Scope of 2nd Amendment's Questioned

[FearlessFreep]

http://www.washingtonpost.com/wp-dyn/content/article/2006/12/07/AR2006120701001.html

Scope of 2nd Amendment's Questioned
By MATT APUZZO
The Associated Press
Thursday, December 7, 2006; 8:49 PM


WASHINGTON -- In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday that the Second Amendment right to bear arms applies only to militias, not individuals.

The city defended as constitutional its long-standing ban on handguns, a law that some gun opponents have advocated elsewhere. Civil liberties groups and pro-gun organizations say the ban in unconstitutional.

At issue in the case before a federal appeals court is whether the Second Amendment right to "keep and bear arms" applies to all people or only to "a well regulated militia." The Bush administration has endorsed individual gun-ownership rights but the Supreme Court has never settled the issue

 

[Cruentus]

God help us if the Supreme Court ever settles in favor of "militia's" rather the individuals. Banning individual gun ownership is an infringement on civil liberties regardless of which way one argues the 2nd amendment.

 

[Rich Parsons]

Talk about a revolution.

This bothers me.

 

[michaeledward]

There is little chance that this lawsuit will get to the Supreme Court. The Court of Appeals for the District will rule in favor of the plantiffs.

However, the article does raise some interesting questions about that whole 'well regulated militia' part of the Second Amendment. It seems to me that language 'shall not be infringed' has always carried more weight than the language 'well regulated militia'. I've never been able to get a clear understanding as to why people think that certain words in the Amendment mean more, or are more important than other words.

If the United States Government has a standing army, is a well regulated militia a necessity? What are the consequences of that a negative answer to that question?

Interesting, I say.

 

[Blotan Hunka]

From the USDOJ

http://www.usdoj.gov/olc/secondamendment2.htm#2c

A feature of the Second Amendment that distinguishes it from the other rights that the Bill of Rights secures is its prefatory subordinate clause, declaring: "A well regulated Militia, being necessary to the security of a free State, . . . ." Advocates of the collective-right and quasi-collective-right interpretations rely on this declaration, particularly its reference to a well-regulated militia. On their interpretation, the "people" to which the Second Amendment refers is only the "people" in a collective, organized capacity as the state governments, or a small subset of the "people" actively organized by those governments into military bodies. "People" becomes interchangeable with the "State" or its "organized militia."

This argument misunderstands the proper role of such prefatory declarations in interpreting the operative language of a provision. A preface can illuminate operative language but is ultimately subordinate to it and cannot restrict it.

Wholly apart from this interpretive principle, this argument also rests on an incomplete understanding of the preface's language. Although the Amendment's prefatory clause, standing alone, might suggest a collective or possibly quasi-collective right to a modern reader, when its words are read as they were understood at the Founding, the preface is fully consistent with the individual right that the Amendment's operative language sets out. The "Militia" as understood at the Founding was not a select group such as the National Guard of today. It consisted of all able-bodied male citizens. The Second Amendment's preface identifies as a justification for the individual right that a necessary condition for an effective citizen militia, and for the "free State" that it helps to secure, is a citizenry that is privately armed and able to use its private arms.

 

[FearlessFreep]

I think the words that would seem to carry the most weight are 'right of the people', particularly 'the people''.

I tend to see all te Bill Of Rights as a blanket statmenet of 'this is what it meanns to live as 'Free People'

Freedom of the Press should not be conditional on the times we live in, neither should Freedom of Speech, or Freedom to Assemblem of Right to Bear Arms. The Right of the People to Bear Arms was seen as neccessary for maintaining a "Free State". Although it seems as though all thse rights are becoming more and more conditional. Note that all of the other rights are intended to protect the rights of the individuals from the power of the government (as they were born at a time of revolution against an oppressive government). The 2nd Amendment fits the pattern of keeping the State Free from the government.

Some would argue that it's impossible to fight against the US Miltary with small arms, to which I would say that a) that doesn't eliminate the right to be in a position to try should the government go in a direction where that was deemed neccessary and b) take a look to Iraw and what can be done with determination and light weapons against a more powerful military

 

[Blotan Hunka]

Except Iraqs issues are not about military defeat with weapons. We are not loosing militarily. We just cant leave.

