...since the 18th century?

Re-read my post, and you will find that I am saying that the Second Amendment is a broad protection of the right to keep and bear arms, whether interpreted by 18th Century standards or 21st Century standards. I also noted that arms are pretty regulated at present, despite that 'shall not be infringed' verbiage.

Villager, I know that you and I have long differed on the meaning and the importance of the Second Amendment. I'm not really holding my breath hoping that you will change your views, but I wanted to make this OP to counter some of the most extreme calls (from others here at DU - I don't recall seeing any posts of yours that I would classify as extreme) for bans and Unconstitutional restrictions on our rights. If you see other holes in my logic, I'll gladly hear you out. That's what a discussion board is for.



-app

Rare as it is in this particular debate!

Also shocked not to be considered an "extremist," since it seems the dialectic here trends toward calling any sensible regulation "extreme."

I do believe in an outright ban on weapons designed solely to kill humans (don't tell me you need a 100-round clip to shred deer in the woods...) And no, the Founding Fathers did not anticipate weapons of war in crowded urban areas...

However, hunting rifles, pistols, etc., can all stay -- though amassing them at alarming rates tends to be a red flag, certainly of a psychological state, if not some impending outright danger to the community...

cheers!

Having been a child of the Cold War, I found the disintegration of the Warsaw Pact and Soviet Bloc to be a fascinating piece of history that we have lived through. That, plus the robustness of the firearm itself, has led me to collect more than one Kalashnikov-pattern rifle, and yes, some 30-round magazines and even one drum that holds 75 rounds. The most dramatic thing ever done with these rifles and magazines has been to shoot ice-block targets (visually compelling when hit, yet less polluting than shooting cans of shaving cream or other aerosols as some choose to do for reactive targets).

I intend to remain peaceable throughout my life, and hope that we Democrats can solve problems through rational discourse and collective action.

You & I disagree on this issue, but I know that we agree on others. I have also seen your posts on other topics and if I recall correctly, we agree on free speech, universal healthcare, environmental quality & preservation, marriage equality & gay rights, economic populism, and an end to the war on (some) drugs, to name just a few. Even if you & I don't work together on RKBA issues, I am glad to work with you on any of the others where we do share a value.

-app

...which would appear to be most issues.

And here's to actually agreeing to disagree -- rather than verbally firebombing each other ! -- on that certain particular issue where we don't!

More to the point, despite what people may think, we do in fact have a "well regulated militia." We simply call it the National Guard these days.

After conducting an extensive review of the Second Amendment text and historical record, Scalia concluded that the individual right interpretation is supported by (1) the historical record; (2) the amendment's drafting history; and (3) interpretations of the amendment by scholars, courts, and legislators through the late nineteenth century (Id., at 2802-2812).

Operative Clause. In Scalia's view, the text and history of the amendment's operative clause (i.e., “the right of the people to keep and bear Arms, shall not be infringed”) is controlling. “The people” refers to all members of the political community, not an unspecified subset, such as the militia; the phrase to “keep and bear arms” means to have weapons and carry them, and not just in a military context; and “the right of the people” refers to a preexisting right. Scalia reasons that these textual elements show that the amendment “guarantee(s) the individual right to possess and carry weapons in case of confrontation,” and that the amendment's text implicitly recognizes the preexistence of the right and declares only that it “shall not be infringed” (Id., at 2790-2797). Congress merely codified a widely recognized right; it did not create a new right (Id., at 2797).

Prefatory Clause. According to Scalia, the prefatory clause (“well regulated Militia, being necessary to the security of a free State”) comports with the meaning of the operative clause and refers to a well-trained citizen militia as being necessary to deny Congress the power to abridge the individual right to keep and bear arms. And while the reason for codifying the prefatory clause “was to ensure the preservation of a

well-regulated militia, this does not suggest that preserving the militia was the only reason Americans valued the right to bear arms; most undoubtedly thought it even more important for self-defense and hunting” (Id., at 2801).

http://www.cga.ct.gov/2008/rpt/2008-R-0578.htm

He was joined by Justices Alito, Kennedy, Roberts, and Thomas.'

n/t

...of Second Amendment text and historical record, but he laughs at reading the healthcare bill that he is supposed to adjudicate.

That certainly reaffirms my opinion of his legal integrity.

I disagree with Scalia on healthcare, but am closer to his Second Amendment interpretation in Heller, as well as his First Amendment stance in Texas vs Johnson. That's life when nine unelected justices get to have basically a final say on what is Constitutional: strange bedfellows sometimes.

