Does the 2nd Amendment allow private gun ownership?

Amendment II
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.

Given its emphasis on "a well regulated militia" and "the people" (as distinct from individual "persons"), one interpretation of the 2nd amendment is that it provides for keeping and bearing arms within the context of official military or paramilitary activity. This might be seen as distinct from private gun ownership.

Therefore, would it be unconstitutional to restrict the right of individuals to own guns?

The 2nd was written in the mind that a "well regulated militia" in the context of protecting oneself from a tyrannical government, if one ever came to pass.

Which proves that the purpose of the Federalist Society is suspect. It is not about the difference between conservative judges who use textualist methods to determine court opinions vs. liberal judges who attempt to adhere to legislative intent. It's simply about putting judges on the court that will push a conservative agenda through any means possible -- even liberal ones if it serves their purposes.

All these documents were meant to be constantly changed. If the guns can change, so can the laws.

and all you have to do to change it is pass a constitutional amendment changing it. Until that is done, the Second Amendment stands, and means what it says.

throughout history it has been taken as allowing private gun ownership and we can't redefine it or decide to read it differently now.

but it was a long time ago and they did not have our problems, exactly.

You're right, the technology was far simpler then than now.

At the time of the writing of the Second Amendment, the "state of the art" military rifle was a smooth-bore single shot Brown Bess" musket, complete with evil bayonet lug. Now it's a fully automatic M-16, complete with evil bayonet lug.

At the time of the writing of the First Amendment, the state of the art of the free press was a manually operated hand press. Now it's a fully automated news press, or a computer and printer, or a fax machine, or a telephone, or a bunch of other things.

At the time that the 4th Amendment's prohibition on unreasonable searches and seizures was written, the state of the art in unreasonable searches and seizures meant them kicking in your door without a warrant. Now, they can electronically eavesdrop on you, put tracers on your car, bug your telephone conversations, see heat sources within your home with thermal imaging, take your precious bodily fluids and do all kinds of strange things to it, and on and on and on.

If the Second Amendment only applies to Brown Bess muskets since the technology has changed so much since it was written, does the freedom of the press only apply if manual printing presses are used, since the technology has changed so much since it was written? Does the prohibition on unreasonable searches and seizures only apply to having your door kicked in since the technology has changed so much?

Not only no, but HELL NO.

If the Second Amendment only applies to Brown Bess muskets since the technology has changed so much since it was written, does the freedom of the press only apply if manual printing presses are used, since the technology has changed so much since it was written? Does the prohibition on unreasonable searches and seizures only apply to having your door kicked in since the technology has changed so much?

Excellent point.

I would counter that it's not an issue of context but one of intent. Militias were staffed by locals using their hunting rifles. I would suggest that the level of technology needed to form a defense against armed assailants would be appropriate. This could be a knives, swords, rifles, handguns.

I don't think automatic weapons qualify because these aren't useful in self-defense. That is, it's like detonating a bomb for self defense. There is a LOT of power but very little focus. These are assault weapons, not defensive weapons. You use them when you want to kill as many people as possible in a general area, not a single individual.

Semi-automatic are fine because they provide a shot and reload. The user has the opportunity to re-aim before firing. They don't "spray" (without modification).

"I don't think automatic weapons qualify because these aren't useful in self-defense. "

How do you figure?

Doesn't the military issue automatic weapons to rear echelon personnel for self defense? What about tank crews? Their offensive armament is the tank itself, but they're issued smgs for personal defense, too.

If one person has a handgun and another has a smg at 50 yards, assuming equal levels of training, and they're trying to kill each other, which would you put money on surviving? I'd bet on the guy with the smg.

Colony's. If you look at it from a states right it isn't so bad. There isn't anything stopping each state from regulating guns.

there isn't anything stopping each state from banning free speech, or instituting a prison torture program, or keeping slavery legal according to State Law.

Unless, of course, you buy into the Incorporation Doctrine and the Supremacy Clause.

it is protected by the 2Amendment.

"would it be unconstitutional to restrict the right of individuals to own guns?"
Nope. Furthermore, for all the lies to the contrrary, the NRA knows it full well. The National Rifle Association has NEVER challenged any gun control law on Second Amendment grounds. That's "never" as in no where, no how.

They've been quick to sue on other grounds. Amusingly, although they tell their inbred supporters that the Bill of Rights cover only individual rights, they sued unsuccessfully to overturn the Campaign Finance Reform law on the grounds that their collective first amendment rights were being abridged. (And they didn't lose because the Bill of Rights covered only individual rights, either).

What does it say when someone won't put their money where their mouths are?

When a DUer fails to mention that the NRA's co-plaintiff in the afforementioned case was the ACLU, and while he's gloating over the NRA's defeat in court, he's also gloating over the ACLU's defeat?

somebody REALLY desperate is trying to drag the ACLU in to a discussion that has nothing to do with the ACLU, to try to give legitimacy to this rancid bunch of racist shits at the NRA....who by the way, put the ACLU on its enemies list.

Now let's see what the ACLU has to say upon THIS subject, refill: "We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration. 

http://www.aclu.org/PolicePractices/PolicePractices.cfm?ID=9621&c=25

What is the Bill of Rights for, if not to protect the rights of ordinary individuals such as you and I? For example, does the 4th amendment protect the right of the government to be secure in its persons and effects from unreasonable searches and seziures? Does the 8th amendment mean that excessive bails and cruel and unusual punishments not be levied against the government? Does the 1st amendment protect the government's right to free speech?

Clearly, the bill of rights was the founders way of describing rights that people, by people I mean you and me, have. People have rights. There is a certian danger in proffering the view point that individuals are not the subject of the bill of rights in favor of the view that the collective, as a distinct and separate entity is the subject of the protective language described therein. The danger is that this speads the view that constitutional rights are not broad concepts, but only very narrow places in which ordinary individuals have protection from government action. In fact I believe many of the things the government does today, such as the prohibition (aka drug war), spring from the idea that there are no effective limits on governmental authority. Without a doubt the people who argued in favor of the bill of rights as being a necessity would strongly disagree that the government has no limits placed upon it when dealing with the average citizen.

For the record I have never said that there should be no restrictions on rights, no laws that can legislate conduct revolving the rights described in the bill of rights. We have right to free speech, yet no right to slander. We have the right to peacable assembly, yet mob violence is a crime. We have freedom of worship, yet religion is not an excuse for any outraegous behavior, such as the mutilization of young girls or condemning a widow to a funeral pyre such as there are in other parts of the world. Likewise a citizen in good standing has a right to own a firearm or bowie knife, yet no right to murder.

I believe that there is a need for some laws regulating the conduct of weapon ownership, and I believe that to own one is an individual right. I do not believe these two positions to be mutually exclusive.

We should jealously guard the rights described in the bill of rights. Both the Republicans and Democrats could stand some improvement in this area, though each party is weak on different issues. Democrats generally seem weaker on the 2nd and Republicans weaker on the 4th, for example. This doesn't mean that the 2nd or the 4th is more important. Rather both are, and caution should be taken when anyone suggests watering them down.

