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"A well regulated Militia, being necessary to the security of a free State": How the Supreme Court Got It Wrong (But Not How You Think)

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Today, in District of Columbia v. Heller, the Supreme Court overturned the DC handgun ban, guaranteeing "an individual right to possess a firearm unconnected with service in a militia." On an applied level, the Supreme Court made the right decision – no American should be prevented from ownership of weaponry. However, the reasoning of both the majority and the minority shows a flawed understanding of the history of the Amendment and of the intent of the Framers of the Constitution.

First, we must start with historical definitions of some terms. Justice Antonin Scalia, in the majority opinion, does a good job defining "keep and bear arms" to mean, well, having weapons and being able to use them. However, his interpretation of a militia is faulty, and his application of a historical militia is faulty in regards to modern society. Scalia quotes Thomas Jefferson, who defined a militia as "every man in it able to bear arms." It is obvious that this definition of a militia would not change over the past two hundred years.

Now we must ask what the purpose of a militia was then, and is now. The US Constitution writes that a militia is "necessary to the security of a free State." (Scalia is correct in his interpretation of "State" as not referring to a state like Massachusetts or North Carolina, but rather a polity, like the United States, North Carolina, or Durham County.) Thus, when coupled with the variety of contemporary state Constitutions which also guarantee a right to bear arms "for the defense of the state" [1776 NC Cons.] or "for the common defense" [1780 Mass. Cons.], the militia was the armed population exercising a right of communal self-defense. That is all that the Constitution protects. Thus, a modern conception of the Second Amendment protecting individual self-defense has no basis in the text or the intent of its writers. (Although nothing in the Constitution would preclude the existence of a right to individual armed self-defense.) This communal self-defense was very widely defined by the Framers, and as such, still should be today. Communal self-defense was not limited to defense against hostile Native American tribes, slave insurrections, or attacks from the French or Spanish, but also, against a tyrannical government. The Framers had just finished a brutal war against a tyrannical power, Great Britain, and were certain that the newly-minted American people would have to fight tyranny again at some point, even with the protections they built into the new American government. Thomas Jefferson wrote in 1787:

God forbid we should ever be twenty years without such a rebellion. ... What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

Joseph Story, a former Justice, referenced by both Scalia's majority opinion and Stevens' dissent, wrote in 1833 that:

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.

This confirms the legal validity of such a natural right. The right of the people to overthrow a tyrannical government is enshrined, too, in the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends,[that is, to "secure certain rights" among which are "life, liberty and pursuit of happiness] it is the Right of the People to alter or to abolish it, and to institute new Government.

The idea of a natural right to abolish a tyrannical government was also common in the political philosophy of the late 1700s, in authors such as Locke and Hobbes. The Framers were indubitably familiar with these authors and agreed with them; Jefferson paraphrased Locke with the phrase "life, liberty and pursuit of happiness" in the Declaration of Independence.

As we decided above, the militia as referenced by the Constitution is still the sum of all the armed citizens. Thus, interpretation of the Second Amendment as applicable only to the National Guard or other state-run citizen-soldier groups is untenable. A few states, such as Alabama, New York, Texas and Virginia have some variety of a "State Defense Force," controlled entirely by the state itself, not the Federal government, which allow any able-bodied citizen of that state to join. These State Defense Forces are the closest modern equivalent of the "well regulated Militia." on the state level, although the Second Amendment would also provide for militias on a more local level. Since militias are not common on every level, as they once were, to allow a militia to arise from the grassroots in the time of crisis, the supplies for a militia must be available, distributed among the people. This is confirmed by the minority opinion in Heller, which states that the meaning of the right to "keep" arms includes keeping the arms personally, rather than in a collective armory. Thus, although the Second Amendment does apply primarily to militias, in doing so, it applies to each individual.

If the militia, that is, everyone in society, have a right to resist tyranny through force, they must be guaranteed the means to do so. That tyranny could include the Federal government, so the Second Amendment must, therefore, guarantee the means to oppose, and defeat, the Federal government. In the eighteenth century, these means were simply the ordinary muskets and rifles that every American farmer and family man would have owned, along with some horses and carts for supplies, and the cannons from the town square. The government could not feasibly control these arms. However, what are the comparable arms in today's world? While it may be troubling to consider, when the Federal government is the potential enemy, the arms which the people may possess must include modern military equipment, such as fighter jets, tanks and rocket launchers. Although I am just as uncomfortable as you are about my neighbor driving a tank, there is no other tenable interpretation of the Constitution.

Justice Scalia, wrote the sentence at the very beginning for the majority of the court, including Chief Justice Roberts, Justice Alito, Justice Thomas, and the swing Justice, Justice Kennedy. However, they simply do not go far enough in their protection of individual liberty. Writing about the current decision in tandem with United States v. Miller (a case in which a ban on sawed-off shotguns was upheld because such shotguns were seen to have no military purpose.), Scalia later writes that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes ." While Scalia acknowledges the prefatory clause of the Second Amendment "A well regulated Militia...," he defangs its meaning with his interpretation of Miller. A militia, in a truly existential battle, simply could not prevail with only a some hunting rifles, a shotgun, and a bunch of pistols. To fulfill the Second Amendment's mandate, the government must respect the civilian right to ownership of military weaponry. The court errs in agreeing that weapons that are "dangerous and unusual" and not "in common use at the time" may be banned. The fact that through the passage of time the citizenry has ceased to possess military-grade weaponry should not, logically, lead to the abandonment of the original intent of the Second Amendment. Ridding the citizenry of their natural right to resist tyranny because "modern developments have limited the degree of fit between the prefatory clause [i.e. A well regulated militia...] and the protected right[i.e. to bear arms] " is not an appropriate place to observe the Justice Warren's "evolving standards ... that mark the progress of a maturing society." A truly mature society would not be so comfortable with its government as to allow it complete control of the citizenry without the check that the Second Amendment provides. Justice Scalia purports to be an Originalist, respecting the original intent of the Constitution. Here, he betrays the logical conclusion of his beliefs in favor of a visceral reaction to the "startling," in his words, idea of one's (rather wealthy) neighbor owning an M1 Abrams or an F-35 Joint Strike Fighter.

