<p>Actually, Icarus, you’re misunderstanding what I’m saying. I think that the second amendment did grant an individual right, which accompanied a pre-existing obligation. It did that in the context of a society where every man was subject to being called up to fight in his local militia. Early drafts of the second amendment had language expressly exempting conscientious objectors from service. Preventing the federal government from banning individual ownership of weapons served to preserve the state-based militias. The reason for the amendment was to preserve the existence of militias; guaranteeing an individual right to own militarily-useful weaponry advanced that goal.</p>
<p>But the militias faded away anyway. National Guards, the closest current comparable institution, are not militias in the 2nd amendment sense. So the context of the amendment - a world where state militias were an active part of the defense mechanism of the nation - has ceased to exist. What’s left is a guarantee of an individual right which no longer serves the purpose of the enactment. But the words remain. Usually when the reason for a law ceases to exist, the law ceases to have any effect, even if it remains on the books. But in the case of the 2nd amendment there’s a special interest group which wants to enjoy the individual right even though the corresponding obligation which attended that right has disappeared, and the reason the law was enacted no longer is served by it.</p>
<p>P2N, the “militia aspect” is the only “aspect” that was intended. That’s why it’s the only “aspect” that is referenced in the text. Any theory that some other “aspect” was intended to be served by the amendment is based on post hoc wishful thinking, with no reference to the actual adopted language of the amendment. The only intent of the second amendment is the stated intent which is, as you say, “inactive.”</p>
<p>And if you’re right about “some day”, then you have to agree with Mini - RPG’s, at the least, have to be included in the individual right to bear arms.</p>
<p>And yet I would bet that the Supremes would uphold the Third Amendment should the cause ever arise. Unlike laws against de-worming your horse on a public street, things in the Constitution remain visible. If people didn’t want to own guns, their right (or lack of right) to do so wouldn’t matter. I don’t worry about the government housing troops in my home because they don’t do it any more. If the government wanted to do so, it would be a hot issue again. As it turns out, the Constitution doesn’t just change because it isn’t thought very important any more, and the second will remain important as long as that second clause remains unchanged.</p>
<p>As it turns out I’m not necessarily in favor of unrestricted firearm ownership. I just don’t see how we can really regulate it without amending the Second Amendment. Why haven’t the opponents of private firearm ownership gotten Congress to start the amendment process?</p>
<p>Sorry, Kluge. That’s only your interpretation, which by last count is at best the minority view in the court. I do appreciate all the quotes, though. :)</p>
<p>If the militia needs RPGs they will be available under appropriate circumstances. Until then, they should be restricted by reasonable regulation as destructive devices - which is current federal law.</p>
<p>Let’s review the current SCOTUS count:</p>
<p>Roberts - personal right
Scalia - personal right
Kennedy - personal right
Thomas - personal right
Alito - personal right</p>
<p>Souter - on the fence</p>
<p>Stevens - collective right
Breyer - collective right
Ginsburg - collective right</p>
<p>That makes it possibly 6 to 3 or 5 to 4 in favor of personal right.</p>
<p>I actually agree with the majority view - and with WashDad, for that matter. I think the second amendment grants a personal right - even though the reason the framers included it no longer exists. But if it’s a right it’s a “right” - not a privilege. “Reasonable regulation” is just weaseling around the fact that the right doesn’t make sense in the modern world, but is being championed anyway by people who have no intention of having it serve the purpose it originally did.</p>
<p>So I’d champion a state law requiring every gun owner to muster up on a regular basis, and sending the ones to Iraq that we think will work OK. Because that’s the context of the constitutional right. But that won’t fly. Gun nuts want the right but not the obligation.</p>
<p>“I just don’t see how we can really regulate it without amending the Second Amendment.”</p>
<p>Because, in contrast to other amendments, it has a provision stating its finite purpose.</p>
<p>What if the first amendment said, “A well-regulated variety of Christian worship being necessary to the education of a free people, Congress shall make no law restricting the free exercise of religion”? I think you’d have a hell of a time arguing that the practice of Buddhism without government oversight is protected under that language. If that were true, the preamble would be meaningless. The preamble reveals that the drafters intended to impart a personal right to practice various types of Christianity, subject to regulation, period.</p>