-app

He was joined by Justices Alito, Kennedy, Roberts, and Thomas.'

P.S., I disagree with the opinion, but I appreciate your willingness to listen, and appreciate. Strange bedfellows indeed!

Scalia knows what Thomas Jefferson was undoubtedly thinking?

He was joined by Justices Alito, Kennedy, Roberts, and Thomas.'

It is old and outdated. Attempts to shoehorn it into modern American society is, to me. somewhat laughable.

There was an article in the NYT a few months ago that talked about how emerging democracies in the rest of the world are no longer looking to our U.S. Constitution as a model for their own. They find it too arbitrary and inflexible for their own purposes. They have women's rights woven into their new constitutions and we can't even MENTION them in ours! What an outrage!

Have you even LOOKED at other constitutions in these countries to see what they are doing?

We think that somehow we are the end all and be all of democracy and other countries are just abandoning our own constitution as unworkable for their purposes. They look beyond us. And they are right to do so.

We are woefully out of date and out of step with modernity. Time to step up.

But we won't. We keep having these dreary conversations on this 18th century document that we can't make work...sad...

Have fun and good luck to you.

Go wild yourself. The American people have been doing this, all the while the rest of the world is passing us by as a democratic constitutional government they want to be like.

Isn't that interesting? It used to be, years ago, that emerging democracies couldn't WAIT to have our constitutions. Now you couldn't peddle it to them at a discount!

Why is that? Do you have an answer?

as a democratic constitutional government they want to be like?

has pointed out and was reported in the NYT a few months back. She felt it was a lack on inclusiveness and some observers were quoted as saying it was inflexible and old.

The interpretation of the second amendment is, to me. a joke. A modern joke. Perhaps another modern constitutional democracy has one, but I don't know about it. Why is that? If it is so wonderful and such a bulwark against tyranny why haven't the nations of the world who god knows have seen worse tyranny than ours, written it into THEIR constitutions?

about other nation's constitutions perhaps you would be better served by going on their websites and straight out asking them.

Has not every nation, at one time or another, been made the butt of jokes?

If those nations are laughing at us, in the face of the Colorado tragedy then, I question their civility.

I don't know whether other nations are laughing or not. But certainly they are shaking their heads, wondering why the American people put up with such slaughter in their public places again and again and again...

You asked him what he would say. He told you. Then you told him you didn't need his advice.

This is why we can't have nice things....

that was fine. Today that is different. Article 5 is a nice 19th and early to mid 20th century application, but not for today. Oh, I know you love and revere the 18th century and it is lovely for you to do so.

However, we live in today's world, do we not? There is a big world out there and we aren't so special any more, really. Other people have ideas about democracy and freedom, too. They have moved on and we have not. Women have rights written right into their constitutions. Why don't we? Why does it take an effing amendment to the Constitution to require this? It shouldn't be so hard.

I'm not even certain what the word "unworkable" means in this context. How is our Constitution NOT working?

And I personally prefer a Constitution that spells out negative liberties (things the Government cannot do to/for you) rather than positive ones (the Government must do things to/for you). I'm a firm believer in the concept that less government equals more freedom.

And finally, how in the world could you possibly "...know (I) love and revere the 18th century..."? I'm a 21st Century guy all the way, no desire to live in a pre-computer age society, thank you very much.

Because they are used to power being held by the state, NOT the individual.

How out of touch WE really are? Yeah, WE are so out of touch with our Constitution that is over 200 years old, with its rights and freedoms, while it is everybody else and their mulitiple attempts at government, who are in touch. Laughable.

We are the most successful BECAUSE our Constitution does not allow immediate change based on the whims of a few. Sometimes this way is for the better, sometimes for the worse, but it cannot be said that it hasn't worked better than any other attempts.

good luck peddling that...

I wonder how the African slaves loved to be bossed around by the majority of the population who had no problem with slavery. Are you forgetting about the Bill of rights?

come back when you can make more sense...

women make up the majority of the population they should be allowed to make whatever laws that will benefit them aka mob rule. You are advocating for mob rule, the loudest voice in the room etc etc

confused statements from two separate places. Try to keep up.

Knock yourselves out. Have a great time.

I think you'll be disappointed, but hey, ya never know....

constitution of South Africa, not the U.S. Constitution. If you read its constitution you will see that women have rights enumerated for them which we don't have.

You know what? That's important to me. I have 3 granddaughters. They should have constitutional protections written into our constitution. Period.