The whole collective versus individual argument is a red-herring anyway. A collective is a group of individuals, and any concept that applies to the collective applies to the comprising individuals. There is one narrow definition of collective in which it is a separate and distinct thing from its member individuals. I strongly advise all Democrats, Greens, and any other progressive or leftist to reject the viewpoint that the bill of rights describes rights excludes individuals. In fact I would say the same thing for the exclusion of the group. Only in the most narrow definition can the two, individual and collective, be separated.

WE THE PEOPLE.

On edit: damned typos

Spin as desperately as you like....it's clear that gun control is perfectly constritutional....and that the NRA is lying.

that §922(o) is unconstitutional. That decision was handed down by those crazy jurists in the ultra-conservative 9th Circuit Court of Appeals....

There is no where in any interpretation that says you can own any type gun you please. It says the people can be armed. If the government said the only arms a person could own were a hunting rifle there is nothing constitutional to prevent the government from doing that. Arms may be interpreted by the government. In fact they have already done that in many ways. A regular person on the street is restricted from owning a nuclear bomb or even a maching-gun without all the proper government forms filled out. Assault weapons ban, Saturday night special bans etc. etc.

the NFA was and remains a tax measure. The regulations put in place are there not to restrict ownership, but to facilitate the collection of the tax. There's caselaw that states that tax measures must exist to raise revenue, NOT to prohibit possession of something.


Oh, BTW, in case you missed it, the 9th Circuit Court of Appeals (those far right-wing extremist bastards) just struck down §922(o) as unconstitutional (in an extention of Lopez), the restriction on private possession of machineguns. That's not nation-wide yet, but it surely is a hell of a circuit split.

You change one and it is easier to change the other imo.

All it does is prohibit the government from infringing on the right of the people to keep and bear arms.

The only regulating authority is the government. So by definition it is the governments to regulate the ownership and distribution of guns.

The "well-regulated militia" clause is a justification for the prohibition against infringement, not a limit on the right itself.

If the government was intended to have the power to regulate ownership and distribution of guns or anthing else, why is that not in the body of the Constitution? The only mention of private, personal property in the Constitution or the Bill of Rights is the prohibition against unreasonable seizure in the 4th Amendment.

:shrug:

english doesn't apply to the gunnies

way. It's the same root as 'regular army' and where the brand-name 'Regulator' came from for clocks: the 'regular' army and the 'Regulator' clock behave in a well-defined way.

So a 'well regulated' militia was one whose members would turn out when called, shoot straight, and behave in a predictable manner.

but here's the way i look at it.

you've got 2 kinds of people in the u.s. - law abiding and those who are not so prone to abide by the law. if given the choice we don't really mind so much the law abiding citizens here having guns, right? they're the ones using it for protection against the non-law abiding - the ones we don't want to have guns.

now, should we pass a law which takes that right away, whomdo you suppose will abide by it? obviously, the law abiding citizens. who do you suppose will not abide by it? obviously, the non-law abiding citizens.

any law which takes away our right to own guns will effectively put law-abiding citizens at a greater risk.

i know it's the liberal mantra that private gun-ownership should be done away with, but i could not support it.

Hi, I'm new to this board. Hope it isn't gauche to jump right in with an opinion. In any case, I will qualify the following by saying that these are more questions for discussion than hard political opinion.

My concern is that the ideal above is not the reality in the comparison of law-abiding versus criminal activity regarding guns, for two reasons.

First, while law-abiding citizens may follow laws and keep weapons ostensibly to protect family and home, how often does one hear of such events, compared to how often we hear of the child of that law-abiding family killing a sibling or visiting friend?

Second, while criminals do obtain weapons from unscrupulous dealers, most obtain them either through direct theft (from law-abiding owners) or secondhand via the same source.

This may sound slightly off topic but I think it relates to underlying issues this debate rests upon about the intentions of the authors of the second amendment. Did they imagine a country in which the people had the right to protect themselves against unjust rule, or did they imagine an eternal frontier mentality, with a gun in every hand? Intentions are impossible to infer in retrospect, but the latter case seems out of sync with their vision.

with the fact that there would be no way to regulate those who possess stolen guns w/o serial #'s etc. if one day we just up and said "okay, it's now illegal to own a handgun," who do you suppose would turn theirs in? probably most law abiding citizens would. how about drug dealers, car thieves, etc., many of whom own stolen guns with no serial #'s? there wouldn't be much way to regulate it until a crime occurs. then it's too late.

> would it be unconstitutional to restrict the right of individuals to own guns?

Of course not. It's not only Constitutional, it's the responsiblity of government to ensure the safety of its subjects by restricting access to them. Making sure that those things are used only in official capacities is one way of helping to protect the people.

What kind of history are they teaching at VPI these days?

The whole reason the country was started was to get away from the enslavement of being subjects of a British monarch.

We're not subjects here, we are CITIZENS!

> What kind of history are they teaching at VPI these days?

Not much, it's an engineering school. ;)

> We're not subjects here, we are CITIZENS!

Tell that to the repuke-controlled IRS when they come to collect.

Seriously, you're picking nits. We're subjects to the US government. They control our money and our time. They allow us to do certain things and disallow us from doing many things upon the threat of fines, imprisonment, or even death. Are you sure subject isn't the correct word to use?

We're subjects to the US government.

We're not supposed to be. The Founding Fathers were quite clear in that distinction.

They control our money and our time.

The government provides a monetary system because they are charged with that responsibility under the Constitution. They have NO authority over our time unless we are enlisted in the military or being held in prison.

They allow us to do certain things and disallow us from doing many things upon the threat of fines, imprisonment, or even death.

No! All they do is DISallow certain things. Anything that is not prohibited by due process of law is by default ALLOWED.

Are you sure subject isn't the correct word to use?

The American Heritage Dictionary online says:

1. One who is under the rule of another or others, especially one who owes allegiance to a government or ruler.

We are under our own personal rule as free individuals, and we do not owe allegiance to the government or its corrupt rulers.

<snicker>

The Constitution places restrictions on governments. It places no restrictions on people.

We are not "subjects" of the government; in theory at least, the government is our subject.

nc

Go Hokies!

Does the word "people" connotes an individual right?

You can't define the same word differently in the same document. This is a concept that has historically received judicial approval.

Most of the Bill of Rights is about individual liberties that belong to single, discrete entities. If you look at other places where the word "people" is used in the Bill of Rights, they've been consistently held to grant an individual right, and NOT a collective right. If the word "people" in the Second Amendment means a collective right, then a bunch of other cherished civil liberties fly out the window as they switch from individual rights over to collective rights.

Also, you're assuming that the introductory clause overpowers the main clause.

The main clause states "the right of the people to keep and bear arms shall not be infringed". It doesn't say the right of the militia, it says the right of the people. That statement, "the right of the people", sure sounds like the people have a right, doesn't it? What in the introductory clause makes you think it overpowers that right?