Justice John Paul Stevens wrote the first dissent in Heller and was joined by the remainder of the Court, Justice Breyer, Justice Souter and Justice Ginsberg. Stevens rebuts a large portion of the Court's opinion, stating his belief that the Second Amendment applies only to a state militia, and grants individuals the right to keep and bear arms only in the context of that organization, not for self-defense.

Justice Breyer, joined by Stevens, Ginsberg and Souter, dissents as well. Because, as Stevens writes in his dissent, there is no Constitutional right to self-defense, the fact that the District of Columbia's handgun ban and trigger-locking and/or unloading requirement burdens self-defense is irrelevant, because it does not burden the Second Amendment's primary purpose – that of providing for a militia. As justification, Breyer offers Philadelphia's 18th century requirement that gunpowder be stored on the top floor of any building, which resembles in D.C.'s handgun ban both in its public safety purpose and its burden of self-defense. Breyer concludes that the handgun ban has a legitimate purpose and is reasonable because it does not burden the Second Amendment's primary purpose.

Breyer and the liberal wing of the Court dismiss the notion that the militia includes all able-bodied men, in D.C., between ages 18 and 45, out of hand, simply because the respondent, Heller, is 66 years old. This would have been an important point to address, because sidearms do play an important role in military exercise, even under the standard of Miller.

One important salve to the wounds of gun-control supporters remains. "A well regulated militia," remember? As long as the state didn't prevent the militia from functioning as it is supposed to, those two words provide a good amount of leeway for gun control regulations. These could include anything from mandatory gun registration and waiting periods to mandatory firearms training. It can be assumed that a threat, whether foreign or domestic, wouldn't arise without warning, and that citizens could obey the restrictions. These restrictions could help prevent much of the violence that would occur as a result of the greater penetration of dangerous weapons in the population. If localities so desired, gun education could take a place in school curricula to teach students proper respect for firearms. Although these restrictions could never be as strong as the now-unconstitutional D.C. statute, they would provide some protection in that same vein.

No members of the Court decided the Heller case rightly. The liberal camp's reasoning was along the correct path, although they leave open some very important issues that could have led easily to the majority's conclusion. Either way, a rightful interpretation of the Constitution is not served, yet ought to be, either through better jurisprudence or legislative action.

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{"commentId":2062932,"authorDomain":"insert"}

I didn't put my sources in this article (yet?). If you want a source for a claim I make, don't hesitate to ask.

{"commentId":2062932,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
  • 3 votes
Reply#1 - Fri Jun 27, 2008 12:54 AM EDT
{"commentId":2063045,"authorDomain":"CliffDog"}

Scalia has long ago proven he will distort, twist and contort his logic and the Constitution to fit his agenda. Damn activist judges!

{"commentId":2063045,"threadId":"300302","contentId":"1616478","authorDomain":"CliffDog"}
  • 3 votes
Reply#2 - Fri Jun 27, 2008 1:23 AM EDT
{"commentId":2063248,"authorDomain":"jfxgillis"}

insert:

You pretty much nailed the silliness of Scalia's opinion. The whole domestic ursurpation thing is is ridiculous unless the citizenry can match up in firepower, which they can never do under Scalia's scheme.

Nice article.

{"commentId":2063248,"threadId":"300302","contentId":"1616478","authorDomain":"jfxgillis"}
  • 6 votes
Reply#3 - Fri Jun 27, 2008 2:22 AM EDT
{"commentId":2063781,"authorDomain":"djehuty"}

I think I have entirely opposite views to you insert about gun ownership, but just the same I think your argument is entirely sensible. It seems pretty clear that the framers intended that the citizens of the United States should have the right to defend themselves against tyrannical government.

Since the invention of the machine gun, flak jacket, and tank that's going to involve some pretty heavy machinery. Probably out of the price range of the ordinary person. Whereas hunting rifles were useful against armies in 1780.

So, what's the solution? Allow people to own IEDs and black market rocket launchers and AK47s? Do we want people to use armed force against the state should it exceed its power?

I'm pointing out the reality here. If you want an armed citizenry because it gives them leverage against their government then you have to follow through, or you're simply inviting people to "bring a knife to a gunfight" in modern terms.

I'd suggest that few people are really comfortable with that. There are certainly better ways of stopping all but the most genocidal opponents. So does the communal self defence meaning of the Constitution still make any sense?

{"commentId":2063781,"threadId":"300302","contentId":"1616478","authorDomain":"djehuty"}
  • 3 votes
Reply#4 - Fri Jun 27, 2008 6:55 AM EDT
{"commentId":2067322,"authorDomain":"hemphill"}

I think it does still make sense. At the end of the day a guy with a hunting rifle can still engage the military, at least in a guerilla sense.

