My interpretation of the Second Amendment.

[dahermit]

"Can someone provide for me an example of a well-regulated militia participating in the security of a free State in modern times? How about a "militia" that did not fantasize about destroying a unit of government? The language of the 2nd Amendment no longer applies. The State provides for us a well-funded security apparatus. "

What amendment that has been added to the Constitution has nullified the Second Amendment? I must have missed that when reading the Constitution here on my desk.

 

[AlongCameJones]

Saying the MILITIA is obsolete means a total trust of the federal government.

 

[dahermit]

It appears to me that the founders realized that "a well regulated militia" necessary to the security of a free state would be under control of the government. In order to guard against tyranny, "the right of the people to keep and bear arms shall not be infringed" would guarantee the people some recourse to keep the government in line with the will of the people.

It would be difficult for the militia to "keep the government in line" when according to Article 1, Section 8 of the Constitution, Congress is charged with appointing the militia's officers. Consider the order: "Stand down, stack arms." in the event that the government was in conflict with the people.

 

[Frank Ettin]

My interpretation of the Second Amendment....

I hate to break it to you, but your interpretation of the Second Amendment doesn't matter. What matters is how the courts interpret and apply it.

In real life in the real world, the the legal system decides, through judicial process, disputes, disagreements, controversies, or legal questions. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the the issues brought to court for resolution. While the parties may argue what the law is that is applicable to the case, it's up to the court, in the exercise of its judicial function to decide what law actually does apply and how it applies to the facts to decide the outcome. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177), "...It is emphatically the province and duty of the judicial department to say what the law is....."

So discussing personal interpretations of law might be entertaining, it doesn't help one understand what the law is, how it works, or how it might apply to resolve a controversy. To do that we study and discuss how courts have dealt with the matter, and related matters. And we can also discuss how courts might be likely to deal with similar matter; but when we do that we need to be able to support our hypotheses with reference to precedent.

In the United States Constitution itself the Founding Fathers gave the federal courts the authority to decide what the Constitution means and how it applies (Constitution of the United States, Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...

Judicial power is:

1. ...the power “of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.

   
   
2. and

   ...the right to determine actual controversies arising between diverse litigants, duly instituted in courts....

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers; and of the 55 framers of the Constitution, 32 were lawyers.

What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

So, as the Founding Fathers provided in the Constitution, if there is disagreement about how the Constitution applies to the circumstances of a particular case, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

....It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.....

.

See also Madison in Federalist No. 39:

....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....

And Hamilton in Federalist No. 78:

.......If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ....

.

The U. S. Supreme Court has been deciding cases arising under the Constitution for over two hundred years. Its decisions in those cases affect the lives and property of real people in the real world. And those decision of the U. S.Supreme Court are also used by the lower courts in deciding cases brought before them.

The U. S. Supreme Court has consistently ruled that rights protected by the Constitution are not absolute and that under the correct circumstances may be regulated.

As the Supreme Court said in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81 (1943), at 110:

… See for example Cox v. New Hampshire 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396, and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But that merely illustrates that the rights with which we are dealing are not absolutes. …

As further illustration of this fundamental principle —

1. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031(1942), at 571-572:

   …Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem …

   ”
   
   
2. In Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396 (U. S. Supreme Court, 1941) the Supreme Court upheld as constitutional a municipal ordinance which burdened the exercise of a right protected under the First Amendment by requiring a permit, for which a fee was charged, to hold a parade of procession on the streets was valid and enforceable.
   
   
3. In Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court upheld a Colorado law which restricted rights protected under the First Amendment by restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility.
   
   
4. In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), at 629 (emphasis added):

   ...our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement….

In all such cases the Court analyzes the nature and significance of the right, the nature and extent of the the burden, and the importance of the governmental interests furthered by the imposition of the burden as part of the process of deciding whether a particular law regulating a right protected by the Constitution is, or is not, constitutionally permissible.

Reality is what happens in real life in the real world. There are over 1.3 million lawyers in the U. S. There are something on the order of 30,000 judges in various state courts and about 1,700 federal court judges. Something well over a million cases are filed each year in the state and federal trial courts. Decisions affecting the lives and property of real people are being made every day in that system.

 

[AlongCameJones]

Gun Owners of America does regard the 2nd A as an absolute.

Outside of the 2nd A, I personally regard being armed for self-preservation as an inalienable and natural human right bestowed onto man by his creator which many man-made governments worldwide fail to acknowledge. No statesmanship entity over the entire human history understood this right so clearly as did America's Founding Fathers. Our Constitution, and the laws of some of the several States following Our Constitution, are the only legal entities in the world, to my knowledge, that recognize this natural creator-given right in writing.

 

[44 AMP]

"Shall not be infringed." means shall not be violated.(period) It doesn't say "shall not be infringed BY (whomever)".