Let's try a non-gun and non-militia example. Here goes. "Rotted fish tastes nasty, is bad for you, and shouldn't be eaten; the right of the people to catch and eat fish shall not be infringed." The introductory clause is making a statement about rotted fish, which relates to the main clause, but the language of the main clause clearly grants a right, regardless of what the introductory clause says. The introductory clause is a subjective statement (what if you LIKE the taste of rotten fish and think it's good for you?) but the main clause is a declarative statement.

As Freud said: "sometimes a cigar is only a cigar." My corollary is: "Sometimes the word people really means people"

so you STILL cant use this stupid argument, because the 10th amendment uses the word "people" and there's no place in the Constitution where it spells out he right of the government to restrict chemicals.

So, which is it gonna be? Now, I have no problem if you want to interpret the 2nd and the 10th in the same manner...that which guarantees the rights spelled out in each, but that means you can't support Democrats anymore. I mean, they're the ones who are trying to restrict your guns and they're the ones who are so gung-ho on the drug war.

So, what's it gonna be?

It's a perversion of the power granted under the Interstate Commerce Clause. Your right to grow, keep, and smoke pot has been infringed.

Do you need me to quote the 10th for you? It doesn't reserve all rights not granted or enumerated in the constitution to the federal government to the just the people alone now, does it? I seem to recall something about the States getting some, too.

And as you very well know, I've got no problem with legalizing drugs, it's none of the government's goddamned business.

Not all Democrats are anti-gun and anti-drugs. My rep is pro-gun, pro-choice, and not terribly anti-drug. And we take the best viable choice that we have, since the alternative is far more evil.

Fortunately, you're not the arbiter of who is and isn't a good Democrat.

What you term an "introductory clause" I would see as setting out the background or justification; in other words, the reason for promulgating the amendment. Parsing the sentence, it seems that the right to bear arms is justified because a well-regulated militia is necessary for security.

I'm not sure I understand the fish analogy. My version of it would run as follows: "Fish-guts being necessary for the sustenance of a nation's economy, the right of the people to catch fish shall not be infringed." Once the economy has evolved past the point where fish-guts have any role, doesn't the right to catch fish become redundant?

I doubt that the person (ha!) who wrote this document was merely filling up space with a casual observation; he was making a substantive (not incidental) link between militia-based security and the right to bear arms. As for the reason for including this link, my guess is that it was necessary in order for the Amendment to pass through Congress. I'd like to be enlightened on this.

Once a right is enumerated, it's got to be repealed by an amendment. You can't just pass a law changing it, the right must be repealed, since the Constitution trumps all other law in the land.

With your fish-gut analogy, there are more reasons to catch fish than to use the guts to sustain the economy, right? Some people might sport fish, some might fish to eat, and some might fish to stock aquariums, some might fish because they're bored, or because they need the exercise, or because they need an excuse to be on the water and drink beer with their dog, et cetera, right? They have the same right (being one of the people) to fish as people who are fishing to fuel the economy, right? And that right is protected by "the right of the people to catch fish shall not be infringed." If the economy no longer needs fishguts to run, what happens to their rights? If they're to be stripped of their right to fish, doesn't that require due process of law, meaning a constitutional amendment?

there are more reasons to catch fish than to use the guts to sustain the economy, right?

Maybe, but the economic reason is the one stated - the one held as justfying the catching of fish. If the right was believed to require justification, one assumes that the drafters of this hypothetical bill foresaw potentially disastrous consequences of the right being exercised. For "fish", try substituting "blue whales" and you see what I mean.

Returning to the original subject, it seems to me that the drafters of the 2nd Amendment felt that guaranteeing the right to bear arms required urgent justification. Once the justification (i.e. security of the state through organised militias) disappears, so does the obligation to maintain the guarantee. Stretching the interpretation further, one might say that it is implicit in the Amendment that the guarantee is precisely conditional upon the necessity for organised militias. The 2nd Amendment is unique within the Bill of Rights in having such a justificatory condition attached. It might as well have read,

(So long as) A well regulated Militia (remains) necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

that the Amendment is NOT worded the way you put it. If it was, you'd have a valid point, but the fact remains that it's not worded the way, and you entered a bunch of non-existant qualifiers that simply are not in the original text.

For an example of how wrong this is, take the 5th Amendment's protection against self-incrimination, and add in (except in situations where the US is under terrorist attacks, then all bets are off). That completely changes the whole shebang, just as your 4 qualifiers changes the meaning of the Second Amendment. As such, it's bunk.

I added one qualifier (not four, and certainly not "a bunch"). And this solitary qualifier is (I think) implicit in the Amendment as it stands.

{b]"Maybe, but the economic reason is the one stated"

Reason for what? the existence or the non-infringement?
Only the non-infringement is actually mentioned in the second amendment.


{b]"If the right was believed to require justification, one assumes that the drafters of this hypothetical bill foresaw potentially disastrous consequences of the right being exercised. For "fish", try substituting "blue whales" and you see what I mean."

"IF" is not in the text of the second amendment, nor is any conditional. The assumptions made are baseless.

And if you want an ICBM you will have to pay a $200 transfer tax.

:wink:

:beer:

Yummy

how would you take it?

subject. If you care to read it send me a private message and I will sent it to you.

My conclusion is that the second amendment doesn't protect the individual right to own a gun. Which, by the way is a LUDICROUS concept for everybody except a lot of Americans....

and wonder which part of "the right of the people to keep and bear arms shall not be infringed" you misunderstood. There are 4 components, "a right", "the people", "keep and bear arms", and "infringed". Let me know, and I'll explain it to you.

Just because you think it's stupid doesn't mean much. And there are a lot of other people in the world who seem to think the people having guns is important...

That's why this country threw all those fuckers out 200+ years ago and decided that we wanted no part of them.

With all due respect to Europeans, they tend to have a very different worldview than Americans -- a worldview that can be perilous at times. There would have been no Holocaust in the 1930s and 1940s if the citizenry of Eastern European countries had been permitted to keep and bear arms.

Saddam's people were well armed. You simplify things to the extreme and imagine that shootouts would of stop the evildoing of the Nazi. It's easy in retrospect to say that guns would of saved the day. It's even an offensive concept. C'mon! Look at what happened at Wacko! Koresh was armed, WELL armed!!!

1. Saddam's people certainly were (and still ARE) well-armed. And this may very well be the one thing that chases the U.S. out of Iraq.

2. Koresh was well-armed, too -- but he had only a small number of people in an easily-contained compound in Waco. If his followers had been the equivalent of one-third of Waco's residents, and had been spread about the area minding their own business when the ATF agents had arrived on the scene, the results would have been much different. In fact, there would have been no ATF agents at all -- because he would have been left alone.

That is one of the most ridiculous justifications I've ever seen. There most certainly would have been a Holocaust, considering people were armed, and it happened anyway.

Do you really think that if our government wanted to do something similar to us, that we'd really be able to stop it with our hunting rifles, against their big tanks?

There are reasonable arguments against banning firearms, but that is not one of them.

. . . were able to do back in the fall of 2002. There were only two of them, and I use the term "snipers" loosely because they weren't very good at what they were doing.