{"commentId":2067322,"threadId":"300302","contentId":"1616478","authorDomain":"hemphill"}
  • 1 vote
#4.1 - Fri Jun 27, 2008 3:36 PM EDT
{"commentId":2067611,"authorDomain":"insert"}
So, what's the solution? Allow people to own IEDs and black market rocket launchers and AK47s? Do we want people to use armed force against the state should it exceed its power?

Exactly. I wouldn't pretend to know the answer. I'd be very uncomfortable if my neighbors were making IEDs in their basement.

If we, as a society, think that the 2nd Amendment's purpose to guarantee the right of the people to overthrow a tyrannical government is outdated, then we can throw it out. But we must make that decision consciously and democratically.

{"commentId":2067611,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
  • 1 vote
#4.2 - Fri Jun 27, 2008 4:10 PM EDT
{"commentId":2069530,"authorDomain":"djehuty"}
If we, as a society, think that the 2nd Amendment's purpose to guarantee the right of the people to overthrow a tyrannical government is outdated, then we can throw it out. But we must make that decision consciously and democratically.

Yes, insert. 100%. And I sympathise with Hemphill's point of view - but I think it's a mistake.

Here's the thing. US citizens have proven over the last 7 years that a well managed propaganda campaign can take away their rights without much protest. Sure, it's not yet Krystalnacht and with a bit of luck a moderate will be elected this time around, but suppose in November Bush did a Mugabe and said he wasn't accepting the results of the election so he's declaring a state of emergency and calling out the national guard. No one would accept it, right? Guard commanders would refuse their orders and the military would go and arrest him. Maybe.

But that's not how it would happen. Mugabe can do that because he's been building up a cadre of crazy brownshirt-equivalents for years. If you wanted to seize power in the US you'd do it by rigging the voting process, faking a Reichstag fire and blaming it on whatever group was a good scapegoat (they'd be called "terrorists" whoever they were and they'd "hate our freedoms"). Then the state of emergency would come before November so that the election had to be "unfortunately" postponed. It never looks like democracy has been out and out stolen, but it continually slips out of grasp...

So in this situation - which I see as the actual potential threat of tyranny in the US, however remote - the Waco style shootout in the hills and the hunting rifles and so on are never an issue. That made sense before there were 1 million people in the US Army armed with trillions of dollars of weaponry, and in any case the outcome of that even if successful (surely unlikely and at great human cost) is barbarism.

The actual solution to that worst case scenario of overthrow of democracy in the US is to (peacefully) protest at the very first step. It's way more important to be writing letters to congressmen about Telecom immunity and torture in GTMO than it is to be buying a rifle so you can hole up in the hills when the worst happens, because by then it's too late.

{"commentId":2069530,"threadId":"300302","contentId":"1616478","authorDomain":"djehuty"}
  • 4 votes
#4.3 - Fri Jun 27, 2008 9:08 PM EDT
Reply
{"commentId":2063939,"authorDomain":"mwestenfelder"}

Well I guess if the US continues down the present road, common Americans might one day thank Scalia on their knees that he made sure that Americans can defend themselves against attacks on the Constitution and the Liberties of every living Citizen.

{"commentId":2063939,"threadId":"300302","contentId":"1616478","authorDomain":"mwestenfelder"}
  • 2 votes
Reply#5 - Fri Jun 27, 2008 8:02 AM EDT
{"commentId":2064714,"authorDomain":"Griff69"}

"A well regulated militia," remember? As long as the state didn't prevent the militia from functioning as it is supposed to, those two words provide a good amount of leeway for gun control regulations.

Except that, as the decision quite rightfully points out, those words are quoted from a subordinate clause which merely notes why the Second is so vital. That clause in and of itself neither grants any power nor restricts any power. It could be removed entirely without changing the meaning of the amendment at all.

{"commentId":2064714,"threadId":"300302","contentId":"1616478","authorDomain":"Griff69"}
  • 1 vote
Reply#6 - Fri Jun 27, 2008 10:26 AM EDT
{"commentId":2067627,"authorDomain":"insert"}

It provides context for the ambiguous "the right of the people to keep and bear arms shall not be infringed." It tells us why that right is necessary and how it is to be used.

{"commentId":2067627,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
  • 1 vote
#6.1 - Fri Jun 27, 2008 4:13 PM EDT
{"commentId":2067656,"authorDomain":"insert"}

The amendment is poorly worded, yes, but why would the Framers put that prefatory clause in their (generally) very concise Bill of Rights? The clause's simple presence guarantees that it does inform and change the meaning of the amendment by clarifying it. Read the opinion, the two dissents do a good job of explaining the history of the amendment and how the text changed in the months leading to ratification. (Hint: The Framers considered various other wordings, which included a self-defense justification, but finally decided on the current one. This must have been for a reason.)

{"commentId":2067656,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
  • 1 vote
#6.2 - Fri Jun 27, 2008 4:15 PM EDT
{"commentId":2072005,"authorDomain":"iarnuocon"}

How is "the right of the people to keep and bear arms" ambiguous? Where's the ambiguity? "The people" have a "right" to "keep and bear arms." The government "shall not infringe" that right. That's not remotely ambiguous.

