michuncle

With all the heat generated by the Second Amendment’s true meaning, I decided to go back and read the exact words. In the course of reading the amendment, I re-read all of the original ten amendments. They are as follows:

Amendment I
Congress shall make no law respecting an 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 grievances.

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.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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.

Reading all of the amendments as a “whole piece of cloth”, patterns emerge. Each amendment is a single sentence (some short, some long and convoluted). In Every case, the subject of the amendment appears at the beginning of the sentence.

The second, third, ninth and tenth amendments are “short” in comparison to the others. The eighth amendment is short as well, but stands out by being a comment regarding capital, criminal and civil cases mentioned in the fifth, sixth and seventh amendments. Disregarding the second amendment for a moment, can anyone argue that the subject of the third amendment is not “soldiers”? That the ninth amendment’s subject is “certain rights” as mentioned in the Constitution? That the tenth amendment’s subject is “powers” not delegated by the Constitution or prohibited to the states?

If these observations are correct, the subject of the Second Amendment must be “militia” (“a well regulated” one). If the intent of the Framers was simply the freedom to own fire arms, why make any references to a “militia” or “state”?

Following the sentence structure of the other nine amendments, the Second Amendment should then read: “[T]he right of the people to keep and bear arms, shall not be infringed”. Simple and unambiguous (if that’s what the Framers intended)…

The second amendment consists of twenty-seven words to form one sentence. I find it hard to believe that the first thirteen words (as written by the Framers) have absolutely no meaning and that only the last fourteen words have consequences.

ninja.of.love

The efficacy of this measure has been absolutely ignored. A person willing to commit murder, possibly involved in drugs or gangs as many DC murders are, is going to find a straw buyer or a second-hand gun and buy it illegally. If they're a convicted felon already, this is how they'll arm themselves regardless of the ban. The DC ban, aside from being illegal, is an ineffective restriction. The city's crime rate is very high and has mirrored national trends, suggesting that the city's crime fluctuates independent of gun legislation.

The single most effective piece of legislation as far as crime in the United States is concerned would be decriminalization of illegal drugs. Just as alcohol's prohibition in the first part of the 20th century fueled gangs, illegal drugs provide the financial backbone of gang life in America. Using the law to steal the economic motivation for gangs will do more to stop gang violence (blamed on half of all homicides in LA) than disarming citizens who CHOOSE to obey gun laws. The tax revenue from recreational drugs could be used to finance new police units, more officers, and better equipment. There are 200 million guns on the street in this country and you can't take them all back.

parent2noles

All machine guns are required to be registered with the federal government. This is regarded, to date, as a "reasonable regulation" of a person's right under A2.

The phrasing of A2 is not unusual. Here's one analysis: The Commonplace Second Amendment

mini

"Federal law already defines tanks, nukes, RPGs and WMDs as "destructive devices" that do not qualify under Amendment #2."

And those laws are likely unconstitutional under the Second Amendment. (If they are not "destructive", they are hardly likely be useful in defense against government depradations.)

The intent of the framers is somewhat difficult to determine, because those people we call "framers" had very different opinions in 1776, in 1789-1791, and then later in 1800. As concerns religion for example, the authors of the Declaration come across as some kind of deists, nominally Christian in some cases, but relatively freethinking believers. Those same folks, when it came to the Constitution, and knowing that every single charter and constitution in the 13 colonies appealed to a Supreme Being, intentional and conspicuously (and with full knowledge of Thomas Paine's work) left all appeal to such a being as author of the State entirely out, and the only reference to religion is a negative one (no religious tests). By 1801, with first major religious revival, these same folks often come across as relatively conservative Protestants. The period we call the "Constitutional Period" (1787-1791) is about as close to a radical atheist period we find in American history.

Similarly in this regard, when the Continental Army was disbanded, many of the framers fervently hoped (and expected) that there would never be a standing army again. The idea of the 2nd Amendment may have been to enable citizens to protect themselves against the depradations of a future one. But not two years after the Bill of Rights, after major defeats of state militia and U.S. volunteers by Indians in Ohio, Washington felt called upon to reconstitute a standing army. The point being that, even in a short period, in 1787, 1791, and 1795, the very same people might have had very different intentions.

parent2noles

From the May 6, 2007 edition of the New York Times: http://www.nytimes.com/2007/05/06/us...pagewanted=all

The decision in Parker has been stayed while the full appeals court decides whether to rehear the case.