If those morons hadn't been making phone calls to the police dropping hints along the way, they would still be out there.

"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."

You said:

"Given its emphasis on "a well regulated militia" and "the people" (as distinct from individual "persons"), one interpretation of the 2nd amendment is that it provides for keeping and bearing arms within the context of official military or paramilitary activity. This might be seen as distinct from private gun ownership."

The "emphasis" on a militia is immaterial (try learning what a militia is anyway, it's NOT the National Guard).

But the fact you are trying to misinterpret "the people" as meaning "not individual" is laughable on it's face. The right of the people to keep and bear arms shall not be infringed.

Is that difficult to understand? I don't think so.

The states' rights to maintain a military. The Second Amendment wasn't designed for the purpose of individual citizens to protect themselves from a tyrannical government. The state governments can legally ban citizens from owning any gun they wish.

Read the text of the 10th Amendment. It's obvious that when referring to rights retained by the State, they say "State", and when referring to rights retained by the people, they say "People".

You've heard of the doctrine of Incorporation, right? That's what took the First Amendment and applied it to the States, along with other fundamental rights in the Bill of Rights. Prior to the Incorporation doctrine, States COULD establish state religions, et cetera.

If the Second Amendment is held to mean that the States can ban things covered, then what's next? Idaho adopting Christian Identity as the one official State-sanctioned religion? After all, the First Amendment starts out "Congress shall pass no law"...It says NOTHING about State legislatures passing such laws...

So yes states can ban any gun it wants.

where the Second Amendment says States can ban anything they want.

The First Amendment starts out "Congress shall make no law...". Does that mean that the States can ban free speech? After all, it doesn't start out Congress and the States shall make no law...

How about Amendment 8? It says no cruel and unusual punishment. Does that mean only the Federal Government cannot inflict cruel and unusual punishment, but the States can?

You seem to miss the entire point of the main clause. There's a right. It's retained by the people. The right is to keep and bear arms. And it shall not be infringed. Allowing the States to ban anything they want isn't indicative of there being a right, and sure as hell would be an infringement on that right.

The Second Amendment says: "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."

The right of the people to keep and bear arms is held within the context of a well-regulated militia for the purpose of a state's defense. The 2nd Amendment simply gives state's the right to maintain a military. It doesn't stop the state's from banning guns.

The 2nd would read "A well regulated militia, being necessary to the security of a free state, the power of the state to keep and bear arms, shall not be infringed."

But fortunately it does not read like that. People have RIGHTS. Governments have POWER. Governments do not have any kind of RIGHTS whatsover. The only reason Governments have POWER is because People give it to them. The Bill of Rights is a document of restrictions on government and enumerated protections of certain rights the Founders deemed to be vitally important. There is absolutely no way that the 2nd can be construed as giving a power to the states, to do so would fly in the face of documented history and reason.

See Amendments IX and X for explicit differences between people's rights and state powers:

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

Amendment X
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.

The 2nd would read "A well regulated militia, being necessary to the security of a free state, the power of the state to keep and bear arms, shall not be infringed."

It wouldn't. It would read, "A well regulated ARMY, being necessary to the security of a free state, the power of the state to keep and bear arms, shall not be infringed."

Militias are composed of private civilians, not government-employed professionals. The Amendment implies that the state should regulate militias, not own or in any sense be synonymous with them.

The states can do whatever they want with militias. The fact remains is that the 2nd protects ALL citizens in their right to keep and bear arms and not just "government-employed professionals" as you state.

See Federalist 46 for more information about why the initial declaratory clause was inserted and why it is important that militias comprise of the whole of the people.

I did not state that the 2nd protects government-employed professionals. I suggested that it precisely does not do that.

What I have argued is that the 2nd guarantees the right of citizens to bear arms within the context of a state-regulated (not necessarily state-sponsored) militia.

There is a very important part of the 2nd that reads "shall not be infringed." That means there is no limiting context for that right, it is untouchable. The initial declaratory clause only serves as what James Madison and others thought was the most important reason for the amendment and that was to prevent the federal government encroaching on the rights of the people within the states, and the power of the people to be able to rise up within the citizenry and resist a federal tyranny. And the only way this was possible is for all citizens to have the right to keep and bear arms.

Again, see Federalist 46.

Just how close do you have to get to a federal tyranny before you act?

And the people next to you who may be willing to lay down their lives for a chance at freedom.

Since I'm not an American citizen, I don't have (or want) the right to keep and bear arms.

Are able to purchase firearms depending on the state. If you should ever be compelled to exercise this right, you probably have some recourse to do so.

And, as I've said, I don't want to own a firearm of any description, legal or otherwise.

No where in any reading does it say the governemnt cannot define what arms actually means. It may mean a hunting rifle or it may mean a nuclear bomb. It is up to government and the supreme court to establish definitions of terms used in Constitution. You may be able to bear arms all you want but the government can say what arms those can be.

If the government and/or SCOTUS decided that "arms" included "pikes, knives, swords and other edged weapons" and did not include ranged or explosive weapons of any kind, they would be entitled to change the law on that basis?

Surely "arms" means "arms" - i.e. any available weapon?

Where can I order one? The government has already established in many ways what "arms" can and can't be owned. Shotguns with less than eighteen inch barrels for instance or Saturday night specials or some assault weapons or machine-guns or howitzers or switchblades or ?????. You get my point I'm sure.

...deciding that "arms" are the things that stick out of your shoulders?

"The government has already established in many ways what "arms" can and can't be owned. Shotguns with less than eighteen inch barrels for instance or Saturday night specials or some assault weapons or machine-guns or howitzers or switchblades or ?????. You get my point I'm sure."

Miller was about a TAX levied on short barreled shotguns.

It didn't ban possession, it taxed the transfer of such weapons. And the holding in Miller stated that if there WAS a showing that such a weapon had a military use, it was protected by the Second Amendment.

Even the vaunted AW "ban" of 1994 didn't ban possession, it limited future manufacture of assault weapons. And "Saturday Night Specials" (a racist term, BTW) are still legal to manufacture in the US, just not to import.

As a side-issue, Madison remarks that, "in the several kingdoms of Europe ... the governments are afraid to trust the people with arms" in case they rose up and overthrew their governments.

116 years on, I've noticed that there are still many Americans who believe this to be so. I've heard it said more than once that firearms are banned in Britain because "British people can't be trusted with guns".

....of what the framers really meant with that passage, it has been interpreted to mean that citizens have basic rights to own guns.

And that interpretation has been reflected in our laws and regulations for many many decades. Nobody is going to revisit it and decide otherwise.

I have no problem with some sensible gun control. Waiting periods, background checks, you know stuff like that. There will never be serious gun confiscation in this country however, because it would be physically impossible. Ahd like it or not, personal gun ownership might be the last meaningful freedom that protects us from ourselves (our leaders).

I feel kinda sorry for people who long for a gun-free country, you might as well wish to the tooth fairy to put a winning lotto ticket under your pillow when you haven't even lost a tooth :)

Nobody has every suggested any such thing.

