How to explain the second amendment

[Al Norris]

And after reading the heller decision I'd be interested in knowing exactly what we gained?

I realize it may not mean much, but after 209 years of avoiding the issue, the Supreme Court finally announced (what most of us already knew), that the Second Amendment guaranteed a pre-existing and individual right.

Scalia also makes reference to "common use".

This was the majorities reading of the 1939 Miller decision:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.​

Assault weapons bans, mag restrictions, gun registration, and byzintine licencing requirements are all held as constitutional.

The Heller Court wrote that reasonable restrictions would be valid. The Court did not define "reasonable." McDonald likened the 2A to the 1A, wherein reasonable has been defined. Byzantine licensing schemes are going to come apart at the seems. Several lawsuits are addressing such things now.

Furthermore, while the Heller Court said that certain restrictions were presumptively constitutional, this also means that certain restrictions may also be presumptively unconstitutional.

All the current civil rights lawsuits are designed to "flesh out" what is and isn't part(s) of the core right. That is, we are currently defining what the Court left undefined.

It looks to me like Heller vs. DC hurt us more than it helped.

Really? I've heard this whine from many folks, after the Heller decision came out.

Without Heller, the anti's would still be singing that old "collective right" tune. They can't do that now. Without Heller, there would be no McDonald, and the States could continue to disarm their citizens at any whim they so desired. We've already seen Chicago immediately change their laws. The Mayor of New York is currently trying to loosen up some of the requirements there. You need to stop and ask yourself, Why?

Heller also codified that states and cities can impose any restriction they see fit, as long as there isn't an out right ban.

No. Heller said no such thing.

To understand, you first have to consider the question that was asked of the Court. Heller was concerned only with handguns, as used in the home for self-defense purposes.

What Heller actually said was that because Americans overwhelmingly choose to use handguns for the core purpose of self-defense, handguns could not be banned:

Under any of the standards of scrutiny that we have ap*plied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

The anti's like to read Heller as saying that handguns are permissible only in the home. That also is not what the Court said.

“[T]he Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open [in Heller].” United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010)(en banc)

Even the 7th Circuit agrees, that keeping a gun at home is only one of the core rights.

That's also how what is called dicta, in Heller, becomes citable precedent.

In short, Heller gives us much to fight with. Include McDonald's incorporation, and we are well on the way to winning our rights back.

 

[carguychris]

Red Eagle, pardon me for combining quotes from different posts.

Scalia also makes referance to "common use". Tenamount to a sporting purposes clause. Assault weapons bans, mag restrictions, gun registration, and byzintine licencing requirements are all held as constitutional... Heller also codified that states and cities can impose any restriction they see fit, as long as there isn't an out right ban.

No, that's really not what it says. You have to understand how the SCOTUS has historically viewed attempts to regulate or infringe upon constitutionally protected rights.

All protected individual rights have limits. To use a common example, the 1A may protect free speech and freedom of the press, but that does not mean you may distribute pornography without limitations or run down the street naked while shouting expletives. The government may impose restrictions on people's exercise of those rights, and those limitations are often based on what is traditionally considered to be acceptable- hence "common use".

However, in order for an individual right to be restricted, the government must prove that the restriction is reasonable and that it serves the greater public good.

 

[Chris_B]

or run down the street naked while shouting expletives.

dammit, then what will I do with the rest of this afternoon??

 

[brickeyee]

here`s how i put it.if i remember my high school english correctly,you will notice that the sentences in the amendment are separated by comma`s.a comma is treated like a period in a sentence.so therefore every sentence that ends with a comma is a separate item.so each individual sentence is part and parcel of the whole paragraph.

Punctuation did not follow the same rules we use now.

Using modern punctuation rules to interpret an old document written long before the modern rules is not going to give you the correct meaning.

 

[Aguila Blanca]

"Back then," the use of commas was not standardized. The comma was used essentially to indicate in a written/printed document where a speaker had paused or would pause when reading the passage. In fact, I believe it has been documented that the several transcriptions of the Bill of Rights sent out to the legislatures of the several states were not all identical in regard to the use of a couple of the commas in the 2nd Amendment.

Which pretty much tells us that we probably shouldn't make TOO big a deal out of it.