Should the case reach the Supreme Court, Professor Tribe said, “there’s a really quite decent chance that it will be affirmed.”

parent2noles

I sincerely doubt your rather extreme suggestion would survive the "reasonableness" test. Even the staunchest NRA member would never tolerate proliferation of WMDs under A2.

Case law was consistent in the personal right view up until 1939 when a poorly crafted decision created the current state of confusion. At least one notable case prior to 1939 involved attempts to keep firearms from the hands of former slaves after the Civil War.

I believe A2 will be clarified and affirmed as a personal right subject to reasonable regulation. This is a position I believe we can all live with.

liable

It depends on the relevance of the 2nd Amendment. The NRA crowd always talks about the use of arms to "resist government". I personally believe we should toss the 2nd out, however if these guys really want to resist the government what good is a handgun gonna do them.

parent2noles

Resisting government tyranny is perhaps the original and central purpose of the right. Secondary aspects include self defense and preservation and sporting purposes.

One pistol, one rifle, it really doesn't matter. The point is you have a right to own and use one or not. It's all up to you (assuming you are not a convicted felon, domestic abuser, drug user, subject to court-ordered restraint, determined to be mentally ill, etc).

Here's an interesting quote:

The last time the court examined the meaning of the Second Amendment was in a 1939 case in which two men claimed the amendment gave them the right to have sawed-off shotguns. A unanimous court ruled against them.

Gun control advocates say the 1939 decision in U.S. v. Miller settled the issue in favor of a collective right. Gun rights proponents say the decision has been misconstrued.

Chief Justice John Roberts has said the question has not been resolved by the Supreme Court. The 1939 decision ''sidestepped'' the issue of whether the Second Amendment right is individual or collective, Roberts said at his confirmation hearing in 2005.

''That's still very much an open issue,'' Roberts said.

From: Supreme Court Could Take On 2nd Amendment - Newsmax.com

simba

"Resisting government tyranny is perhaps the original and central purpose of the right. Secondary aspects include self defense and preservation and sporting purposes."

where does the secondary aspect come from?

am I missing something from the following 27 words?

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.

liable

I am still waiting for a response from all you want to be NRA-members and hard right-Busheviks.

If the role of the 2nd Amendment is to resist government tyranny a handgun isn't gonna do much against the most well-funded army in the word? Why not allow RPG's or WMD's in the hand of people if that is the objective?

kluge

parent2noles, do you recognize that you're asking activist Supreme Court Justices to engraft a whole slew of exceptions, modifications, and qualifications onto the Second Amendment to reach the goal you prefer? I don't see anything in the Amendment about "reasonable regulation." If it's a personal "right", it "shall not be infringed." I understand you're stating what you think would be a better rule, but it's not in the language of the Constitution. Maybe you should push for a Constitutional Amendment to put whatever it is that you think the second amendment should say in there.

Whatever happened to "strict construction?"

mini

"Resisting government tyranny is perhaps the original and central purpose of the right. Secondary aspects include self defense and preservation and sporting purposes."

Neither self-defense nor preservation nor sporting purposes have ever been recognized at the federal level as having any relationship to the Second Amendment whatsoever. There are state laws that cover these in some cases, but not the Bill of Rights.

"Why not allow RPG's or WMD's in the hand of people if that is the objective?"

My reading of the Constitution is that it likely does. But not handguns.

hayden

We have freedom from the state imposing a religion on us; yet if a couple wants to deny, on religious grounds, a blood transfusion to their minor child, the court regularly overturns their decision. We have freedom of speech, yet the Court has held for years that you cannot yell "fire" in a crowded theater. Where will we draw this line if at all?

It will be interesting.

parent2noles

Very interesting ideas. Of course, the process moves ahead nonetheless.

It is perfect timing that this occurs in the middle of the presidential election period.

simba

yup. looks like the republicans managed to get this wedge issue so early out of the bag.