You don't like that? Well, knock yourself out, buddy. You won't change my position and my own ideas of how our constitution should read.

I believe that, given the way that powerful interests try to trample our rights, an ideal Constitution should enshrine rights as broadly and explicitly as possible. The Bill of Rights is an excellent start, but as implemented today, it fails to go far enough. While many of the Founding Fathers assumed that the Bill of Rights might not even be necessary since all citizens would naturally support freedom, on this issue they were wrong. The Fourteenth Amendment improved matters, yet we still do not enjoy the full fruits of liberty that America promises.

Constitution is an invitation to problems and mischief by powerful interests. This is exactly what I was trying to say about the modern constitutions that have avoided this trap and written women's rights into their constitutions. Justice Ginsburg rightly saw this for the trap that it is for us in this country!

How about we just have human rights? in case those 3 grand daughters end up giving birth to all boys. Maybe a constitution that says men cannot be forced into fatherhood just because they decided to have sex or the defense of the country should equally be divided equally between men and women, no more male only selective service, or for every dollar the govt spends on women's health, an equal amount should be spent on men's health.

what I want for the girls?

And, fyi, I think women should share defense of the country equally and many servicewomen have been working for that for YEARS!

Also, fyi, women are charged more for their health care than men...

I'm sure you are familiar with the two processes specified in the Constitution for doing that.

why alot of other democracies aren't adopting them.

Why do you think that is?

Clearly, we have some big hurdles. I posit that getting corporate money out of politics, declaring that corporations do NOT share the rights of people, better protecting the rights of workers to organize, codifying reproductive freedoms for women, ensuring universal and quality healthcare, demanding that Congress take steps to impeach Supreme Court Justices when they are clearly derelict in their duties and/or violate their oaths to uphold the Constitution (e.g - Thomas with respect to health care, all of the majority in Citizens United, etc.) and many other steps would improve this country much more than taking away any right, however 'outdated.'

It seems impossible now, when Congress can't seem to do the slightest worthwhile thing, but there are only really two choices: improve society, or society collapses. I choose the former. If you think that repealing the Second Amendment would improve things, you are welcome to try. I don't happen to share this goal though.

-app

The structure of the sentence is such that the right is ascribed to the greater set ("the people&quot from which the subset ("militia&quot is drawn. Restricting the RKBA to the subset would require different language. The simplest way would have been simply to state "the right of the militia to keep and bear arms shall not be infringed." They didn't write it that way, and I sincerely doubt that's an accident.

I consider it particularly astute of you to note specifically what it is that's being regulated (the militia) and that to which the right to keep and bear arms is ascribed (the people). If you work in the linguistics field for a living, I'd expect this; if not, I'm considerably impressed! Most laypersons wouldn't understand how the amendment's structure actually works.

Gosh, that sounds so arrogant! Not muy intent: linguistic philosophy's my vocation.

I'm an ecologist, so linguistics is not my field.

But I am a fan of Chomsky on many issues, so maybe I absorbed some linguistics by osmosis.

Anyway, no arrogance perceived...



-app

who

of "natural law"?

(Actually, if you need Constitutional authority as a basis for your rights, the Due Process provisions within the Fifth and Fourteenth Amendments are broad enough to cover that.)

The Founding Fathers had a well-documented fear of a standing army. James Madison, on of the principal authors of the constitution, famously remarked that "A standing army is one of the greatest mischiefs that can possibly happen" and Madison's Vice President, Eldridge Gerry, called standing armies simply "the bane of liberty."

This wasn't just some colonial paranoia. England and spend the better part of the seventeenth century fighting a series of civil wars over the subject of the state's established religion (which lead to the first amendment) and allowing the King unfettered access to thousands of soldiers was widely perceived as "part of the problem and not part of the solution." The Glorious Revolution of 1688 and its Bill of Rights put an end to a standing army under royal control. But to the American colonists, however, there was scarcely and difference between the British Army under the control of the Crown or Parliament.

Standing Armies were a temptation for any sovereign to become a despot. They were, to many in the new American government, the bane of liberty. After the Revolution, the United States Army was disbanded save for a regiment to fight Indians on the frontier and a detachment to guard to armory at West Point. For all practical purposes, the United States did not have an army a few years after the adopt constitution.

Hence the importance of the well-regulated militias. And in this sense "well-regulated" is synonymous with "well-trained" and "well-equipped."

