<p>
</p>
<p>But again, that clause of the enumeration of the RKBA does not place a limit on the right. Whether such a militia exists or not, the right still exists. How would you argue that it does place such a limit??</p>
<p>Icarus, one last time: Laws are not created in a vacuum. The Third Amendment was drafted in response to a current perceived social/political issue. It’s not an issue any more: the Third Amendment has ceased to have any significance in the real world. The Second Amendment likewise was drafted in response to a then current perceived political issue. It wasn’t handed down by God. It wasn’t the expression of eternal truths by divinely inspired acolytes. It was just a law, passed in response to a then-current political/military issue, which no longer exists.</p>
<p>Personally, I’m kind of a purist. Even though a law no longer makes sense (to me, or perhaps to you) our duty is to change the law, not ignore it. That’s why I say the second Amendment states an individual right. I think that’s the way the framers set it up. But in doing so I don’t kid myself that that right makes sense in the way it did when the amendment was adopted, or that the framers of the constitution meant for it to have the effect it will have in the 21st century. It’s not magic - it’s just people trying to arrange their collective affairs as best they can. The framers included the second amendment for reasons having nothing to do with the reasons you want that right enshrined in the Constitution. If they had been looking at the world of 2008 instead of the world of 1789 when it was drafted and adopted, I don’t think it would be in the Constitution, because the reason they put it there no longer exists. And they were pretty smart, and pretty practical guys - in marked contrast to today’s gun nuts. Today’s gun nuts just want their guns. They’re not really interested in a realistic defense of the free state (except in their wet dreams.) That’s why problems will inevitably follow the literal implementation of (what I think) the literal text of the Amendment means.</p>
<p>That’s why I say be careful what you wish for: you might get it.</p>
<p>“Arms in the hands of individual citizens may be used at individual discretion in private self-defense.” - John Adams, A Defense of the Constitutions of Government of the United States of America (1787-1788).</p>
<p>I think that might indicate that self-defense was at least one reason the founders considered. It also happens to be one of the most commonly used arguments by “gun nuts” today.</p>
<p>“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?”
- Thomas Jefferson</p>
<p>
Then why didn’t they say that in the text? The text that Congress as a whole approved, and that the states ratified? Because that’s what made it law, not the comments of a single man at some random point in time. Why does the actual text refer solely to “A well regulated Militia?” Strict constructionists? Any suggestions?</p>
<p>Maybe the founders figured the purpose of the independent clause in A2 the right of the people to keep and bear arms shall not be infringed was obvious and thus more important than the dependent clause A well-regulated militia, being necessary to the security of a free state,.</p>
<p>The people have the right and because of it the people can form militias. The right of self defense is the origination of the right to keep and bear arms. </p>
<p>Personal defense becomes family defense which becomes clan defense which becomes village defense which becomes town defense which becomes county defense which becomes state defense which becomes national defense. Militas are extensions of the collective defense at whatever level.</p>
<p>P2N, that’s not “strict construction.” In fact, that’s well beyond “penumbras.” I personally think that the amendment means exactly what it says, each and every word, with the meaning of those words understood in the context of the time in which it was written. Nothing more, nothing less. </p>
<p>What we have to deal with is the fact that the context has changed. The Amendment expressly addresses “well regulated Militias.” Militias were a very real fact of life in 1789. The framers were not referring to a theory or a concept or principle; when they wrote “well regulated Militia” they had an unambiguous, concrete thing in mind that they were referencing. The problem is that that thing – “well regulated Militias” – don’t exist anymore. Not in fact - only in your “penumbra plus” theorizing. </p>
<p>You guys want to use the Amendment to accomplish a goal which is beyond the express language of the Amendment, because you like that goal. Some or all of the framers of the Constitution might have liked that goal, too - but they didn’t put it in the Constitution. They only put the Militia one in the Constitution. And that’s what the Supreme Court has to deal with. I’ll be interested to see what they come up with.</p>
<p>“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>You propose a great innovation: dividing statutory language into “active” and “non-active,” and ignoring the second when you apply the first.</p>
