal government cannot be infringed by the states, either: If it's unconstitutional for the Federal government to ban homosexual unions, it's unconstitutional for California to ban homosexual unions. Same with the right to bear arms. If the feds can't infringe, neither can the states. If we take the two clauses together, then any state that wanted to infringe on the right would have to come up with some convoluted positive claim about their state militia, justifying some relevant infringement of the right to bear arms.

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.

If we're to take the two clauses together, and assume for the sake of argument that the California National Guard meets the requirement of a state militia mandated by the Second Amendment, then I'd say a case could be made that all citizens of the state have the right to bear any arms common to the modern infantryman--notably, assault rifles and hand grenades.

Obviously the actual situation is a lot more bizarre, and a lot more baroque, than that straightforward reading, but what are you going to do? My take is that if you insist on applying the first clause, instead of restricting the right to bear arms, you'd expand the mandate to have state militias, and expand the right to bear arms along with it.

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.

 

[tyr_13]

No worries. I can barely post from my iPad, much less a phone.

Please excuse me if I break your paragraph into parts you find discordant. I'm trying to keep your points together, but I may fail.

No, you broke them up fairly well.

I'd actually be interested in that if you have time when you get back to a computer. I'd rather learn that I was wrong than persist in my ignorance.

I was looking for my history and law books at my family's home but couldn't find them, which means they are probably in one of the many crates of books stacked at my cabin.

I've done a LOT of reading this morning and can't find everything I was talking about, but the Wikipedia article on the Pennsylvania Constitution of 1776 has a few examples. Yes I'm very aware it predates the US Constitution but see also the debates on Pennsylvania ratifying the US Constitution and of course their actual ratification which is almost verbatim what their state constitution said.

XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

This one is more clear with the inclusion of 'therefore' and you might be inclined to point to the semi-colon. However, in image searches of the actual document it became clear that the originals used comma and the semi-colon was added for clarity of the modern reader because at the time they were interchangeable.

What that says is that because people have the right to freedom of speech etc, then the freedom of the press shouldn't be restrained. If the same reading as is being applied to the 2nd Amendment of the US Constitution were used in this construct of grammar then the rights to free speech etc aren't protected and if they should become abridged that the printing press could likewise be restrained. This is obviously not the intention. Clause XIV uses a similar construct.

Speaking of these clauses this one is interesting.

XIII. That the people have a right to bear arms for the defense 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.

Note the use of 'and', and not 'because' or 'only because' or any other construct. We've obviously changed from viewing standing armies as dangerous to liberty, but that doesn't invalidate the rest of what is said there. And again, this document predates the US Constitution and it explicitly ties the right to bear arm to the defense of self. The actual ratification of the US Constitution goes one better and in a separate clause addressing hunting.

Clearly having the right to bear arms for self defense wasn't foreign to the people of the time and is not a modern invention.

I'm sure this has been presented in this thread already, but if you have time to put it together I promise to read it this time!

I don't know if it has or not as these threads all blur together, although this one is one of the more productive ones in my view because it isn't addressing a specific tragedy.

This is the one I wanted my history books for as finding it online is daunting. Keep in mind that it was something like four months of secret meetings, so letters are used heavily. I think there is a copy of Washington's notes somewhere, but hell if I can find it. The Bill of Rights has some.

At any rate there are a couple of earlier drafts of the Bill of rights. I can't find many other justification clauses but the draft of the 'articles' are interesting anyway. Here is what the Article the Fifth says,

A well regulated militia, composed of the body of the Peopel, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Well that's much more clear.

Agreed, people still means "white male land owners", but the first part does appear to limit the people to members, or at least potential members, of a well regulated militia. At least, that meaning is no less plausible than totally disregarding the first part on its face.

Right, it limits it to potential militia members which were at the time adult white land owning males. Through the years we've dropped the 'land owning' and then the 'white' and then the 'males' from the requirements. Whether that leaves 'no one' or 'everyone' (besides children and the unfit) is the question of this thread. However, even limiting it to potential militia members as it was known at the time still leaves us with the same pool today. Non-criminal adults.

I know what I see well supported though evidence. The best evidence? No, but better than next to none.

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.

Well, no. Related clauses are not always dependent.

"My grandmother hates tomatoes, don't put any tomatoes on my sandwich." One would be foolish to argue that because my grandmother is dead, it's therefore alright to put tomatoes on my sandwich.

On that we agree.

I would only add that it doesn't mean it can say nothing. Except that the SCOTUS clearly disagrees with me.

I don't think that anyone, including the Supreme Court, argues that it means nothing.

 

[Dr. Keith]

This would be a much stronger argument if the second clause had used the phrase "the militia" instead of "the people". But it clearly says "the people", which makes your argument extremely tenuous at best.