BTW the Second Amendment doesn't say anything about hunting. Back in the 18th Century it was such a common practice that the right to do it was not questioned by anyone.

Yuppers, those guys knew that the current military weapons of the time, which WERE protected, were not hopelessly out of date.

Back then, a smooth-bore Brown Bess musket was state of the art, just like a Minimi is state of the art (sort-of) today. The Brown Bess even had a bayonet lug, which was finally banned in 1994.

I am new here and this is my first post but allow me to jump in here. I do not know anyone that would want to hunt with a full auto weapon. A person would be apt to ruin the meat doing something like that. I believe it is also illegal in most if not all states.

I believe that the 2nd Amendment applies to individuals as do all of the other amendments.

Allow me to make an analogy here. You say that people do not need to own m-16's and machine guns to hunt deer. Well you do not need the internet to express your freedom of speech. Does that mean that the government should outlaw or regulate the internet? Should people be required to go through a background check and a waiting period before they can use the internet? Should high bandwidth internet connections be against the law(except those in existence before say Sept. of 1994)?

(easier to enter debate, wider reach etc)

Are you now saying M16's make for better deer hunting?
No?
Then you analogy doesn't hold.

M16's can be outlawed and you'd be able to hunt deer just as well as before.

And no, I haven't lost my mind. There's a selective-fire switch on an M16, which when placed in the center position causes one round only to be fired when the trigger is depressed.

The AR-15 only fires in semiauto mode unless someone screws with it.

M16 and AR-15 rifles are small and light, fire a cartridge that's plenty good for shooting eastern deer (West Coast hunters like .270s and .30-06s) and have a finish you won't damage by scraping it against the brush.

And it's a small-caliber rifle, people, not a multiple rocket launcher.

I would rather have an HK-91 (semiauto-only version of the G3 battle rifle in .308 caliber) but if given the choice of my Ruger Model 77 in 7mm magnum with Redfield scope or an AR-15 with iron sights if the quarry was east coast deer, I'd take the AR-15. The Ruger's set up for long-range shooting, and you don't have that back here.

I will agree that using an m-16 or ar-15 type weapon in a semi-auto mode would be perfectly acceptable for hunting.

In my other posts I was refering to a full auto weapon.

An m-16 would make hunting easier and you would be able to shoot more deer faster. That would not make hunting better in my opinion though. For the purpose of hunting for food using an m-16 makes no sense.

The internet could be outlawed and you would be able to express your freedom of speech as well as the people 30 years ago.

The First Amendment says NOTHING about the internet. It says "free press". The term "press" implies printing presses....not the internet.

BTW, can you point out the psrt of the Second that says "the right to keep and bear arms for hunting purposes"? I missed that in Conlaw...

I guess you missed the free speech part too. Try reading the Constitution again.

It says "the right of the people to keep and bear arms, shall not be infringed." That means people have the right to own and bear arms. To define arms: any weapon including any firearm, explosives, rocket launchers, etc. Now on to the bear arms part. That means carrying any arm as defined above anywhere, whenever I want to.

"Congress shall make no law respecting the 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 greivances."

I don't agree with this, but the argument they're trying to push is that the government can regulate or even ban classes of weapons. If they can do that with arms and the Second Amendment, then they can do the same with the Internet and the First Amendment. After all, We aren't speaking here, I'm typing, and you're reading later, and there's no verbalization (aka "speech") involved and no manually operated printing presses involved either. On top of that, the Internet is very useful in commerce, most of which takes place over state lines, so it falls smack-dab under the ICC, which gives congress the power to regulate Interstate Commerce.

What doesn't fall under Interstate Commerce these days? It basicly gives the government power to regulate anything.

Read Lopez, the Supreme Court case in 1992. Shepardize it, and look at what has happened since then, culminating in the Stewart case in Arizona, heard by the 9th Circuit Court of Appeals and published a couple of weeks ago.

The ICC has been severely smacked down in the past 10 years.

That is the case regarding the first Gun Free School Zone Act which was struck down and later replaced by a very slightly modified version which still gets its basis on the ICC.

Do you have a link to the Stewart case or could you provide a brief description?

but Stewart involved the Maadi-Griffin guy who was busted with a bunch of home made machineguns during a raid over the .50 caliber build-at-home kits. The 9th Circuit Ct. of Appeals panel that heard the first appeal held that §922(o) was unconstitutional, because even though the parts kits had travelled in interstate commerce, the guns were not likely to be sold in interstate commece, and therefore were not regulatable under the ICC, citing in part Lopez. Needless to say, I'm certain the Government will appeal their decision.

On edit: Here's the link:

http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

an "arms"....i know you were just making a joke...and welcome to DU

But if you allow the government to regulate arms in the manner I described then what is different about regulating any other Right in the same manner?

they're fun to shoot. I own several legally. What's the problem with legal private ownership of machineguns?

I just wish I could own them here in NJ.

Jeremy, if you're serious about escaping, let me know, I know some folks who are connected with the Underground up there, and they may be able to smuggle you out of there. It'll be dangerous, but it's worth it to be Free...

Viva La Resistance!!!!!

... well the machine gun part anyway. I wouldn't know an M-16 from a pellet gun. I own a 12 guage shotgun, a .22 rifle, a Glock .40 and a Saturday night special .25.

I don't have much of an opinion about machine guns, they seem to be pretty restricted and that's fine with me. Hard to imagine a law-abiding use for them.

and shoot them recreationally.

Am I somehow breaking the law by doing this? If not, isn't that a law abiding purpose?

... if it is legal :)

I don't know much about them but I seem to remember that you have to have a license that costs $500 or somesuch. Basically, I have no problem with people having them so long as they have a clean background.

One violent crime conviction, no machine guns.

Any type of domestic violence conviction will prohibit a person from buying any gun period.

To buy an NFA weapon (full auto, silencer, short barrel shotgun) you need to get approval from the BATF and pay the $200 transfer tax. That goes back to I believe 1938.

totally legal. Expensive, but legal.

BTW, there are a quarter million NFA weapons in private hands. They've been tracking them since 1934. TWO have been used to commit crimes. One of those involved a machinegun privately owned by...a policeman.

Not exactly a real high-crime item....

that the policeman did not even own it legally either.

His boss signed off on the form 4, and got sued for it. He won.

That would leave only the government with the right to bear arms. probably companies would find a way around it - or i'd be illegal to manufacture arms, since corporations are 'persons'.

But i do think very strict regulation of gun ownership is necessary.
Ie no carrying of weapons in the street, unless with a special permit.

That's how it is in many European countries. We do have the right to keep and bear arms, but that right is restricted (like so many other rights - which is only a practical matter). You need a license for which you have to pass an exam. Very strict safety regulations.
Most by far don't keep a gun let alone bear one. It is possible to obtain a gun illegally but it'll be expensive and the black market is small. Crime involving guns is on the rise somewhat, but it pales in comparison to the statistics of the US. Stupid fatal accidents and overzealous self defense are practically unheard of.

the people is us. The citizens. The intent of the second ammendment is too guard us from our own government. That would be hard to do if only the government had guns.

in the modern era. Arm yourself with any legal or banned weapon and stand toe to toe with an Apache!