<p>We (meaning lawyers and courts) don’t read statutes by assuming we can cut one part away without changing the meaning of the text. We assume that every part is intended to have some meaning, and we try to take that meaning into account when we interpret the law. Unless two portions of a statute are in such direct conflict that it’s impossible to read it in a way that gives meaning to both portions (which is not the case here), we do not snip any parts away. This is why, for example, acts of Congress have to fit within the enumerated powers, like the interstate commerce clause, even though there’s a catch-all clause permitting Congress to “make all Laws which shall be necessary and proper.” See Morrison; Lopez.</p>
<p>You guys want to use the Amendment to accomplish a goal which is beyond the express language of the Amendment, because you like that goal. Some or all of the framers of the Constitution might have liked that goal, too - but they didn’t put it in the Constitution. They only put the Militia one in the Constitution. And that’s what the Supreme Court has to deal with. I’ll be interested to see what they come up with.</p>
<p>Kinda like the ACLU</p>
<p>So if the Framers are presumed to be educated men, then can we not derive benefit and insight from their skilled use of grammar? I suggest my simplistic grammatical analysis of A2 (which I did not originate - I saw it in a federal court decision somewhere) readily illuminates the most important part of the Amendment - that individuals have the right to keep and bear arms and that this right must not be infringed.</p>
<p>Too bad that Title 26, our beloved federal tax code, written in the main by attorneys skilled in the law, is not as clear as A2. :eek:</p>
<p>Ah…here it is…written by Judge Sam Cummings (UNITED STATES OF AMERICA v. TIMOTHY JOE EMERSON 46 F. Supp. 2d 598 April 7, 1999, Decided):</p>
<p>Textual Analysis</p>
<p>A textual analysis of the Second Amendment supports an individual right to bear arms. A distinguishing characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its purpose. No similar clause is found in any other amendment. While states’ rights theorists seize upon this first clause to the exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses, rather than construe them as being mutually exclusive.</p>
<p>The amendment reads “[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.” Within the amendment are two distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its independent clause, “the right of the people to keep and bear Arms, shall not be infringed,” then there would be no question whether the right is individual in nature.</p>
<p>Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people’s right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read “[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed.” However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized.</p>
<p>Gotta love TEXAS! :)</p>
<p>P2N, I agree with Judge Cummings. That’s how I read the Second Amendment, too. </p>
<p>But the fly in the ointment is this: As Judge Cummings notes, the right as stated is personal - but the equally clearly stated reason for putting that right into the Constitution was to ensure the existence of the militia. So where does that leave us when militias have disappeared anyway, for other reasons, and the “right to bear arms” no longer serves to ensure the existence of the militia? That’s the “contextual” problem that doesn’t go away just because you conclude (as I have) that the right, as written in the Constitution, is “personal.” The personal right is left in the text, but the expressly stated reason for that right is no longer served by it. It essentially perverts the stated intent of the framers to preserve the Constitutional stature of the right to bear arms if that right fails to serve the function it was expressly included for. (There’s another issue regarding exactly what “keep and bear arms” means, but that’s a different kettle of fish.)</p>
<p>As I said, I’ll be interested to see what the Supreme Court does with this. It’s an interesting legal question, entirely independent of where you stand on the underlying policy issues.</p>
<p>Perhaps we should amend the Third Amendment out of the Bill of Rights before we tackle the Second. Maybe that’d be easier… ;)</p>
<p>All kidding aside, one large disaster that overwhelms the US Military and the Second Amendment becomes just as relevant in 2008 as it was in 1778.</p>
<p>P2N, if we encounter as disaster sufficient to “overwhelm the US Military” I seriously doubt that having every Tom, Dick and Harry (who is left, anyway) running around with their .44 Magnums and Tec-9s is going to help matters. We don’t have the social infrastructure necessary to form and maintain a “well regulated Militia” anymore, and a “disaster” won’t change that. Maybe if we have a “disaster” which transports us back in time to the 18th century. Barring that, we’re left with a piece of now-random text which is seized on by zealots for purposes entirely unrelated to the reason the framers put it in the Constitution.</p>
<p>Whew, kluge…you should think more positively. Just like we still have ham radio operators who fill in when the public safety networks fail (and they do fail). So it is with A2. </p>