Which would all make more sense if militias were commonly composed by something other than the people.

eta: also, it would be rather silly to proclaim that the right to keep and bear arms applies to an organized militia since an unarmed militia isn't really a militia at all.

And yet, as rebellious colonist, that is exactly the sort of thinking they may have employed: make sure we are clear that the people will be allowed to use their own weapons when they form up their militias. An unarmed militia sounds like something even the King may have approved of.

 

[newyorkguy]

If I can add my own two cents. In these discussions I have finally come to my own personal conclusion.

I would like the states (and cities) to have the right to enact their own gun laws free of the federal courts telling them what they can and cannot do. I understand gun advocates feel this is unfair -- they want to own guns -- but I believe this a 'greater good' issue.

Currently handguns are all but banned in New York City and have been since 1911 under the Sullivan Act. I would not want to see that changed. The city is a crowded, diverse, often contentious place, and I know the city and police do not think it's a good idea to have large numbers of the public walking around with a loaded handgun. I think they're right. I think the city should have the right to form our own laws in this regard.

 

[Belz...]

Using my fancy english language skills

I don't think that's required. The sentence used "being", which clearly establishes a relationship between the two clauses/propositions.

Example: "A healthy body being necessary for long life, one should eat well."

Obviously the point of eating well is having a healthy body, in this case, no ?

 

[Dr. Keith]

No, you broke them up fairly well.

Thanks.

I was looking for my history and law books at my family's home but couldn't find them, which means they are probably in one of the many crates of books stacked at my cabin.

No worries, you aren't my research assistant and I appreciate the effort.

I've done a LOT of reading this morning and can't find everything I was talking about, but the Wikipedia article on the Pennsylvania Constitution of 1776 has a few examples. Yes I'm very aware it predates the US Constitution but see also the debates on Pennsylvania ratifying the US Constitution and of course their actual ratification which is almost verbatim what their state constitution said.



This one is more clear with the inclusion of 'therefore' and you might be inclined to point to the semi-colon. However, in image searches of the actual document it became clear that the originals used comma and the semi-colon was added for clarity of the modern reader because at the time they were interchangeable.

What that says is that because people have the right to freedom of speech etc, then the freedom of the press shouldn't be restrained. If the same reading as is being applied to the 2nd Amendment of the US Constitution were used in this construct of grammar then the rights to free speech etc aren't protected and if they should become abridged that the printing press could likewise be restrained. This is obviously not the intention. Clause XIV uses a similar construct.

I read that differently. I read that as the first clause laying out a very broad right and the second part clarifying that it also applied in a more narrow context.

Think of the second written as:

The people having the right to keep and bear arms without government infringement, the right to form a well regulated militia is also recognized.​

That lays out the broad right and the narrow application. The narrow application there does not modify the broad right laid out ahead of it. You could say the order of the clauses does not matter, but I think that would be pushing it.

Speaking of these clauses this one is interesting.



Note the use of 'and', and not 'because' or 'only because' or any other construct. We've obviously changed from viewing standing armies as dangerous to liberty, but that doesn't invalidate the rest of what is said there. And again, this document predates the US Constitution and it explicitly ties the right to bear arm to the defense of self. The actual ratification of the US Constitution goes one better and in a separate clause addressing hunting.

Clearly having the right to bear arms for self defense wasn't foreign to the people of the time and is not a modern invention.

And with this example of clarity before them, they went a different way.

I don't know if it has or not as these threads all blur together, although this one is one of the more productive ones in my view because it isn't addressing a specific tragedy.

Agreed. I also like it because it tries to separate the language from the body of law it has spawned.

This is the one I wanted my history books for as finding it online is daunting. Keep in mind that it was something like four months of secret meetings, so letters are used heavily. I think there is a copy of Washington's notes somewhere, but hell if I can find it. The Bill of Rights has some.

At any rate there are a couple of earlier drafts of the Bill of rights. I can't find many other justification clauses but the draft of the 'articles' are interesting anyway. Here is what the Article the Fifth says,



Well that's much more clear.

Indeed.

That may be the best argument that they really weren't skilled at writing clearly and we just got lucky that the rest of the document is legible at all!

Right, it limits it to potential militia members which were at the time adult white land owning males. Through the years we've dropped the 'land owning' and then the 'white' and then the 'males' from the requirements. Whether that leaves 'no one' or 'everyone' (besides children and the unfit) is the question of this thread. However, even limiting it to potential militia members as it was known at the time still leaves us with the same pool today. Non-criminal adults.

Right. Since we have expanded the meaning of "the people" so much over time we have changed what they meant at the time. If they could imagine "everyone" being considered "the people" they may have written it completely differently.

BTW, I don't think the expansion of "the people" is at all bad, just that we have to remember the aristocratic background this document was written in.