 

[RaySendero]

The original Bill of Rights (10) were adopted as a single unit in 1791. They are a collection of mutually reinforcing guarantees of an individual US citizen's rights and of limitations on the federal, state and local governments.

The Second Amendent of this Bill of Rights states:
"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."

"arms" are firearms and other weapons that an indivudual can carry (bear).
That's what they passed - That's what they meant!

Trying to draw a line anywhere else is infringment. That's why they added the last four words!

 

[Hugh Damright]

The original Bill of Rights ... are a collection of mutually reinforcing guarantees of an individual US citizen's rights and of limitations on the federal, state and local governments.

There have been several threads here on this misconception if you'd like to look them up and learn something about it. The USBOR was intended to bind only the US, not state and local governments.

 

[BlueTrain]

If I read the original poster correctly, he believes that the right to keep and bear arms is there so that we can defend ourselves from the militia. Right? Of course, the way the word militia is used these days, I'd have to go along with that idea. However, since I'm past the age of the militia muster, I guess it's irrelevant to me.

 

[zukiphile]

I think the best way to explain why you want the text of the 2d and other amendments observed is to note that you believe in constitutional and limited government, and the 2d Am is one of those limitations.

There are always pragmatic bases for permitting an expansion of government to limit a liberty the expression of which we dislike, which is why being too pragmatic about constitutional rights is no virtue.

Someone's speech, assembly, religion, gun, right against search or private property will at any given time be a problem for public safety. Bending the limits of government to solve small immediate problems makes a larger long-term problem.

But the COTUS is a living document, and we need to interpret it according to the changing circumstances of modern society!

Fine, but the process of interpretation requires fidelity to the text being interpreted. There is no good faith interpretation of "shall not be infringed" that would permit Congress to infringe it at its whim.

 

[Idahoser]

this battle was lost a long time ago. The Constitution has had no power over government since membership in the 'union' became compulsory. When the states' representation was removed there was no longer any pretense of this being a republic.

 

[BlueTrain]

The states are still well represented, though some more than others. You are no doubt aware that congressmen do everything in their power to do things that will benefit their state and district. You may otherwise argue about who the representatives represent.

There is naturally a minor problem here and that is about the representation. Naturally congressmen are supposed to represent everyone in their district, yet sometimes one can't help but think they only represent some of the people. Of course only some of the people voted for them since receiving 100% of the vote is somewhat unusual. But overall, I don't think (this is just my own opinion, understand) that the states all by themselves need to be particularly represented. This union, which some don't care for, is not a commonwealth of independent states or a confederation. That was what we had before the constitution, you may remember. There must be some reason enough people thought so little of the arrangement that the constitution was written.

 

[Idahoser]

the states do not have representation. There are two houses of representatives, one legitimate and the other perverted from what had been the states' representative body in DC.

states would not voluntarily surrender their authority to "The State" as do those "senators" who can buy your vote with your money. When the state legislature elected the senator, the state legilature is who they owed their allegiance to, not some nebulous and impossible to define "people".

The beginning of socialism in America required the subservience of the states, which could not be accomplished against their will, so their will had to be thwarted. 17th Amendment.

And I'll go so far as to let you in on another little secret:

That's what it's going to take if you ever want to see your America again, is to repeal that. First. There is not going to be any permanent improvement in this country until that natural check/balance AGAINST DC is restored.

Do that, or stop whining about this country's condition, you're not really interested in fixing it.

 

[Hugh Damright]

The States do not have representation

I think that Virginia has representation in the Senate, regardless of whether the Virginia Senators are chosen by the Virginia State Legislature or chosen by the people of Virginia. And I don't see how Virginians are "some nebulous and impossible to define "people"".

I don't think ... that the states all by themselves need to be particularly represented. This union, which some don't care for ...

You don't think that states need representation, but it is other people who don't care for this Union?