I agree, it only says "shall not be infringed."

It doesn't matter "who" or "what" the forbidden infringer is be it the federal government, any of the several States, any local jurisdiction, any foreign nation, any alien from another planet, any animal, any god or deity, any church, any institution, any person, any business or any other entity in this world or universe whatsoever.

This is a leap I just cannot make. At the time of its conception and writing, the 2nd Amendment applied only to the UNITED STATES Federal Government. And, it was that way for some time after.

Note that the individual states have their own constitutions and their own versions of the 2nd Amendment. Sometimes the language is very close to what is in the Federal Constitution, sometimes it differs a bit but expresses similar ideals.

I would also point out that, while I don't know much about aliens, gods or deities, I do know something about people, businesses and private property rights, and the 2nd Amendment's protection from infringement of our rights by the Federal Government does not apply to private property. A business open to the public is its own specific situation, and there are laws that cover that.

This is an example of the long established concepts of "my house, my rules" and "your right to swing your fist ends at my nose".

 

[Aguila Blanca]

Note that the individual states have their own constitutions and their own versions of the 2nd Amendment. Sometimes the language is very close to what is in the Federal Constitution, sometimes it differs a bit but expresses similar ideals.

And sometimes it differs quite a bit. I have always found it extremely ironic that the state constitution of Massachusetts, the birthplace of the American Revolution, does NOT address an individual right to keep and bear arms.

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

It was written that way in 1780 and it hasn't changed since then.

Six states have no provision whatsoever for the right to keep and bear arms: California, Iowa, Maryland, Minnesota, New Jersey, and New York.

https://gun-control.procon.org/state-constitutional-right-to-bear-arms-2/

 

[Frank Ettin]

Gun Owners of America does regard the 2nd A as an absolute….

So what?

In real life in the real world law means what the courts say it means — and courts demonstrate what law means and how it applies by the ways in which they use it to decide cases and controversies brought to them for resolution. And those decisions affect the real lives of real people.

 

[AlongCameJones]

If I were a judge in any court of law including SCOTUS on American soil, I would rule upon my interpretation of the 2nd A as I have done in this thread in regards to any firearms possession and carrying matters in my jurisdiction.

Many federal laws are imposed against the States already and some federal judges have incorporated the US Constitution against the several States in some regards. I have no complaints whenever federal authorities shove gun rights down the throats of lower jurisdictions across the land. I have no complaints whenever states and other jurisdictions shove gun rights down the throats of landowners, employers and private businesses. Texas has prohibited landlords from banning tenants' guns on their rented properties.

I would rather have the government force me to own a gun than tell me I can't have one.

 

[Frank Ettin]

If I were a judge in any court of law including SCOTUS on American soil, I would rule upon my interpretation of the 2nd A as I have done in this thread ...

Except you're not a judge, and there's no reason to care how you would rule.

Understanding law is about understanding how courts interpret and apply law to decide controversies. Blathering about one's personal beliefs about what a law means or how it applies won't help.

 

[Aguila Blanca]

Understanding law is about understanding how courts interpret and apply law to decide controversies. Blathering about one's personal beliefs about what a law means or how it applies won't help.

I agree -- and I disagree.

I certainly agree that what matters in the law is what the courts say the laws mean, not what you or I or other members of this forum think the laws mean. And "blathering" accomplishes nothing.

That doesn't mean, however, that we are not allowed to think the judges may be wrong in their rulings. I'm sure I have mentioned before (and I'm sure you have beaten me up for it before) that I think the "shall not be infringed" language in the 2A should be interpreted as an absolute prohibition on any and all regulation of the right to keep and bear arms. The 2A doesn't say that the RKBA shall not be "unreasonably" infringed -- it says the right SHALL NOT BE infringed.

And I don't have to agree with the precedent that because other rights in the Bill of Rights have historically been subject to reasonable regulation, we must therefore accept that the 2nd Amendment must likewise be subject to "reasonable" regulation. The 2A language does not leave it open to "reasonableness." It IS an absolute prohibition. The other enumerated rights in the Bill of Rights don't include such an absolute prohibition.

But -- that's not what Justice Scalia wrote in the majority decision in Heller, so we are stuck with reasonable regulation, and years of arguing in courts of various levels regarding what's reasonable and what's not.

That doesn't mean we shouldn't discuss it. But we should discuss it intelligently, and constructively. In the end, the role of judges is to interpret and apply laws. If we don't like the way judges are interpreting laws, we have the option of petitioning our legislators to change the laws. We can't do that by "blathering" but we might be able to do it with sufficient intelligent discourse. I've done it twice. Decades ago, I was directly involved in petitioning my state's legislature to repeal a stupid law that had been used only twice in 80 years -- and in the one case that went to court it became clear that neither the police nor the prosecutor had any idea what the law actually said.