<p>It’s relatively easy to overwhelm the public safety apparatus and the military or National Guard. One disaster on the order of Hurricane Andrew, Katrina, Ivan or Charlie resulted in total chaos for days. This is where A2 fits in nicely. It may be temporary, but in moments we go from 2008 to 1770. I lived through it down here in FL a number of times and it is a mess. No phones, no gas, no electricity, no ice, no water and no police.</p>
<p>Worst of all, and I shudder when I type this — no air conditioning. It’ll flat scare you awake. ;)</p>
<p>There are militias in existance today, and the “unorganized militia” of Title 10. Granted, most of the organized militias are a bit out there. </p>
<p>Having a mass militia (unorganized for this scenario) may not help restore normal order, but it would let good people defend themselves/start to maintain some order (think about people defending their homes/neighborhoods after Katrina or during the LA riots).</p>
<p>I would disagree that the milita clause is entirely obsolete. I would say that it is much less applicable in today’s society. I would offer that there is still a use for it, even if it is much diminished under the current circumstances (who is to say what the future holds?).</p>
<p>
</p>
<p>I think the residents of NOLA who armed themselves to defend their neighborhoods in the wake of Katrina would disagree with you. Remember, “well regulated” just means “well equipped and well trained”…</p>
<p>This is a good article: [The</a> Commonplace Second Amendment](<a href=“http://www.law.ucla.edu/volokh/common.htm]The”>The Commonplace Second Amendment)
by Eugene Volokh (Law professor at UCLA).</p>
<p>He makes several comparisons to other laws, like the New Hampshire Ex Post Facto provision, which states:</p>
<p>Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offences</p>
<p>He points out that you can imagine ex post facto laws that are not really injurious, oppressive or unjust (or at least not “highly” so). And yet, the law bans all ex post facto laws, not just the highly unjust ones. </p>
<p>He then goes on to say…</p>
<p>"So it is with the Second Amendment. The Framers may have intended the right to keep and bear arms as a means towards the end of maintaining a well-regulated militia – a well-trained armed citizenry 40 – which in turn would have been a means towards the end of ensuring the security of a free state. But they didn’t merely say that “a well-regulated Militia is necessary to the security of a free State” 41 (as some state constitutions said), or “Congress shall ensure that the Militia is well-regulated,” or even “Congress shall make no law interfering with the security of a free State.” Rather, they sought to further their purposes through a very specific means. 42</p>
<pre><code> Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn’t further the Amendment’s purposes. As the other state constitutional provisions show, there should be nothing surprising in this. ** When you mean to check government authority, 43 you do this by imposing specific commands on the government, even if they sometimes don’t match your purposes perfectly, rather than by letting the government decide how it thinks the purposes can best be served.**
</code></pre>
<p>I see two main flaws in Volokh’s argument, along with other stuff I agree with. First, his comparison to other provisions in state constitutions has a fundamental flaw in that the other provisions he reviews all follow the same pattern:</p>
<p>“X is good because of blah, blah, blah, therefore no laws may ban or restrict X”
“Y is bad because of blah, blah, blah, therefore no laws that do Y may be passed.”</p>
<p>To follow that pattern the Second Amendment would say “A well regulated Militia, being necessary to the security of a free State, the right of the people to form and participate in Militias shall not be infringed.” But it doesn’t. It actually refers to two separate things, militias and “keeping and bearing arms.” If it were written the first way, we wouldn’t be having this debate. It is because it is written the way that it is that “bearing arms” with absolutely no connection to any militia is asserted as a personal right.</p>
<p>But I do agree with this statement:
Which means to me that when the law says “…the right of the people to keep and bear arms shall not be infringed” a personal right is being bestowed, not a collective one. (That’s how I read “people” in this context, anyway.) So I’m left, as before, with the grant of a personal right which no longer serves the express purpose for which it was placed in the Constitution.</p>
<p>Then you get to:
I think he’s wrong about construing “bear arms” as being congruent with “packing heat” but I think he gets to the right destination anyway. I’m pretty much satisfied that to “bear arms” meant to engage in military actions. Squirrel hunters aren’t “bearing arms.” I read “keep and bear arms” to mean a right to [personally] own “arms” and engage in military conduct without federal oversight. Which doesn’t go against the Miller decision, necessarily. You can argue that a sawed-off shotgun is in fact “militarily appropriate” but apparently no one presented any evidence in support of that theory at trial - a common failing which can make appellate opinions seem factually erroneous at times.