Now there's the second important part of the second amendment, and that is the phrase "bear arms." In today's world that's interpreted in it's most general sense possible. To bear arms in the 21st century means simply, "to be armed" or "to carry a gun." But that's not what it meant in the 17th century. To bear arms 250 years ago meant to serve in the military, or in the militia. To many European political philosophers, an enfranchised and armed citizenry was the best defense against despotism. And to the Founding Fathers, there was also the practical matter of defending the nation.

Linguistically, what the Second Amendment says is that Militias are vitally important to our nation's self-defense, AND SO the right to maintain these militias will be preserved.

That does not necessarily mean that individual persons don't have the right to own a gun, but framers of the constitution had no intention that the right exist for the purpose of target shooting and amusement. It was were a very specific and important civic function.

Jeff, your reply is certainly thought-provoking, but I think that it's clear that the framers wanted the right for citizens to at least "keep" arms for any reason they chose. In support of this argument, I'd point to the Ninth Amendment, and under-emphasized bit of Constitutional text if there ever was one:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


In this case, 2+9 definitely = an individual right to keep & bear arms, I'd say. While I don't recall the Heller opinion specifically referencing the Ninth Amendment, were I a Supreme Court Justice, this Amendment would influence nearly every case I heard.

-app

Was an appendage to the Bill of Rights because, at the time, there was a fear among the Federalists that enumerating certain rights in the constitution might give the appearance that these (the first eight amendments) were the only rights that existed, or were at least protected by law. It was protection that both Federalists and Anti-Federalist ultimately believed was necessary to prevent the enlargement of government or the disparagement of those rights that weren't enumerated.

But that's not exactly how it's work in practice. The fact is that in just about every case, the right to free speech as enumerated in the first amendment, will trump some other right that is not enumerated. If you're looking for a real snoozefest, try reading US Public Workers v. Mitchell.

But all of this isn't to say that Americans don't have the right to own a gun. You have the right to own a gun, a house, a car, and a four-slice toaster. The founders held the right to own property and personal freedom to be very nearly interchangeable. Again, as Englishmen they had a long history of the Crown arbitrarily siezing private property and expropriating it for its own uses. "The moment the idea is admitted into society that property is not as sacred as the Laws of God," wrote John Adams, "anarchy and tyranny commence. Property must be secured or liberty cannot exist."

Makes the language of the second amendment see pretty tame by comparison. So while the Second Amendment may or may not confer a right to own a firearm, it seems pretty clear to me that the consensus among the Founding Fathers was that owning a firearm, as an article of personal property, would be protected.

DirkGently, (an excellent username btw - I am a Douglas Adams fan)

How can you say, "that the entire Amendment deals with militias, after reading the OP, and responses #2, 36, 38, and 47, to name just a few? All of these posts contain valid countervailing arguments, some with references.

You might WANT the Second Amendment to be so narrowly circumscribed, but that does not make it so...

-app

Why not do two separate sentences? Or forget the qualifier of the well-regulated militia?

For further discussion, let's look at the preamble to the Bill of Rights-

[div class='excerpt']The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The Bill of Rights was intended as a 'the government shall not' document- "to prevent misconstruction or abuse of its powers"- not a 'the people can' document. Rights aren't limited by the bill of rights; rather the scope of protections of certain rights are set. If the Bill of Rights were a listing of all a person's rights, there would be no need for the ninth and tenth amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." respectively.)

Looking at the text of the second amendment, similar wording can be found in other writing of the time, though it's fallen out of favor these days. For comparison, see Rhode Island's constitution, Article I, Section 20- "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject..". That construction- '{reason}, {statement}' exists today, but we usually swap the clauses- "I'm going to the supermarket, I'm completely out of soda." or we add in a 'because' or 'since'- "Since I'm completely out of soda, I'm going to the supermarket." or "I'm going to the supermarket because I'm completely out of soda." Does that mean you're only buying soda, or that supermarkets only sell soda? Of course not.

A modern restatement of the second would look something like..

"Because a well functioning militia is necessary to state security, the government shall not interfere with the right of the people to be armed."

or

"The government shall not interfere with the right of the people to be armed because a well functioning militia is necessary to state security."

Nothing in either of those statements says that arms are only for militia service, rather the ability to raise an effective militia is why protecting the right to be armed is protected.

If I said, "Pizza being necessary for late night study sessions, the right to grow and cook tomatoes shall not be infringed." would that mean that tomatoes are only to be used for pizza? Of course not. (Never mind white pizza )