I know what I see well supported though evidence. The best evidence? No, but better than next to none.

Indeed.

Well, no. Related clauses are not always dependent.

"My grandmother hates tomatoes, don't put any tomatoes on my sandwich." One would be foolish to argue that because my grandmother is dead, it's therefore alright to put tomatoes on my sandwich.

But, a house rule of "Grandmother hates tomatoes, no tomatoes shall be served in this house" would seem to be questioned after Grandmother passes or even if she were not present for the meal. Do we want to stick to the tradition of no tomatoes or should we consider a change? Surely the rule as stated doesn't require us to tear down the house in order to serve tomatoes.

I don't think that anyone, including the Supreme Court, argues that it means nothing.

I think the distinction between "nothing" and "the meaning given to the first part" by some commenters is rather thin.

 

[Belz...]

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

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.

 

[Belz...]

They were born with them, and their government promptly stripped them away.

Ridiculous. The very definition of rights makes it impossible to be born with them. They are given by one's society.

 

[RenaissanceBiker]

I don't think that's required. The sentence used "being", which clearly establishes a relationship between the two clauses/propositions.

Example: "A healthy body being necessary for long life, one should eat well."

Obviously the point of eating well is having a healthy body, in this case, no ?

No. The point of eating well is to have a long life.

 

[Belz...]

Suppose another amendment read:

"A well-educated Congress being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."

Would anybody interpret that as saying that only members of Congress could keep and read books?

No, but I would interpret that as saying that the reason why it shall not be infringed is in order to have a well-educated congress. If you eliminate congress as an entity, would the clause still apply ? Or would a re-writing be in order ?

 

[Belz...]

No. The point of eating well is to have a long life.

That's a valid interpretation as well, but in both cases the second clause is dependent upon the first.

 

[tyr_13]

A good post, I'm just going to address this part before I lay down for a bit. Reading all those 'f' for 's' documents has given me a headache...

But, a house rule of "Grandmother hates tomatoes, no tomatoes shall be served in this house" would seem to be questioned after Grandmother passes or even if she were not present for the meal. Do we want to stick to the tradition of no tomatoes or should we consider a change? Surely the rule as stated doesn't require us to tear down the house in order to serve tomatoes.

This is true. There is a clear way to address the issue of arms or tomatoes without tearing down the house. If the militia thing has changed an Amendment is the clear legal way to say it has. It probably hasn't because most on one in the house likes tomatoes anyway and they keep misspelling it. Ftupid fhitheadf. What was I saying? I'm going to lay down...

 

[Belz...]

When was there ever a right to drink?

The second amendment should read: "People have a right to do whatever they want, so long as it doesn't cause prejudice to others.", and then they should have defined prejudice in the preamble or further in the amendment. That way your right to keep and bear arms would be intact, but you'd also have a right to drink, drive a car, etc.

Of course, the second clause of the sentence allows the rights to be restricted based on potential harm, etc.

That's what I come up with about 20 seconds of thinking, so you might find some flaw, there.

 

[Belz...]

Gotta love that Rule of So!.

It's called "Belz...'s First Law of Non-Sequiturs."

 

[WildCat]

Sigh.
http://www.youtube.com/watch?v=n4NZmPlAGBQ
Starting at minute 4:30.

ETA: http://en.citizendium.org/wiki/W54_(nuclear_weapon)

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]

We've already gone through this.



It's not about "what newyorkguy thinks" it's about 'what newyorkguy has found.'

And what have you found?

"Neither is it [the right to keep and bear arms] in any manner dependent upon that instrument for its existence."

You found that the right to keep and bear arms exists.

 

[WildCat]

If I can add my own two cents. In these discussions I have finally come to my own personal conclusion.

I would like the states (and cities) to have the right to enact their own gun laws free of the federal courts telling them what they can and cannot do. I understand gun advocates feel this is unfair -- they want to own guns -- but I believe this a 'greater good' issue.

Currently handguns are all but banned in New York City and have been since 1911 under the Sullivan Act. I would not want to see that changed. The city is a crowded, diverse, often contentious place, and I know the city and police do not think it's a good idea to have large numbers of the public walking around with a loaded handgun. I think they're right. I think the city should have the right to form our own laws in this regard.

Yes, we know you think that NYC should be exempt from the US Constitution.

Sorry, it doesn't work that way as you will find out in due course.

 

[newyorkguy]

And what have you found?

"Neither is it [the right to keep and bear arms] in any manner dependent upon that instrument for its existence."

You found that the right to keep and bear arms exists.

The right to bear arms for self defense was incorporated into some state constitutions. But not all. So yes the right existed in some states and not others.

Currently handguns are all but banned in New York City and have been since 1911 under the Sullivan Act.