The law was repealed.

More recently, I took on my home town's government over a poorly worded (and, according to the chief of police, unenforceable) town ordinance. That one directly affected my right to carry, so it was personal. I didn't succeed in having the ordinance repealed, but I did get it revised so that I am now not breaking the law if I wear a gun when I walk out to my mailbox.

It can be done. It's not easy, and it's not instant. It took me two years and it cost me money to get the ordinance changed. I had to hire a gun rights attorney because the town politicians ignored me when I approached them directly. We didn't get any action until we had a lawsuit drawn up and ready to file, and the town attorney finally admitted to the mayor that if they didn't do something they would lose in court.

But idle chatter on this or any forum isn't constructive. What matters is intelligent, informed, civil, focused pressure being applied to key legislators.

 

[44 AMP]

I have no complaints whenever states and other jurisdictions shove gun rights down the throats of landowners, employers and private businesses.

I'm glad you don't have any complaints. Being the kind of person I am, I object to anything being shoved down my throat, and that includes things I actually like. It's the "shoved down my throat" part I don't care for.

It makes me choke....
Particularly when its govt shoving your rights down my throat and you're fine with that.

Do you think your right to keep and bear arms trumps my right to say you can't, on MY property? Are you ok with the govt shoving your point of view down my throat on that issue?

Always remember that the power of government to say "you may not" is also the power to say "you must!"

And if its ok to shove something you approve of down my throat then isn't it my right to shove what I approve of, down yours??

I don't agree with that philosophy, no matter what subject it is applied to, or where I stand on it.

The 2nd Amendment was the way our Founders told the Federal Government that is did not have the power in that area. The other Amendments say what the government doesn't have the authority to do in other areas.

 

[Tom Servo]

Can someone provide for me an example of a well-regulated militia participating in the security of a free State in modern times?

Sure. I'm a trucker, and I ran relief runs into east Texas right after hurricane Harvey. Local law enforcement were spread thin on the interstates, and there were local militias to guide us on the state routes. There was one that received some notoriety for closing ranks around a Cambodian immigrant community and protecting them from looting. I had three armed guys escort me to the Miller brewery.

We didn't have centralized police forces until the late 19th century. Prior to that, most towns organized and "regulated" their militias to provide law enforcement. In this case, "regulated" meant "well ordered." Able-bodied men were expected to maintain rifles and ammunition, and they'd often be called to muster for inspection.

How about a "militia" that did not fantasize about destroying a unit of government? The language of the 2nd Amendment no longer applies. The State provides for us a well-funded security apparatus.

It sounds like you might not have spent much time in rural America. Militias are still relevant in places where the police response time can be measured in hours. You don't hear about them because they're benevolent and generally don't get involved in violence of any sort.

As for the State...well, the whole idea of an armed citizenry is that the State doesn't get a monopoly on force. Bad things follow. The most recent, glaring example is the situation in Venezuela.

Just because folks in the suburbs can count on a regular police presence doesn't mean the language or intent of the 2nd Amendment are in any way outdated.

 

[zukiphile]

Outside of the 2nd A, I personally regard being armed for self-preservation as an inalienable and natural human right bestowed onto man by his creator which many man-made governments worldwide fail to acknowledge.

Our creator may have given it to us, but he also endowed us with a flawed nature that inclines us to disregard of the rights of others.

That doesn't mean we shouldn't discuss it. But we should discuss it intelligently, and constructively. In the end, the role of judges is to interpret and apply laws. If we don't like the way judges are interpreting laws, we have the option of petitioning our legislators to change the laws. We can't do that by "blathering" but we might be able to do it with sufficient intelligent discourse. I've done it twice.

Robust public discourse isn't a sufficient condition for that kind of change, but it is necessary. Your absolutist position on shall not be infringed isn't a list of case citations. I happy to provide a case to a layman who might find it interesting on a point, but present caselaw contrary to the position of most laymen, and you may get a "So? It should be different". They may underappreciate the task of making it different, but that doesn't make the desire for change immaterial.

An overton window that finds that your position doesn't matter because a judge didn't write it risks being a merely procedural point. That point isn't directly pertinent to laymen developing an understanding of how laws do work and how they should work. That element has a moral component people need to develop. Laymen can express compelling ideas about the text of the COTUS, and professionals specifically tasked with resolution of constitutional disputes can do a terrible job of it. Holmes upholding forced sterilization in Buck ("Three generations of imbeciles are enough") or the blather of the minority in Citizens United should disabuse us of the idea of law as a bloodless and merely technical task.