Hell they are using weapons to kill more of their own people than any of ours. We lost more troops in one battle of WWII than the entire Iraq conflict.

 

[FearlessFreep]

Except Iraqs issues are not about military defeat with weapons. We are not loosing militarily. We just cant leave.

Well, the point was that, like the Revolutionary War, and like the Soviets in Afghanistan, a group of people with basic weapons can make life really difficult for a larger army.

If you break down Iraq into two pieces, The Invasion and The Occupation. The Invasion went very well. We kicked the crap out of the Iraq military and toppled the government. However occupying and controlling Iraq has proved much more difficult.

But you are right because we really don't want to; we are not trying to oppress the people of Iraq, we are just trying to keep some people there from killing other people there long enough that we can leave and they can get on with living.

 

[Blotan Hunka]

Agreed. Back to the point of your thread here. I dont see this getting too far. There is plenty of precedent already set on this topic. There are many cases where the SC has sided on the individuals right. What we dont have is an outright statement by a supreme court on the matter.

 

[Makalakumu]

Agreed. Back to the point of your thread here. I dont see this getting too far. There is plenty of precedent already set on this topic. There are many cases where the SC has sided on the individuals right. What we dont have is an outright statement by a supreme court on the matter.

It would be nice if the Supreme Court would actually rule on this. Then the law would be crystal clear. When we look at other industrialized countries, our 2nd Amendment is really unique. I would like to see it protected.

 

[michaeledward]

I think the words that would seem to carry the most weight are 'right of the people', particularly 'the people''.

I tend to see all te Bill Of Rights as a blanket statmenet of 'this is what it meanns to live as 'Free People'

Freedom of the Press should not be conditional on the times we live in, neither should Freedom of Speech, or Freedom to Assemblem of Right to Bear Arms. The Right of the People to Bear Arms was seen as neccessary for maintaining a "Free State". Although it seems as though all thse rights are becoming more and more conditional. Note that all of the other rights are intended to protect the rights of the individuals from the power of the government (as they were born at a time of revolution against an oppressive government). The 2nd Amendment fits the pattern of keeping the State Free from the government.

Some would argue that it's impossible to fight against the US Miltary with small arms, to which I would say that a) that doesn't eliminate the right to be in a position to try should the government go in a direction where that was deemed neccessary and b) take a look to Iraw and what can be done with determination and light weapons against a more powerful military

I don't see any of the words in the Amendment carrying more weight, or more importance than any other words.

To compare the First and Second Amendments, in the manner you have, ignores the usage of the first clause in the Second Amendment. Freedom of the Press should not be conditioned because there is not a conditioning clause in the Amendment.

Just compare the introductory clauses of the two Amendments to see the difference.

Congress shall make no law . . . . . .

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

What an amendment may 'seem' to be directing is a distinctly different thing than what it actually says. And whatever 'pattern' may be interpreted into the language, is not relevant when discussing the actual language. Either the Amendment means what it says or it doesn't. If it doesn't mean what it says, then we have a more serious problem. If it does mean what it says, then, that language needs to be considered.

 

[Blotan Hunka]

There is plenty of clarification on its meaning in writings by the framers. The anti's choose to ignore it.

 

[FearlessFreep]

I don't see any of the words in the Amendment carrying more weight, or more importance than any other words.

And that was my point, you left out the words "the people", they matter just as much

 

[5-0 Kenpo]

I don't see any of the words in the Amendment carrying more weight, or more importance than any other words.

To compare the First and Second Amendments, in the manner you have, ignores the usage of the first clause in the Second Amendment. Freedom of the Press should not be conditioned because there is not a conditioning clause in the Amendment.

Just compare the introductory clauses of the two Amendments to see the difference.

Congress shall make no law . . . . . .​

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

What an amendment may 'seem' to be directing is a distinctly different thing than what it actually says. And whatever 'pattern' may be interpreted into the language, is not relevant when discussing the actual language. Either the Amendment means what it says or it doesn't. If it doesn't mean what it says, then we have a more serious problem. If it does mean what it says, then, that language needs to be considered.