At least on some level. You don't need an Apache.

Just saying the old salt of "I keep my gun to protect myself from the big bad gubmint" is just silly to me. How many thousands of rounds did Koresh have?

It's ridiculous...

There were around 100 dead Davidians at Waco, and 4 dead Feds, and the Davidians were tactically complete freaking idiots. There are 80 to 100 million gun owners in the US, many of which are NOT tactically total freaking lunatics. If the same casualty rate held true, that's 4 million dead Feds to take out the gun owners. How many people does the government employ total?

We are trying to protect the innocent in Iraq.

The dead ATF agents died weeks before the final assault on WACO.
"How many people does the government employ total."

The only pertinent question is how many gun lovers will die everytime they pull the trigger on the Apache. Grab your gun friends and face down a serious military campaign and you all will get smoked.

somehow don't count? Then I guess no US troops died to defeat Japan in WWII, since nobody on the 2 bombers that dropped the nukes were killed, right? If the ATF troops that died don't count, I guess the American dead at Pearl Harbor don't count either, since they were killed YEARS before the war ended...

I'm curious if you really believe we're trying to protect the innocent in Iraq, after we bombed them so heavily. And I'm curious what makes you think that the US military would not operate with at least the same level of caution in the US against their families as they operate with in Iraq against the Iraqis. You can't have it both ways.

Depopulation is great in theory, but it's not a realistic scenario. What would they do, carpetbomb Chicago because some of the people have guns? Puh-LEESE!!!!

I`m not for prohibition. I just think the argument is weak at best. I have a coworker with 25000 rounds stowed away, yet he cant walk a flight of step without getting winded. He uses the old "when they come for my guns, I`ll be ready" argument. Puh-LEESE
I`ve seen the power of the US Military. If they ban guns, you can go it alone and get smoked, or gather in Chicago and get smoked, its your choice.
You brought up the formula, then spun it into something altogether different

or aren't Stingers considered to be banned weapons and highly effective against armored helicopters?

Simple numbers: 80-100 million gun owners in the US
US military: Under 3 million now.

If one out of every 8-10 gun owners killed a single soldier (which is a piss-poor kill ratio), the Government would need to recruit an additional 5 million soldiers just to reach the point that they didn't have a military left. That's assuming a) that they could recruit that many people, b) that the recruits weren't rife with infiltrators, and c) that vast parts of the military would either obey such orders or not desert if ordered into action against American Citizens.

You've heard of the 29 Palms survey? One of the questions it asked active duty soldiers (marines, IIRC) was set up as such: "Congress has passed a law outlawing all private possession of firearms, and ordering them to be turned in. Would you fire on American citizens who refused to turn them in?" or something like that. 39% said "yes", they would fire on American civilians. That means 61% said "no", they wouldn't. I remember seeing an interview of one of the people surveyed, and he was asked about that question. His response was "Not only no, but hell no, and I'd shoot the bastard that gave me an illegal order like that." He appeared quite serious, and was a "lifer".

It's impossible to discover the intent behind the second Amendment without looking at the historical context surrounding its adoption. Nine States were necessary to ratify the Constitution. The control of the militia was a big point of discussion between Madisson and Masson. Militia was essential, for the South, to control, the slaves. The way the text was written at that point gave control to all militias to Congress. The South knew that the North wasn't "comfortable" with the idea of slavery. Loosing the control of the militia meant loosing control of the slaves.

Madison, who was first against the ratification of the Bill of Right but finally became one of the architect of the 2nd Amendment.

The English Bill of Rights of 1689 was the inspiration for the US Bill of Rights. But they were mostly guided by the balance of power between the South and the North. One author, Carl T. Bogus, says that the main motivation wasn't "protection against tyranny" but the assurance that the South could keep control over the slaves. When you read the 2nd Amendment with that historical context in mind, it's obvious that the "subject matter" is the militia, not the right for individuals to bear arm.

It's interesting to note that this amendment is the only one who has a from of "preamble" to put the next affirmation in context. In a purely legal interpretation, such a preamble must be seen as a restriction to the scope of that Amendment. Clearly, it's the State right that is clearly protected. It address the concerns that the States had about the control of the militia. It's also important to know what "militia" meant at the end of the XVIIIe century in the colonies. They were organized and controlled by the States.

a major gun control advocate? Isn't that his main "bread and butter"?

"There is nothing so passionate as a vested interest disguised as an intellectual conviction."--Frank Herbert

If it's all about the militia, then why didn't the Second Amendment SAY militia when talking about the right? If what you say is true, wouldn't the main clause read "the right of the militia to keep and bear arms" instead of the "right of the people"? After all, the Constitution makes clear distinctions elsewhere between the various kinds of militias (organized, unorganized, select, et cetera) and the people.

Look at the Militia Act of 1792. It clearly defines the different kinds of militias, and sets down the obligations of militia members.

Look at the Miller decision in 1939. Miller wasn't in any kind of militia. In fact, his prior criminal record precluded his membership in a militia. If the Second Amendment applied only to the militia, that single fact would have been dispositive in that case, and there would have been NO necessity to get into the military usefulness of the gun in question.

If the "right of the people" designates a State's right, then the vast majority of US Jurisprudence on other constitutional guarantees is wrong. You simply cannot have it both ways. Either "people" refers to an individual right, or it doesn't. If it does refer to an individual right, then the Second Amendment means what it says, it's a right of the people, and it shall not be infringed, even by the States. If it is a collective right and applies only to the States, then the right of the people to be free from unreasonable searches and seizures applies only to the State, so individuals can be subjected to unreasonable searches and seizures, unless they're part of the State government. And States are not bound by other constitutional protections if they pass laws that violate them.

That's pure bunk, and no serious legal scholar would go with such an interpretation.

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

your reading of that is that the Second Amendment only covers military style weapons, right?

Isn't the "absense of any evidence" language somewhat strange? Yup...until you realize that Miller's side wasn't represented AT ALL at the Supreme Court.

So, from the holding of Miller, if you can show that a weapon has some military usefulness, his possession of such a weapon WOULD be protected, right? Miller was a convicted Felon going into the court case, prohibited from being part of a militia, organized or unorganized. If he still had a right to possess military weapons, then doesn't that mean you DON'T have to be in a militia to have such a right, and therefore, it's an INDIVIDUAL right?

convincing Americans that every home had a gun in it. Probate records of the time tell a different tale.

Say, what's he up to now, since the (non-partisan, I might add) academic review board found that he violated a bunch of standards for academic integrity and forced him to resign from Emory? Didn't they use the term "falsify"? I bet that made it harder to get an academic job...

Stanley Katz Hanna H. Grey Laurel Thatcher Ulrich

and are you accusing the people who appointed the board and were on the board of being partisan? If so, Bellesiles has a hell of a lawsuit against them....why hasn't he filed?