 

[Aguila Blanca]

Robust public discourse isn't a sufficient condition for that kind of change, but it is necessary. Your absolutist position on shall not be infringed isn't a list of case citations. I happy to provide a case to a layman who might find it interesting on a point, but present caselaw contrary to the position of most laymen, and you may get a "So? It should be different". They may underappreciate the task of making it different, but that doesn't make the desire for change immaterial.

I am very aware that my opinion regarding the absolutist nature of the 2A is my opinion. I stated in that same post that the majority opinion in Heller says otherwise and that we are stuck with that unless/until something changes.

That said -- if we want to see some change in the recalcitrant states, us ranting about it on Internet forums isn't likely to bring about change. What politicians respond to is the smell of votes, so the answer (IMHO) lies in a concerted and coordinated effort to apply political (votes!) pressure on key politicians.

That's not a slam dunk, and some politicians are immune. I know that. I live in a blue state. My U.S. senators and my U.S. representative are all Democrats, and they get reelected by such overwhelming margins in every election that I know it's useless to even approach them with a pro-gun (or even a not so anti-gun) proposal. The same applies to my state legislators. But as more and more states turn to permitless carry, the hard-core anti-gun states are finding themselves in a shrinking minority. If the citizens of other states that are still potentially open to change keep the pressure on their legislators, eventually the few really hard-core states may find themselves so outnumbered that they give up.

The other approach is through the courts, but that requires us to recognize that many judges, at both the state and federal level, are extremely anti-gun. So cases have to be chosen carefully, and handled by competent attorneys. As the attorney who represented me in my fight against the town ordinance said, "Bad cases make bad law." For you non-lawyers who don't get that, it doesn't mean that a bad case changes the law. What it means is that a bad case that results in a loss may establish a binding precedent, which makes it more difficult to overcome a bad law than if a good case were to be brought with no bad precedents to overcome.

In other words -- pick your battles.

The New York State Rifle and Pistol Association case is one to watch and, if I remember correctly, it's going to be argued this week. We should all pay attention to it, even if we don't live in New York.

 

[Jim Watson]

MY interpretation of the second amendment is that the founding fathers thought it necessary to protect the states against the central government.
I think the use of personal firearms for sport, subsistence, and self defense was so ordinary as to not need any specific mention.

I recall a brief item in American Rifleman years ago.
On December 8, 1941, Governor Poindexter of the Territory of Hawaii called out the unorganized militia. All able bodied men were to report with whatever personal weapon they had. They would be assigned ROTC cadets as officers and dig in on the beaches.
The hope was that the Japanese landing forces would take long enough to slaughter them for the regulars to come up.
Personal weapons did not necessarily mean firearms; there was a cook with his cleaver and a traveler armed only with a tightly furled British umbrella.

 

[TomNJVA]

In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), at 629 (emphasis added):
Quote:
...our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement….

This is an interesting quote. The 2nd Amendment in our Bill of Rights delineates our right to keep and bear arms, yet exercising this right does indeed inhibit our freedom to "travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement..." Mere possession of a firearm (keeping and bearing) while crossing into several states and needing to stay a night can land one in jail unless one has a permit to do so, which the states will not issue. That's quite a burden.

Does this argument bear any validity?

 

[Aguila Blanca]

Fresh article on the NYSRPA case at the Supreme Court -- in case anyone needs a refresher.

https://apnews.com/article/us-supre...gun-politics-10145dcf18c16614922e5b5d73907eeb

 

[44 AMP]

Does this argument bear any validity?

While it resonates well with a lot of us, its not really a valid argument on several levels.

The first is that court decisions are mostly very narrow in scope, and apply ONLY to the case at hand, directly. IT's other people who take them as broad blanket coverage for what they want to do.

You and I are free to travel throughout the length and breadth of this land without restriction.....provided we do it on foot, and unarmed. Any and everything else involves restrictions and limitations of varying degree and today its a real mess of requirements that would astound our Founders.

Took a couple hundred years to screw things up as badly as we are today, but we did get here....

 

[dahermit]

MY interpretation of the second amendment is that the founding fathers thought it necessary to protect the states against the central government.
I think the use of personal firearms for sport, subsistence, and self defense was so ordinary as to not need any specific mention.

I recall a brief item in American Rifleman years ago.
On December 8, 1941, Governor Poindexter of the Territory of Hawaii called out the unorganized militia. All able bodied men were to report with whatever personal weapon they had. They would be assigned ROTC cadets as officers and dig in on the beaches.
The hope was that the Japanese landing forces would take long enough to slaughter them for the regulars to come up.
Personal weapons did not necessarily mean firearms; there was a cook with his cleaver and a traveler armed only with a tightly furled British umbrella.

How can the states use their militias to "protect the states against the central government" when its officers (who give the orders), are appointed by that central government (Article 1 Section 8 of the Constitution)?