Nor does the prefatory clause tell us f*ck-all about how the people are to use that right. Telling the people how to use the right would be an infringement on it. Scalia goes into great detail on the wording of the amendment, and I fail to see how your "analysis" recognizes any of the points made. Certainly you are correct that the prefatory clause announces a purpose for which the Framers hoped the unrestricted access to firearms would foster, but there is no way in hell that you can look at the wording of the 2nd Amendment and claim that that purpose is imperative or a precondition to exercising the right.

Further, you simply beg the question in your article-- Now we must ask what the purpose of a militia was then, and is now. ...the militia was the armed population exercising a right of communal self-defense. That is all that the Constitution protects. In point of fact, the Amendment doesn't state anything about protecting the militia. It states the right of the people to keep and bear arms shall not be infringed. If they had meant to protect that right only as a means of communal self-defense, they would have limited the protection of the 2nd. They did not. They merely opened the Amendment with an announcement of the condition which they hoped to foster by virtue of broad protection of the people's right to arms.

You then further compound your error with this whopper-- These State Defense Forces are the closest modern equivalent of the "well regulated Militia." on the state level, although the Second Amendment would also provide for militias on a more local level. Since militias are not common on every level, as they once were, to allow a militia to arise from the grassroots in the time of crisis, the supplies for a militia must be available, distributed among the people. "State Defense Forces" are not the "closest modern equivalent to the 'well regulated Militia." You completely ignore the difference between standing armies, the select militia and the general militia in order to reach this conclusion. As Scalia notes, at the time of the framing, the general militia was the body of men between the ages of 17 and 45 who were capable of bearing arms. That understanding of the meaning of the general militia was codified under the First Militia Act in the late 1800s. It has since been confirmed in modern times by the US Code in 10 USC 311, which states-- The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

Note that the militia, as codified for the last century, and as understood for the century preceding that, doesn't require that its members be either armed or organized. The law simply recognizes that the militia is comprised of a body of persons within a certain age range, and the 2nd Amendment hopes to foster their familiarity with firearms by prohibiting infringement on their pre-existing right ot own and carry them.

These are the same old arguments made by gun grabbers that the 2nd only protects the right to guns if they're used in a militia, and it's an interpretation that is still just as wrong today as it has been over the past 70 years, with the only difference being that now there is a majority Supreme Court decision flatly stating that the interpretation is wrong.

And frankly, relying on the dissents as somehow convincing in light of Justice Stevens' incredible pronouncement that the Framers didn't intend to limit government interference in the regulation of its citizens is misguided, at best.

{"commentId":2072005,"threadId":"300302","contentId":"1616478","authorDomain":"iarnuocon"}
  • 3 votes
#6.3 - Sat Jun 28, 2008 9:32 AM EDT
{"commentId":2072658,"authorDomain":"insert"}
How is "the right of the people to keep and bear arms" ambiguous? Where's the ambiguity? "The people" have a "right" to "keep and bear arms." The government "shall not infringe" that right. That's not remotely ambiguous.

A few ambiguities that come to mind:

What, exactly, are encompassed by 'arms?'

Are restrictions on the keeping and bearing of arms allowed if the intrinsic right is not, itself, compromised?

Telling the people how to use the right would be an infringement on it.

No. You're begging the question. If the right itself is contingent on its use being primarily in regards to militia service, then that contingency is not an infringement of the right because the contingency is a part of the right.

Additionally, no rights are immune from some legal infringement. Forbidding me from screaming fire in a crowded theatre, for instance, is an infringement of my first amendment right to have my speech not be restricted by the government.

In point of fact, the Amendment doesn't state anything about protecting the militia.

Uhhh. Yeah it does. Check out: "A well regulated militia being necessary to the security of a Free State"

If they had meant to protect that right only as a means of communal self-defense, they would have limited the protection of the 2nd. They did not. They merely opened the Amendment with an announcement of the condition which they hoped to foster by virtue of broad protection of the people's right to arms.

Is that merely conjecture, or do you have any textual or historical sourcing for it? The Founders really didn't say much of anything, that I've seen, about a need to protect an individual right to bear arms for immediate self-defense. They didn't ban it, or anything, but they didn't think that its perpetual maintenance was necessary for the purpose of the Bill of Rights.

(This is important.) The purpose of the Bill of Rights was to "ensure the beneficent ends of its institution." (From the Preamble to the BoR.) Thus, all the amendments in the BoR serve to keep the government from becoming tyrannical and oppressing the people. A right to bear arms for individual self-defense wouldn't fit well in the BoR anywhere other than the 9th Amendment. I'm not saying such a right doesn't exist, but it isn't included in the Second Amendment.

"State Defense Forces" are not the "closest modern equivalent to the 'well regulated Militia." You completely ignore the difference between standing armies, the select militia and the general militia in order to reach this conclusion. As Scalia notes, at the time of the framing, the general militia was the body of men between the ages of 17 and 45 who were capable of bearing arms. That understanding of the meaning of the general militia was codified under the First Militia Act in the late 1800s.

With that "whopper," I simply wish to debunk the notion that the National Guard is the Second Amendment's 'well-regulated militia.' I recognize, even in the paragraph you quote, that the militia is everybody capable of bearing arms - how else would militias be spontaneously formed in threatened communities?

Besides, I didn't say that SDFs are the closest modren equivalent to the 'well regulated militia,' but rather the closest equivalent on the state level.

the 2nd Amendment hopes to foster their familiarity with firearms by prohibiting infringement on their pre-existing right ot own and carry them.