:eyes: He disagreed with the finding of the board. The finding are a good read.
DO you know how the board votes? Were they gun owners? Were they pressured by gun money?

Scholars don`t even agree on the bible.

they wouldn't have employed Bellesiles, much less Kellerman.

Damn Lib`Rills rule the colleges! :think:

There are schools known for being Liberal, and there are schools known for being Conservative. Not all schools are Liberal, and not all schools are Conservative. There are even some in the middle.

Is this news to you?

eom

:smoke:

"the people" everywhere else means "the people" not "some of the people".

"shall not be infringed" apart from being sort of dated means "will not be screwed with".

I've heard all the other non-sense, spare me.

. . . and this is an issue that will destroy Democrats as long as we pretend otherwise.

Just remember that THIS is how the issue is presented in places outside heavy population centers:

If pornography is protected under the First Amendment, then the Second Amendment certainly gives a law-abiding citizen the right to own and carry a gun.

...simply presenting it as the 2nd Amendment gives the people of the United States the right to own and carry any weapon wherever they want to including schools, churches, sports stadiums, Washington DC, courts, etc.

Not many people realize that gun ownership is effectively banned in the Nations Capital.

. . . really care if gun ownership is effectively banned in the nation's capital. The day you mess with THEIR right to own firearms is the day you'll have a hard time winning an election in their state or district.

Try and ban free speech in DC and the whole nation would be up in arms. Yet they have banned an equally important freedom and no one seems to care.

I would love to see the day when the entire country had a law like Vermont where anyone that can legally purchase a gun can carry it with no permit.

. . . that many people outside the Northeast probably don't even think of D.C. as part of the United States.

its gotten worse since the "ban". of course so have drugs which is the real problem.

people just love to fret over how to fight symptoms insted of fixing the problems.

Which is why gun ownership and carrying needs to be legalized there ASAP.

Who let the Gun Dungeon in here??? x(

And it's 4:10 AM and I can't sleep.

Got coffee, ZW? Or do I have to brew my own?

:hangover:

But now we have a second gun thread in here, and they will start spawning soon.

I can't participate, because (and this will sound pompous) my knowledge of the history of the Bill of Rights far exceeds that of the NRA and their apologists, and that is the extent of my contribution to the mess.

tell me what you think.... :

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=104&topic_id=995761&mesg_id=995761

Ask a reasonable person, "No, it is for the purposes of maintaining a milita"

Ask an uninformed Southerner with a confederate flag hanging from his pickup truck, "Uh yeah, so the queen of england can't come back"

If one asks:

Why should the right of the people to keep and bear arms not be infringed?



then it is reasonable to respond:

A well regulated militia is necessary to the security of a free state.



but it is not reasonable to respond:

ONLY if/when a well regulated militia is necessary to the security of a free state.

(quoting from initial post)
"Given its emphasis on "a well regulated militia" and "the people" (as distinct from individual "persons"), one interpretation of the 2nd amendment is that it provides for keeping and bearing arms within the context of official military or paramilitary activity. This might be seen as distinct from private gun ownership.
(end quote)


The highlighted text above is written in the form of a given. It is a statement that the author asserts to be true and uses as a basis for an argument that follows. A "given" is NOT a conditional, and what follows is NOT CONDITIONED on whether or not the "given" is actually true or false.

Had the author of this thread wished to write the boldface phrase in his above argument as a conditional, I am sure that the author had the capacity to do so.

The second amendment also begins with a "given", and by the same token we can assume that if the framers had intended to write a conditional, they would have. And it must be noted that whatever the intentions of the framers were, they actually did begin the second amendment with a given (the word "being" being the give away)


The second amendment is written in the form:

X being necessary, the right shall not be infringed

The framers were bright fellows, they could have easily made the first phrase a conditional if they wished:

If X is necessary, the right shall not be infringed, or
When X is necessary, the right shall not be infringed

or stronger still

Only if X is necessary, shall the right not be infringed

But they did not write the amendment in the form of a conditional.



Just as important to an intellectually honest interpretation of the second amendment is the fact that only the non-infringement of the right is mentioned. There is no mention of the right's existence so there is no textual basis for inferring that the existence of the right is predicated on anything.

In order to give the amendment the meaning that the actual right (as opposed to its non-infringement) is predicated on what is contained in the first phrase of the amendment, a major rearrangement and the addition of certains words would be necessary:

Being necessary to the security of a free state, the right of the
people to keep and bear arms as part of a well regulated militia,
shall not be infringed.

or

The right of the people to keep and bear arms as part of a well
regulated militia that is necessary to the security of a free state
shall not be infringed.


The first rearrangement is not warranted by the text or the history of the amendment. The phrase "being necessary to the security of a free state' always referred to "A well regulated militia" and not to "the right" in each draft of the amendment, and that is also the only logical meaning in the final version (earlier versions used "is" in place of "being"). Also the above re-structuring requires the addition of connecting phrases such as "as part of" so it can not be a faithful interpretation of the text.

The next rearrangement has less problems since "well regulated militia" still is described as "necessary to the security of a free state", but the restructuring is extreme and words must be added for the rearranged sentence to make sense.

"as part of" or " while serving in " (would indicate a limited individual right)
"by way of" (would indicate a collective right)


Note that without some additional wording those thoughts and phrases can not be strung together in a meaningful way except in the order that the second amendment was actually written. So the assertion that the right is conditioned on, or qualified by, the first phrase has no textual basis.

If the clause concerning well-regulated militias has no conditional relation to the guarantee of non-infringement, why is it included? What that clause is, is the "given" (if you insist) upon which the guarantee is predicated.

What concerns me, therefore, is WHY that clause was included.

The framers were, I do not doubt, bright fellows. My suspicion is that they deliberately designed this Amendment to be ambiguous, as I've mentioned elsewhere in this thread. There was, possibly, some opposition to guaranteeing the right to bear arms (one can easily imagine nervousness at the thought of armed peasants launching a second revolution), and so the predication of "well-regulated (i.e. state-regulated) militias" was written into the Amendment as a reassuring measure, but in such a way as to allow "the people" to believe that the guarantee was unconditional.

(quote)
"If the clause concerning well-regulated militias has no conditional relation to the guarantee of non-infringement, why is it included?"
(unquote)

The Key word again being CONDITIONAL. No conditional is written in the second amendment.

Of course there is a relationship. The first phrase is written as a rationale (an assumed fact, a given) in support of the non-infringement, but there is not an IF/then relationship. Nor is the truthfulness of the first phrase in question, it is declared that a well regulated militia necessary to the security of a free state. There is no "IF" or "Should" or "when" to make the statement into a conditional.


"Deliberately Ambiguous"
"Reassuring" but actually a deception ?

Why then did the framers follow it up with the militia act of 1792 that required every free white male to provide himself with arms and ammunition ?

Why did the individual states have right to bear arms amendments that applied (and still do ) to individuals?

More misleading of the people?

The first phrase is written as a rationale (an assumed fact, a given) in support of the non-infringement

Yes, and in my experience when something no longer has any support, it collapses.