The interpretation that I think should be taken is the intentions of the founders. If not, then one could make this argument regarding the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Therefore, individual states should be able to establish their own state religions, as it says "Congress" shall make no law. States can also prohibit any type of speech they choose, prevent them from assembling, and restrict the press. States are not Congress.

It can be shown that the founders intent of the 2nd Amendment was to prevent the oppression of the people by the government. In that context, there should be no firearm that an individual should be restricted from owning.

 

[FearlessFreep]

Disclosure: I do not own a gun nor am I a member of any gun organiation, for or against. I have thought of getting a handgun as an augment to my personal and home/family self-defense, but have opted not to because I have several small children and do not know how to make a gun both practically avalable when needed as well as safe to use, and do not have the time to research that or to do proper training.

 

[Blotan Hunka]

Disclosure: I do not own a gun nor am I a member of any gun organiation, for or against. I have thought of getting a handgun as an augment to my personal and home/family self-defense, but have opted not to because I have several small children and do not know how to make a gun both practically avalable when needed as well as safe to use, and do not have the time to research that or to do proper training.

You carry it whenever possible, even around the house, and lock it up when its not. Thats the only realistic way. Trouble is most people get to inconvenienced to keep it up.

 

[dart68]

How I interpret the the second amendment in my own little mind is that the "free state" is a state of freedom. The second amendment was created to provide a way, by force if necessary, for the "people" to protect themselves from their own government. That includes protecting themselves from state and local governments, not just the feds. How can a "well regulated militia" be any of the armed forces if they're ran by the feds? How can a state National Guard be the "well regulated militia" if its run by the state? A state cannot protect itself against itself. Only the people can protect themselves from their governments.

 

[Andy Moynihan]

It is still a part of United States Code section 198 that the unorganized militia is EVERY MALE CITIZEN between 17 and 45, in addition to any standing force in readiness.

And it is nothing short of farcical to imply that with regard to the 2A, "the people" does not mean individuals in this instance but DOES mean individuals in the EIGHT OTHER TIMES it is used in the LEGAL DOCUMENT.

I'm stone cold sick and tired of this argument that the 2A is not an individual right when this position IS stone cold indefensible, legally, or morally, PERIOD, and there IS nothing more to say about it. So I won't waste any more time.

 

[elder999]

You’ve got to understand what the militia is. In May of 1792, five months after the adoption of the 2nd Amendment, the Militia Act was passed. That act distinguished between the enrolled militia and the organized militia. Before the passing of that act, there was only the enrolled militia, which was the body of all able-bodied men between the ages of 17 and 44, inclusively, and it is that militia to which the 2nd Amendment refers. It couldn’t refer to the organized militia because it didn’t exist yet. The 2nd Amendment was to ensure that this body of citizens is armed and that’s why the Founding Fathers thought to place it in the Bill of Rights. Legally, both militias still exist. . The amendment says the people can both keep and bear arms. It’s usually been construed to mean all the people. The 2nd Amendment came before Federal law created the organized militia what the Founders referred to as the enrolled militia—the body of citizens—were allowed to arm themselves.

The Supreme Court has ruled that the words in the Constitution mean what the Founding Fathers said they meant, and we can’t go changing or amending the Constitution by giving new meanings or new shades of meaning to the words. And, if you think about it, it makes sense; otherwise, our rights really mean nothing. Congress or any other governing body can deny you the right to free speech, freedom of religion, a trial by jury, or whatever else it wanted just by claiming the words now have a new meaning. An oppressive government could change the Constitution without ever having to go through the bothersome ritual of submitting it to us, the people, for our approval. And, in the end, the Constitution and, in particular, the Bill of Rights are there for our protection, not for the benefit of the government or those who run it.

Lastly, I’ll add that we don’t need a 2nd Amendment to keep and bear arms, and ask, does anyone know why?

 

[Andy Moynihan]

Because the right to self defense is a human right, which is acknowledged in the Constitution as the "inalienable right to life, liberty, and the pursuit of happiness". And this shows that they knew this, and the government cannot "give" us rights that are naturally ours by birth.