Again, do you have any historical evidence to show that this is an attitude that the Founders shared? I don't think that guaranteeing familiarity with weapons was their reason for passing the 2nd Amendment.

As I read about the history of the Second Amendment and militias, I see in quotes from the Founders again and again a single trope: private weapon ownership is for the purpose of militia service. I don't see anything about individual self-defense. I might just have missed it, after all, I can't prove a negative, so you would do well to find me some historical evidence for this individual right.

These are the same old arguments made by gun grabbers that the 2nd only protects the right to guns if they're used in a militia

Remember, the militia doesn't have to be a standing army, and it is every male of a certain age in the United States. So, if the "gun grabbers" had had a better understanding of the actual meaning of a militia, they may have abandoned that tack: it would guarantee the right of every male 18 - 45 to bear most arms.

And frankly, relying on the dissents as somehow convincing ... is misguided

When 4/9 of the Supreme Court agrees with an opinion, I'd say it is legally defensible.

Justice Breyer's references to restrictions on gunpowder storage show that, in the Founders' time period, the state (i.e. the government, not "the state" like Pennsylvania) was free to restrict the use of weaponry for immediate self-defense. If someone was invading your house, you might not be able to run up to the attic to get enough gunpowder to fire a second shot. However, if the French were invading, you would have time to go and grab the barrel of gunpowder. This shows that the Founders simply weren't interested in protecting a right to individual self-defense.

{"commentId":2072658,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
  • 2 votes
#6.4 - Sat Jun 28, 2008 11:39 AM EDT
{"commentId":2073145,"authorDomain":"Griff69"}

Additionally, no rights are immune from some legal infringement. Forbidding me from screaming fire in a crowded theatre, for instance, is an infringement of my first amendment right to have my speech not be restricted by the government.

This piece of drivel is really starting to piss me off. It was BS when it was first concocted and it's BS every time the anti-rights crowd pulled it out of their collective asses. ALL rights are absolute, or they are not rights, they are privileges. Does your right to freedom of religion apply only if you're Christian? Does habeas corpus apply only if you're not in Gitmo?

Yelling "Fire!" in a crowded theatre is a particularly ignorant example of free speech, because it's NOT an example of free speech. Unless the theatre really is on fire, it is neither a statement of fact, nor an expression of opinion. "The theatre is is ugly!" would be an expression of opinion, and would be protected. However, at that point you're going to run into other issues. You have contracted with that theatre to view the entertainment, just as the other patrons have. Your protected speech will, quite likely, rapidly become disruptive, and violate the assumed contract you have entered into, generally leading to your ejection from said theatre.

{"commentId":2073145,"threadId":"300302","contentId":"1616478","authorDomain":"Griff69"}
  • 3 votes
#6.5 - Sat Jun 28, 2008 1:00 PM EDT
{"commentId":2073334,"authorDomain":"iarnuocon"}

What, exactly, are encompassed by 'arms?' Given that they're carried, I think we can eliminate all the normal hobgoblins trotted out by those who decry the right-- nuclear weapons, tanks, F-16s. In fact, I'm pretty sure the only ambiguity that could be pointed to in this regard involve man-portable weapons that were not foreseen at the time-- machine-guns and the like.

Are restrictions on the keeping and bearing of arms allowed if the intrinsic right is not, itself, compromised? Would you say that the wording of the First Amendment is likewise ambiguous because of that question? I wouldn't.

If the right itself is contingent on its use being primarily in regards to militia service, then that contingency is not an infringement of the right because the contingency is a part of the right. Here's where we have to fall back on plain English. The Amendment does not make the right contingent. The prefatory clause is not a contingency which has to be fulfilled in order to exercise the right. If you think it does, where is the imperative phrasing that forces such contingency? I don't see it. Neither did the court.

>In point of fact, the Amendment doesn't state anything about protecting the militia.

Uhhh. Yeah it does. Check out: "A well regulated militia being necessary to the security of a Free State" Uhhh. No it doesn't. The militia isn't what's protected from infringement. It's "the right of the people to keep and bear arms shall not be infringed," not "the right of the states to keep and organize a militia shall not be infringed." Hell, it's not even "the right of the people to keep and bear arms such that foster a militia as determined by the state shall not be infringed. You've tried to shoehorn the latter meaning into a sentence which clearly does not bear that weight.

Is that merely conjecture, or do you have any textual or historical sourcing for it? Scalia specifically addresses the common law right to arms for self-defense which we inherited from Britain. Read the decision. It goes into quite a bit about the reasons for the Amendment, which include commentary both before and after ratification, as well. iirc, start about page 29. And of course, there are the various writings of the Framers themselves on the subject.

I didn't say that SDFs are the closest modren equivalent to the 'well regulated militia,' but rather the closest equivalent on the state level. Consider the specific complaint withdrawn, then. Although I am forced to wonder how you can claim that the militia consists of the body of the people capable of bearing arms, and simultaneously that the liberal wing of the court is on the right path in suggesting that the right to keep and bear arms is reserved only to the militia (in the sense they use the term-- the "select militia" which the Framers disavowed).

do you have any historical evidence to show that this is an attitude that the Founders shared? Again, the decision goes into this at some length. There's a variety of commentary which supports this claim, some of which I have already linked to. There are some particularly cogent remarks made on pages 45 and 46 of the decision regarding the condition the Framers hoped to foster. That should, at the very least, get you started on the road to discovery.