Nor is the truthfulness of the first phrase in question

Not its truthfulness, just its historical relevance. In other words, it was true at the time. It isn't now.

have not "collapsed", even though there are NO supporting statements or rationales for non-infringement written into those amendments.

only applied to the American Revolution? I dunno. I should've paid more attention in American History class. :shrug:

Considering the American Revolution was from 1775-1783 and the Bill of Rights (the first 10 Amendments to the Constitution) was ratified in 1791, it is clearly not written to apply to the American Revolutionary War.

However, you make a very good point, it certainly does apply to a hypothetical future American Revolution without a doubt.

in the 30s i think. Miller vs the US.

Guy had a sawed off shot gun, which was illegal under California law. Guy said that 2nd ammendment meant he could own said sawed off shot gun.

SCOTUS said, uh-uh, NO! becuase sawed off shot gun is not part of having a well regulated militia (which they also seem to define the militia as being the modern day National Guard.)

Add t that that the constitution also gives the states the power to appoint and run said militias and th ecase that individial rights to own a gun is suspect, if not downright weak. Certainly individuals don't have a right to own all kinds of firearms. Much less the military "arms" that was meant under the constitution.

Now, having said that, i would also point out that several states have in thier constitutions ammendments giving individuals the right to own firearms. And these are perfectly constitutional as well.

So whiel the US constitution doesn't seem to give individuals the right to "bear arms", it isn't against individuals owning guns either. Some would say that means individuals do have that right.

personaly, i say leave it up to the states. But thats me.

And until the SCOTUS re rules on MIller or soem case liek it, the precedent stands. (not to say we don't have Justices like Thomas and Scalia just itching to overturn Miller)

Although SCOTUS did rule that a sawed off shotgun (restricted by the National Firearms Act) was not covered under the 2nd Amendment, the determination was not that the 2nd Amendment was a collective right. The ruling was that the 2nd Amendment only covered arms that were fit to be carried by a soldier ("ordinary military equipment") and no evidence was presented that a sawed off shotgun was carried as such. Of course, soldiers did carry short barrel shotguns during the Civil War and World War I, but Miller was not able to provide a defense since he had been murdered prior to the SCOTUS hearing.

Another consideration is that Miller himself was not part of the National Guard and if the court had wished, they could have ruled that he was not covered under the 2nd Amendment, but this was not case. The brief does go into length about who comprised the militia (mostly citizens). As such, the 2nd Amendment, in the eyes of the court, is not a protection for states to have a militia (as if the whole people part was not enough as it is).

There is no need to overturn Miller because it already affirms the right for individuals to keep and bear arms that are considered "ordinary military equipment."

So technically, we all have a right to keep and bear a M16A2 assault rifle and it would be constitutional and in keeping with the ruling made on US vs. Miller.

Scotus overturned the lower court's ruling in Miller, but they didn't hear evidence about if the gun had some kind of military use, since that wasn't an issue at the original trial, where the case was summarily dismissed since the judge felt the law was facially unconstitutional and said so. They remanded it back to the trier of fact to hold the trial on the actual issue of if a sawed off shotgun had a military application. Hence the "absent a showing" language of the holding. If you can show that a gun has military usefulness, it's protected by the Second Amendment. It doesn't have to even be clear and convincing evidence, just SOME showing. If it does NOT have any possible military application, it is NOT protected by the Second Amendment. This means an M-16 is protected, a beretta 9mm pistol is protected, but a single-shot olympic-grade target .22 rifle is NOT protected. So basically, according to Miller, you can ban low-powered non military guns without there being a problem with the Second Amendment, but you can't do that to big, dangerous military-style guns.

Because it places no limits on the type, size, or number of "arms" that may be borne, it clearly refers only to an organized militia serving as the "unlimited" defense of the collective. Only a moron--which the drafters certainly were not--would sanction the unlimited private ownership of arms up to and including artillery pieces and God only knew what might follow.

Let me point you to a few relevant parts of the Second Amendment.

What is quite clear is that it refers to the "right of the people." The people comprises the citizens of this nation. And the citizens comprise the militia. They are one and the same.

Another relevant section is the actual right which is to "keep and bear arms." As I discuss upthread, these arms compose of "ordinary military equipment" as ruled on by US vs. Miller. Interpretations of this range from what the standard US soldier carries (M16A2 assault rifle) up to crew-served weapons (such as the M2 .50cal machine gun) and beyond.

As for unlimited private ownership, that is cleared addressed as well. That part reads "shall not be infringed."

.... that this is the clearly "correct" interpretation. Therefore, I freely admit that this is a largely unresolvable issue, and a reasonably compelling argument can be made for either interpretation, in my opinion.

Now, I haven't exhaustively read every single document ever written by every "founding father." But from everything I know, I remain unconvinced that you can conclusively prove which interpretation is more accurate to the original intent.

I personally believe that the popular attitudes about gun ownership so common in American today are nowhere near the intent of the framers of the constitution - but I have as much evidence to prove that's true as someone else does to prove that the framers intent was to live in the NRA's ideal America: that is to say, none.

There is NO evidence from the founding period in support of an exclusively collective rights argument. However there is plenty of evidence that the founders intended that gun ownership be widespread and that the second amendment referred to an individual right of some sort.


The Militia act of 1792 required that every free white male provide himself with arms and ammunition. The militia acts of the three states cited in Miller vs. US make same requirement. Those are clear indications that the founders desired that firearms ownership be widespread.

Madison proposed grouping the second amendment with the other individual rights. Federalist newspapers of the day carried articles describing the second amendment as providing a right of the people to keep and bear their private arms. Anti-federalists complained that the Bill of Rights was only concerned with individual rights, but no one was making the case for the exclusively collective rights argument for the second amendment. Furthermore the individual states also had individual "right to bear arms" amendments in their Bill of Rights.

The earliest commentators and court decisions support an individual right of some sort. Some early decisions actually were an NRA wet-dream (had there been an NRA at the time)Nunn v. Georgia and Bliss V. Kentucky. Even Aymette, which is often cited by the collective right advocates, makes it clear that although the state legislature may pass laws regulating the manner in which arms may be employed, the right must be inviolably be preserved.

Have you ever been in the military? I spent two years in the Army
during Vietnam. The National Guard guys in the Army had the same
uniforms that said "United States Army" on their uniforms. They can be
under the control of the state or the federal government. The militia
is not part of the federal or state governments. You can form your own
militia of two people if you like. The founding fathers clarified this
in letters and articles many times. The second amendment was written
for the people, not for some state or federal army.

A militia man typically owns his own implements. So I would say yes, private ownership is implied in the second amendment.

The militias at the time of the revolution weren't state militias. They were a bunch of townsfolk who used their hunting rifles for self-defense. They elected their leaders. They were outlawed by the British.

That, and I'm not stupid enough to try to disarm gun owners. They're pretty much all good people.

Anyway, with this government I suspect we'll be needing militias pretty soon ;-)

n/t

since even if SCOTUS did hold the 2nd provides an individual right it would certainly be subject to regulation, as are all other rights.