<p>The preamble of the Second Amendment makes clear that the drafters intended to ensure the security of a free state through the WELL-REGULATED ownership of arms. Any such ownership that does not enhance the security of the state is not protected. Hence, no RPGs. And it’s perfectly kosher to test, register and photograph anyone who wants to buy a gun, just as we regulate cars.</p>
<p>I strongly disagree (and fortunately, SCOTUS does too). The active part of that statement (i.e. the part that actually places a legal restriction on congress) is “Congress shall make no law…” and not the preamble. </p>
<p>What about the often used example of “A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed”?</p>
<p>Clearly this does not mean that only well-educated voters are allowed to read books. Nor does it mean that only books which lead to a well-educated electorate are protected. </p>
<p>And it definitely doesn’t mean that the right to read and compose books is contingent on the presence of well-educated voters. If no well-educated voters could be found, the pre-existing right to read and compose books would still exist. The first statement only offers one justification for the preservation of the active right laid out in the second part.</p>
<p>I thought it fundamental that a right of the People articulated in the Bill of Rights establishes a limit on the power of the government. The government cannot disarm the People and therefore is limited in power. The People are consequently protected from the government and can resist if needed, by possessing the means of violence and by preventing government from having a monopoly on the means of violence.</p>
<p>You are in error by stating the only purpose of A2 is to provide the state with a militia. The purpose of A2 is to protect the People and provide for a free state.</p>
<p>btw - I capitalized “people” to emphasize the whole of the people not, for example, some loon tax protester who want to be at individual war with the government.</p>
<p>How is a right dependant on the current time or social climate? Do you think that the right to free speech could possibly become meaningless in 10 years? 40 years?
Rights do not change based on these things, nor with whether they are ennumerated in law, for that matter.</p>
<p>A4 has been particularly troublesome for decades, yet seems pretty clear:</p>
<p>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.</p>
<p>I propose the whole trouble is that we use attorneys to help us with the law. We should read more Shakespeare and plumb less penumbra. :)</p>
Simple: there are no more state militias of the type specifically referred to in the text of the Amendment which references the right. That’s how a right can be “dependent” on the facts in existence at different times. As I said before, I read the language to specify an individual right. I also understand that the reason that right was guaranteed is stated in the amendment - “A well regulated Militia, being necessary to the security of a free State”. Well, we don’t have militias anymore. Not the National Guard, not every man over 21 or whatever - those aren’t the “Militia” the framers were referring to. We do not defend our “free State” with militias anymore. Haven’t for over a hundred years. That’s how the passage of times changes things.</p>
<p>And you guys aren’t about that “well regulated Militia”, either, except in your adolescent, “Red Dawn” fantasy attacks, as P2N helpfully illustrated in post 352, above. (P2N, are you seriously proposing mounting a rebellion against the United States Army using personal handguns, rifles and shotguns? If so, you need to get on Mini’s bandwagon with his RPG/suitcase nukes argument.) I’ll be interested to see how the Supreme Court handles this. It’s nowhere near as simple as any of you folks seem to think it is. I think the amendment does grant an individual right, but it’s a right which has become untethered from the function it was enacted to guarantee, which is a serious problem. </p>
<p>You guns nuts who are quivering with anticipation over the Supreme Court’s ruling, mark these words: Be careful what you wish for. You just might get it.</p>
<p>I’m not losing a bit of sleep over it, kluge. The system is simply in process of correcting an error. The sun still came up when Miranda v. Arizona was decided against the government in 1966, it will rise if the SCOTUS comes back with a restatement of the right some 73% of the public already knows.</p>
The Guard is definitely not what the founders had in mind by militia. By their writings on standing armies, I think it is safe to assume they would be rather unnerved by that development.<br>
However, the “unorganized militia” DOES exist. Whether or not the militia is used in defense of the government or against it, in the future, is not what I would argue for. Frankly, I’m glad that quite a number of military members have fired rifles BEFORE joining. I learned more about marksmanship from the boy scouts than from the Air Force. Responsible firearm ownership is of value to the US.</p>
<p>As for “adolescent ‘Red Dawn’ fantasy attacks,” the scenario warded off serious consideration of an invasion from Japan in WWII (see the quote by Adm. Yamamoto). Granted, we do not currently face such a threat, but why throw the idea away? We cannot accurately predict the future. Why should we do away with a “right of the people” based on a shift in military organization?</p>