I don't see anything about individual self-defense. The decision notes much which touches on the issue. See pages 29 and 30. Adams, Jefferson, et al, recognizes the right of the individual to have arms for self-defense, and wrote on more than one occasion to that effect.

When 4/9 of the Supreme Court agrees with an opinion, I'd say it is legally defensible. Nope. 4/9 of the Court sharing an opinion is legally meaningless. Only 5/9 and greater has any legal meaning.

Justice Breyer's references to restrictions on gunpowder storage show that, in the Founders' time period I'll have to re-read it. It didn't strike me as particularly well-argued at the time, as opposed to Scalia's argument for the self-defense angle. I'll have to get back to you on it, though, as I'm on my way out to lunch... ;)

{"commentId":2073334,"threadId":"300302","contentId":"1616478","authorDomain":"iarnuocon"}
  • 2 votes
#6.6 - Sat Jun 28, 2008 1:31 PM EDT
{"commentId":2074791,"authorDomain":"insert"}
Yelling "Fire!" in a crowded theatre is a particularly ignorant example of free speech, because it's NOT an example of free speech. Unless the theatre really is on fire, it is neither a statement of fact, nor an expression of opinion. "The theatre is is ugly!" would be an expression of opinion, and would be protected. However, at that point you're going to run into other issues. You have contracted with that theatre to view the entertainment, just as the other patrons have. Your protected speech will, quite likely, rapidly become disruptive, and violate the assumed contract you have entered into, generally leading to your ejection from said theatre.

But it's still speech. And it is legally abridged.

ALL rights are absolute, or they are not rights, they are privileges. Does your right to freedom of religion apply only if you're Christian? Does habeas corpus apply only if you're not in Gitmo?

No. A privilege is granted to some people and not others, and is usually contingent on some behavior or status. Nobody is allowed to yell "Fire!" in a crowded theatre. Whatever free speech encompasses, everyone has that right.

I'll respond to you, iarnuocon, in the next comment.

{"commentId":2074791,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
    #6.7 - Sat Jun 28, 2008 5:53 PM EDT
    {"commentId":2081427,"authorDomain":"insert"}

    Sorry I didn't respond earlier. My computer crashed yesterday, and I was too tired afterward to respond.

    Given that they're carried, I think we can eliminate all the normal hobgoblins trotted out by those who decry the right-- nuclear weapons, tanks, F-16s. In fact, I'm pretty sure the only ambiguity that could be pointed to in this regard involve man-portable weapons that were not foreseen at the time-- machine-guns and the like.

    It would be informative to consider any precedent (if any exists) regarding individual "keeping and bearing" of cannon (or naval ships). If it was allowed, then I think man-portability is irrelevant, and all military equipment ought to be covered. After all, if we accept the anti-tyrannical and insurrectionist interpretation of the Second Amendment, then all military equipment must be covered. If such precedent doesn't exist, well, we're left out in the cold about tanks, etc.

    Would you say that the wording of the First Amendment is likewise ambiguous because of that question? I wouldn't.

    Well, of course the First Amendment is ambiguous. That's why we've had to have all these contentious cases like Frederick v. Morse, Tinker v. Des Moines, Brandenburg v. Ohio and Miller v. California. To name a few.

    I'll have to re-read it. It didn't strike me as particularly well-argued at the time, as opposed to Scalia's argument for the self-defense angle.

    What I got from that particular argument was that, contemporaneously with the Framers, self-defense was severely limited for public safety purposes. If the Second Amendment really made self-defense unassailable, requiring the storage of a necessary component of self-defense in an inconvenient area of the home would have been unacceptable.

    Nope. 4/9 of the Court sharing an opinion is legally meaningless. Only 5/9 and greater has any legal meaning.

    Right, it's legally meaningless, but it's also legally defensible as a reasonable legal view. After all, four of the top legal scholars in the land agree with you.

    Here's where we have to fall back on plain English. The Amendment does not make the right contingent. The prefatory clause is not a contingency which has to be fulfilled in order to exercise the right. If you think it does, where is the imperative phrasing that forces such contingency? I don't see it. Neither did the court.

    The clause says why the right is to be protected. If the Founders had wanted to protect the right for the purpose of allowing self-defense, they would have said so.

    Uhhh. No it doesn't. The militia isn't what's protected from infringement. It's "the right of the people to keep and bear arms shall not be infringed," not "the right of the states to keep and organize a militia shall not be infringed." Hell, it's not even "the right of the people to keep and bear arms such that foster a militia as determined by the state shall not be infringed. You've tried to shoehorn the latter meaning into a sentence which clearly does not bear that weight.

    The state doesn't have to organize or even approve the militia. Remember, the militia is everybody. (At least in a modern interpretation, women would have to be included.) As I've said, my interpretation of the law would have still have struck down the DC law. It just wouldn't have invented a right to bear arms for the purpose of self-defense.

    Scalia specifically addresses the common law right to arms for self-defense which we inherited from Britain. Read the decision. It goes into quite a bit about the reasons for the Amendment, which include commentary both before and after ratification, as well. iirc, start about page 29. And of course, there are the various writings of the Framers themselves on the subject.

    Your link to GunCite doesn't really help your case much. The majority of the quotes address solely the possession of arms to defend against tyranny. A few others simply confirm a right to bear arms without any context; not saying "for all purposes" or "for individual self-defense" or anything in that vein. The sole exception would be:

    [C]onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.