 

[HiBC]

Those who wrote the Constitution were pretty fine wordsmiths. IMO,if we read the 2nd Ammendment and find a conflict of meaning ,we are probably not choosing the correct word meaning.
I think if we read it right,it sings.
Well regulated dueling pistols,regulating the artillery battery,regulating the 50 cal barrels on a p-51 Mustang,regulating the barrels on a double rifle are all uses of the word "regulated" that a lawyer or judge or legislator may not be familiar with.If Thomas Jefferson ordered a set of duelling pistols,he surely would specify they be well regulated.If I read the 2nd with those contexts in mind,it sings.
I also submit Von Steubens booklet of Regulations,an aid to make Washintons troops proficient with arms.
In the definitions of militia listed above,I think #3 more likely applies.Everybody who can drop their hoe and pick up their rifle.Think of the Swiss,or the Brits preparing for the Germans.
Those in power will assign a meaning to "regulated" that can be interpetted to increase their power.As the Bill of Rights is about limiting powers.The definition of "regulated"
that puts skills and responsibilities in in the hands of the citizen seems more likely,though less comfortable to those consider themselves rulers.
Likewise the word "State"
Those in government might seize the meaning of state to be the government "State" Maybe.But going back to my notion of "What sings?"
Lets try "State" as "State of being".As "The Status of Being Free"

"To sustain the state of being Free,We require a citizenry that can drop what they are doing and take up arms,and be effective with them,so the right of people to keep arms and shoot shall not be infringed

"They wrote it better,but that is how I read it,and it sings.

 

[brickeyee]

The original Bill of Rights (10) were adopted as a single unit in 1791. They are a collection of mutually reinforcing guarantees of an individual US citizen's rights and of limitations on the federal, state and local governments.

No, it ONLY LIMITED the federal government until the 14th amendment was passed extending the protections against the states.

The 14th was then eviscerated by the SCOTUS defining down what "the privileges or immunities of citizens of the United States" consisted of.

The court then responded by using the 'due process clause'

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

to achieve what congress had intended, the extension of federal rights against the states in response to the ongoing mistreatment of the former slaves in the south.

 

[Idahoser]

Here's a really good quick clip of Judge Napolitano if you still think the 17th is unimportant.
http://repealthe17thamendment.blogspot.com/2010/11/judge-napolitano-on-17th-amendment.html

Virginia does NOT have representation in DC. The group of people who vote in VA have a representative, along with the legitimate representative for their district. Think your entire state can hold a 'senator' accountable? I know TN can't.

You represent who can yank your a$$ back home if you vote wrong. Senators are accountable to NOBODY.

 

[BlueTrain]

They all get to serve until the next election, when the whole thing starts all over again. And I didn't know my vote was bought! When do I get my money? Or is that only if I vote for the "right" candidate?

Stop mentioning the Swiss again, unless you like conscription. That's the way it works there.

And if the 2nd admendment was so clear and perfect, why did they immediately start writing more laws about the militia even before 1800? Is the constitution too short? Probably not but it doesn't exist in a vacuum. It exists as a law document (written by lawyers) along with all the other laws already in force and with those passed since then. It was not written to be all things to all men. My reference to other people is to some of the other contributors to this forum, who seem to think the United States is a voluntary association of independent states. I don't like to see it like that. People have fought and died to keep the union--while others did the same to try to break it up.

But tell me again, what part of "my America" is it that I'm not going to see again? Then tell me what socialism is.

 

[Idahoser]

...who seem to think the United States is a voluntary association of independent states. I don't like to see it like that. People have fought and died to keep the union

then you don't like a republic, because that's what it meant. People fought and died to create a state, you cannot preserve a union by force or it stops being a union.

 

[HiBC]

"Stop mentioning the Swiss.."
BlueTrain,
I might have jumped to the wrong conclusion,if so,forgive me,
My gut takes the position you view what I had to say here with disdain.
It seems you have demonstrated that some superior folks should be able to tell other folks to not speak,
And I get the impression you favor firearms laws and regulations.
But,I could be wrong.

"I may not agree with what you have to say,but I will defend to the death your right to say it" Thomas Paine.

 

[RaySendero]

Hugh Damright

RaySendero:
The original Bill of Rights ... are a collection of mutually reinforcing guarantees of an individual US citizen's rights and of limitations on the federal, state and local governments.

There have been several threads here on this misconception if you'd like to look them up and learn something about it. The USBOR was intended to bind only the US, not state and local governments.

No the misconception is that the signers of the BOR would do so knowing that these inalienable rights of the people could be taken away by subordinate governments. I understand some of Jefferson’s and Madison’s discussions prior to ratifying the BOR can be interpreted as such. I believe NOT - You believe what you want.

For instance look up the bill of rights article in encyclopedia britannica. It will also refer to the state governments.