</code></pre>
<p>So then you get to the interesting question of what constitutes the kind of “arms” the people can “keep” so that they may be in a position to “bear arms” in defense of the free state in 2008. I read the Amendment as saying that “the people” can individually own the kinds of weapons that are necessary to engage in warfare - and they can engage in war (“bear arms”) as a (non-federal) militia in defense of the state. As to what “arms” the people can “keep”, I’m inclined to agree with Mini on that one - RPG’s yes, tanks yes, suitcase nukes, yes (!) but pistols, no. And while the people can “keep” arms that doesn’t necessarily mean they can haul them around with them everywhere they go - that’s not “bearing arms.” Running down to the 7-11 for a six-pack with a .44 magnum in your glovebox isn’t “bearing arms” - there’s no military conduct involved. So laws banning possession of guns outside of the people’s homes unless engaged in militia activities probably wouldn’t violate the Amendment, as I read it. Which isn’t perhaps the result the gun guys are looking for, but it does follow from the plain language of the amendment, utilizing the “justification clause” to interpret the “operative clause.”</p>
<p>Incidentally, I’d like to thank all of the participants in this and the previous “gun nut” 
threads. It’s been an interesting and education stroll down the paths of 18th century linguistics and Constitutional analysis, regardless of where you stand on the underlying policy issues.</p>
<p>I’ll happily go along with current federal law on regulation of destructive devices (e.g. RPGs, nukes, tanks with working cannon, most military types of explosive devices and so on) and can live with the $200 tax and federal registration of machine guns as being reasonable.</p>
<p>Some state law and federal interpretation needs to change, even radically - the DC gun ban, the weirdness in the federal 9th circuit and IL, MA, MD to name a few locations.</p>
<p>Most state laws on weapon display and locks are reasonable.</p>
<p>Why do you go from a perfectly reasonable evolution, as stated here, to one where there is a personal right to WMDs? If you said there is a personal right to M16A2s, I’d have to agree, but would want formal training and competency testing as a reasonable regulation, for example, but not licensing.</p>
<p>One second I think you comprehend the issues, kluge, the next you seem to spin off into the penumbra. Perhaps you should move south and rub shoulders with more of us rednecks, gun nuts and hillbillies. Buck season opens in November! :)</p>
<p>Yes, it’s been fun. :D</p>
<p>No penumbra here, P2N: just “strict construction.” I’m not arguing for “what Kluge thinks is a good idea” - I’m giving you my best interpretation of what the Second Amendment means, every word, understood in the language and context of the time in which it was written. I actually am a strict constructionist at heart (which is why I scoff and sneer at people who toss around “strict construction” as a synonym for “what I want instead of what the other guy wants.”) </p>
<p>I read “the right of the people to keep and bear arms” as interpreted in the light of the first part of the Amendment to mean “the right of individuals to personally own militarily appropriate armament so as to be able to wage war as a part of a militia which is not under the control of the federal government.” I think that’s what the framers, congress and ratifying states in 1789 understood the text to mean. I don’t see any textual basis for limiting the kind of armaments which might be used in the defense of the free state to only “little” guns. In fact, that seems to me to contradict the meaning of the text. “Bear arms” means “go to war”. That’s why I say RPG’s yes, pistols, no. I may be wrong about this (not being a military buff) but I don’t think that many military forces rely on pistols as war armament these days. I know some soldiers have them (officers, maybe?) but they’re not really military weaponry in this day and age, as far as I know. (I may be wrong about that - I don’t claim expertise here.) But I suspect that if we did have 18th century style militias today they’d have militarily appropriate armament - RPGs, AK-47s, stuff like that. Again, it’s hard to translate the 18th century law into 21st century reality, because there are very good and practical reasons why we don’t have real militias anymore, but that’s basically what you have to do with the Constitution, like it or not, if you want to be a “strict constructionist.”</p>
<p>(P.S.: Some of my best friends are deer-killin’, gun totin’ rednecks.)</p>
<p>Pistols, to the military, are last-ditch close-in weapons that are more show than effective. They’d prefer to hold you off at 35 miles or more and show you love with high explosives.</p>
<p>Can’t say that I blame them. In WWII an American officer, pinned down on a causeway in Normandy, France with his troopers, fixed bayonets and charged the German forces consequently dislodging them and stopping the annihilation of his men by distant, indirect German fire. The Germans fled when confronted with bayonets and determination.</p>
<p>He was awarded the Medal of Honor for his last-ditch efforts to survive. Can’t say I’d ever be so brave, but it makes me sit just a little straighter knowing we have such fine men.</p>