    --Rep. Roger Sherman. While this does give your argument some credence, the lack of other quotes speaking on the topic cast some doubt on the idea of making broad national policy based on a quote by a B-list Founder. I would consider this on about the same level of sub-optimal evidence as the gunpowder-in-the-attic thing.

    Regarding Scalia's p.29 and 30, the quotes from other state Constitutions serve as evidence in both directions. If arms for self-defense were on the mind of the various Founders, why didn't they put it in the Second Amendment?

    Although I am forced to wonder how you can claim that the militia consists of the body of the people capable of bearing arms, and simultaneously that the liberal wing of the court is on the right path in suggesting that the right to keep and bear arms is reserved only to the militia (in the sense they use the term-- the "select militia" which the Framers disavowed).

    The possession and use of arms for self-defense isn't protected, while the possession and use of arms with some purpose related to use in a militia is protected. Even to the extent that familiarization with weapons so that they could be used efficaciously in the militia would be protected. There are very few cases where the application of the Second Amendment right would differ between our respective interpretations. For example, if we take a broad view of "arms," I suppose some sorts of defensive weaponry, like landmines, have no purpose in a militia, but could be used in self-defense. Thus, landmines could be banned even if M-16s could not be, under my interpretation. Even individual possession for the purpose of familiarization wouldn't make sense in a militia context.)

    The next seemingly definitive source is Abbott, from 1880, on page 46 of Scalia's opinion. Abbott makes the same leap of logic that you (and Scalia) do, but his opinion is of little value because it is many years after the Bill of Rights was ratified, and not terribly removed from Miller, which had the opposite conclusion.

    {"commentId":2081427,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
      #6.8 - Sun Jun 29, 2008 8:40 PM EDT
      {"commentId":2081509,"authorDomain":"insert"}

      To add one more thing, iarnuocon, I think a major reason why the Founders didn't put any right to bear arms for the purpose of self-defense in the Bill of Rights was because it was outside the scope of that document. Every right in the Bill of Rights addresses protections added at the behest of the Anti-Federalists to guarantee the safety of the people in the face of a potentially tyrannical Federal government. Self-defense is unrelated to safety from the government, which is what the Founders meant to protect. It would be a non-sequitur for them to have included such a right in the Bill of Rights.

      {"commentId":2081509,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
        #6.9 - Sun Jun 29, 2008 8:56 PM EDT
        Reply
        {"commentId":2064904,"authorDomain":"GreyWolf"}

        Nice article, I will return for a second reading and in-depth analysis. But thank you for prompting an actual discussion (to counter the usual Internet standard of emotionally-laden one-liners.)

        On first reading I have to applaud you for highlighting the militia aspect of this amendment, because while everybody argues both sides of the gun argument, I keep sitting here thinking, "Where is my militia?!?"

        I agree with Djehuty, "It seems pretty clear that the framers intended that the citizens of the United States should have the right to defend themselves against tyrannical government."

        I don't trust my federal, state, county or city government to not be "tyrannical," and I have little faith that any one of those entities would provide help in defense from another one of those entities. Where is a community militia? The state national guard can now be under federal control, that's gone, they won't protect us, no reason for me to join Bush's army, our state national guard may be the ones rounding up community members (citizens). If the state starts rounding up "suspicious people," or "suspects", there would be individual scuffles and isolated violence, but on a whole US citizens would march together into a concentration camp. "Where is my militia?!?"

        I guess I'm going to be starting a militia, and arguing in court that, contrary to Griff69's opinion in #6, the heart of the 2nd amendment actually protects our right to organize citizen militias.

        {"commentId":2064904,"threadId":"300302","contentId":"1616478","authorDomain":"GreyWolf"}
        • 1 vote
        Reply#7 - Fri Jun 27, 2008 10:51 AM EDT
        {"commentId":2067689,"authorDomain":"insert"}
        But thank you for prompting an actual discussion (to counter the usual Internet standard of emotionally-laden one-liners.)

        You're welcome. I suspect that one person at the AP reads the opinion and writes a summary, which is the basis for every other internet article about the Supreme Court decision. It's really aggravating to see the same thing quoted again and again, with other important details ignored.

        I don't trust my federal, state, county or city government to not be "tyrannical," and I have little faith that any one of those entities would provide help in defense from another one of those entities. Where is a community militia? The state national guard can now be under federal control, that's gone, they won't protect us, no reason for me to join Bush's army, our state national guard may be the ones rounding up community members (citizens). If the state starts rounding up "suspicious people," or "suspects", there would be individual scuffles and isolated violence, but on a whole US citizens would march together into a concentration camp. "Where is my militia?!?"

        I agree. And good luck with the militia.

        {"commentId":2067689,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
        • 2 votes
        #7.1 - Fri Jun 27, 2008 4:19 PM EDT
        Reply
        {"commentId":2065236,"authorDomain":"douglasq"}
        Here, he betrays the logical conclusion of his beliefs in favor of a visceral reaction to the 'startling,' in his words, idea of one's (rather wealthy) neighbor owning an M1 Abrams or an F-35 Joint Strike Fighter.

        Ya know, my neighbor got an F-35 Joint Strike Figher the other day. Brought it home, has it parked in his driveway. Washed and waxed it last Saturday.

        I thought about getting one, too, but then I thought, the military-industrial complex is going to come out with the 2009 models soon (crossing my fingers for iPod integration), so I think I may wait. I mean, wouldn't my neighbor be jealous if his "old and busted-up" 2008 was parked two doors down from my "new hotness" 2009.

        Yeah, I think I'll wait.

        {"commentId":2065236,"threadId":"300302","contentId":"1616478","authorDomain":"douglasq"}
        • 8 votes
        Reply#8 - Fri Jun 27, 2008 11:26 AM EDT
        {"commentId":2065527,"authorDomain":"politicalcenter"}
        On an applied level, the Supreme Court made the right decision – no American should be prevented from ownership of weaponry.

        Would you support the decision if Obama had not done so? Werre you really pro-Second Amendment? And what do you think Obama would say about your analysis?

        {"commentId":2065527,"threadId":"300302","contentId":"1616478","authorDomain":"politicalcenter"}
        • 1 vote
        Reply#9 - Fri Jun 27, 2008 12:01 PM EDT
        {"commentId":2067768,"authorDomain":"insert"}
        Would you support the decision if Obama had not done so?

        Yes. I supported the decision and had thought through the issues before I knew what Obama's stance was.

        Werre you really pro-Second Amendment?

        Uhh... I've been over my feelings on the Amendment at length above. Do you think I'm lying?

        And what do you think Obama would say about your analysis?

        I don't know. I don't care. I think I'm right with my analysis, and while I would be interested in criticism from Constitutional scholars, I wouldn't value Obama's opinion any more than I would, say, Erwin Chemerinsky's.

        I support Barack Obama, yes, but I don't idolize him. I've refrained from volunteering for his campaign, and he was only by third choice in the Democratic race, after Bill Richardson and John Edwards.

        I'm confident enough in my opinions to be able to disagree with my candidate of choice. His opinions are not mine, and mine are not his. And anyways, it's not like McCain agrees with my interpretation of the Second Amendment either... he's in the same school as Scalia, et al.

        {"commentId":2067768,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
        • 3 votes
        #9.1 - Fri Jun 27, 2008 4:29 PM EDT
        {"commentId":2076212,"authorDomain":"politicalcenter"}

        I think McCain is different, and also think that because he is not a lawyer, Obama is one leg up on him. Unfortunately. Because then McCain must depend on those Republicans who are lawyers. He needs a few independents.

        I am not necesarily for gun control either. But as noted by others, Obama is far from someone who we would expect to make these Second Amendment statements. At least those of us who are not Obama supporters. For those who are, they bend with the wind of whatever is behind.

        {"commentId":2076212,"threadId":"300302","contentId":"1616478","authorDomain":"politicalcenter"}
        • 1 vote
        #9.2 - Sat Jun 28, 2008 10:00 PM EDT
        {"commentId":2076272,"authorDomain":"insert"}
        I think McCain is different, and also think that because he is not a lawyer

        Bush isn't a lawyer, and he sure was different. In a bad way.

        Hillary Clinton, on the other hand, is a lawyer. And you liked her. So what's wrong with being a lawyer/why is McCain pitiable for not being a lawyer?

        {"commentId":2076272,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
          #9.3 - Sat Jun 28, 2008 10:10 PM EDT
          Reply
          {"commentId":2081278,"authorDomain":"veganima"}

          For the security of a Free State, do you have to carry your guns in the street? Is it not that, if a tyrant State should happens, you will not have time to go home and get the gun? I will say more, Bush clearly usurped some of the most important Constitutional Rights, he corruptly stole millions for his friends in corporations like Haliburton, how many of you took the gun to go save the Free State? How many of you even went to the street and protest? How many of you voted him? How many of you would vote him again?

          {"commentId":2081278,"threadId":"300302","contentId":"1616478","authorDomain":"veganima"}
          • 1 vote
          Reply#10 - Sun Jun 29, 2008 8:17 PM EDT
          {"commentId":2081293,"authorDomain":"djehuty"}

          Yes!

          {"commentId":2081293,"threadId":"300302","contentId":"1616478","authorDomain":"djehuty"}
            #10.1 - Sun Jun 29, 2008 8:19 PM EDT
            {"commentId":2081326,"authorDomain":"Griff69"}

            For the security of a Free State, do you have to carry your guns in the street? Is it not that, if a tyrant State should happens, you will not have time to go home and get the gun?

            "Could you hold on a moment, officer. I'm gonna go get my gun, and then you can arrest me for saying Bush is an @!$%#."

            how many of you took the gun to go save the Free State?

            Not sure what this refers to. Could you expand?

            How many of you even went to the street and protest?

            I did.

            How many of you voted him?

            Not I

            How many of you would vote him again?

            Not I

            {"commentId":2081326,"threadId":"300302","contentId":"1616478","authorDomain":"Griff69"}
              #10.2 - Sun Jun 29, 2008 8:25 PM EDT
              {"commentId":2081488,"authorDomain":"insert"}
              how many of you took the gun to go save the Free State?

              Don't own a gun.

              How many of you even went to the street and protest?

              I did.

              How many of you voted him?

              I definitely didn't vote for Bush in 2000 or 2004.

              How many of you would vote him again?

              I didn't vote for Bush then, and I wouldn't do it now. I won't vote for a third Bush term either -- I'm voting Obama.

              You're exactly right, Veganima.

              {"commentId":2081488,"threadId":"300302","contentId":"1616478","authorDomain":"insert"}
                #10.3 - Sun Jun 29, 2008 8:52 PM EDT
                Reply
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