Allow me to repeat myself, UncleBeer (from page 2):
In a nutshell, my posistion is that the (federal) government can only infringe on the (individual) right to bear arms so long as it does not interfere with the “well regulated Militia.”
Gotta disagree again. It may be the only such clause in the Bill of Rights, but elsewhere in the Constitution, purpose clauses appear aplenty. For example, there’s the clause in Article I, Section 8 that allows Congress to create laws securing intellectual property rights. The clause reads:
There you can see a genuine “purpose” clause. The purpose is promoting science and the useful arts, and the means to achieve that purpose is by giving authors and inventors a sort of limited monopoly power over their creations. Neat.
Yet, the second amendment doesn’t contain similar language. It doesn’t say, “to promote,” or, “to create a well-regulated militia.” And since similar language appears elsewhere in the Constitution (and it was basically the same bunch of wealthy white folks writing both documents), we know that the authors knew how to write such a clause if indeed that was their aim. Thing is, they didn’t.
As it stands, the first phrase in the second amendment is better labeled a “justification” than a “purpose”. It’s a statement of the reason they felt the right was important, but not the goal.
Only as much as, say, the advent of television, radio, and the internet applies to the 1st Amendment. Things like tanks and nukes are ordnance, and probably would not have been considered “arms”.
I’m thinking that’s who she was talking about as well. 
:o My apologies! That’s why I usually try to use gender neutral pronouns if I don’t know… just slipped there! Thanks for the polite correction, though.
Didn’t even private sailing vessels carry cannon for self defense?
“Aplenty”? That’s patently false. I challenge you to show me further examples of “purpose clauses” in the Constitution, apart from the Second Amendment and the following:
Nice try, but that’s not a “purpose clause” at all. It sets forth the sunstantive power of Congress, as in “The Congress shall have the power . . . [t]o promote the Progress of Science and useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, it states that Congress has the power to do X by means of Y, not that that X is important so Congress can or can’t do Y.
Whoops! My apologies, minty green. You believe then, that U.S vs. Miller is the correct interpretation, yes? Or is it too broad, so to speak. Do you believe that an individual right exists only to those who are members of a “well-regulated milita?”
I will mention, again, this would be in contravention to the voluminous and well-documented statements of the framers. There is ample evidence that, in their opinion, all able-bodied freemen would comprise the militia and all able-bodied freemen had a right to arms for use in defense of their person, their families, their communities, their states and their nation. There is no argument on this point.
One must also remember that there were, in fact, no established police departments in 1789 and wouldn’t be for nearly another 50 years. Men, with their private arms, were expected to act prudently in the public interest in lieu of a constabulary to apprehend and detain criminals. They could hardly be expected to do this while un-armed. This is yet more evidence of the framers intent and the question of who makes up the “well-regulated militia” does not even pertain here.
Until the amendment is changed, no. It matters not at all.
As has been stated, arms and ordnance are separate things. If you are speaking simply of, “assault rifles” then I’d counter that all rifles were, to the founders, assault rifles and as such must necessarily, without regard to developing technology, be included in the broad term “arms.” Developments in science and technology were certainly familiar events to the founders. These were, so we are told, an uncommonly bright group of guys. I have to believe that while they wrote for times, they expected that private citizens would avail themselves of the continuing improvements in firearm design and technology. In fact, since they believed one of the more critical functions of armed freemen would be to act as a safeguard against a usurping military regime, they were in complete reliance on the fact that private citizens would arm themselves with the best current technology available to them.
So I was discussing this issue with a colleague and he suggested that the SCOTUS decision in Planned Parenthood v. Casey somehow had some bearing on the issue. He said that, although it is arguably dicta about dicta from an earlier case, SCOTUS included several comments about the SA language in the context of discussing other “individual” or “personal” rights. The relevant part of the above opinion is the first portion of Part II, incidentally.
What the relevant portion of the opinion does is notes that the 14th Amendment protects fundamental rights which comprise “liberty” from invasion by the States and then notes that “liberty” encompasses more than “those rights already guaranteed to the individual against federal interference by the express provisions of the first 8 Amendments to the Constitution.” Does this suggest, albeit as noted in dicta, that the rights of the Second Amendment (clearly one of the first 8 Amendments) are rights guaranteed to the individual?
The opinion further quotes dicta from an earlier opinion as follows:
Again, does this suggest that SCOTUS maybe does view the guarantees of the SA as being individual in the same nature as the First, Fourth, etc?
As I said, I recognize in reading the opinion that what is being done is making some statements which are arguably dicta and which rely, in turn, on dicta from earlier decisions. Nonetheless, the question I’m asking is whether this suggests that SCOTUS may have an inclination to view this as an individual right if they are pressed to do so? Language in these opinions is generally very carefully crafted and while the language may have been inadvertent the first time used, the fact that it was specifically quoted again in Planned Parenthood suggests, to me anyway, that SCOTUS may well have some inclination to view this as an individual right.
So… this question is for anyone, of course, but perhaps most directly for minty as the most vocal member of this thread arguing that prior decisions suggest a “collective” rights interpretation. I don’t necessarily disagree with you on that point, I just wonder what you think of this language and this argument.
I’m not quite sure I understand your distinction, but, well, there’s the preamble. That certainly shows the intended purpose of the document.
First off, thanks for such a civil reply. I almost hesitate to even post questions or thoughts on a thread like this because the issue can so quickly turn volatile!
I certainly think you are correct in noting that the framers were an unusually bright group of people and that they attempted to write the document to be able to account for such things as technological improvements. That said, does it matter that it is no longer a critical function of freemen to act as a safeguard against a usurping military regime? I’m guessing you’ll answer this also does not matter until such time as the amendment is amended, but I’m curious whether you think the framers might have chosen language that could be interpreted to meet the actual needs of future times (like now) as easily as they could have chosen language that would protect necessary rights through the passage of time?
UncleBeer:
I believe Miller was correct to construe the second clause together with the first. It only did so with regard to the type of arms covered by the amendment, however. Miller did not address the individual/collective question (despite the attempts of some people to argue that the Court did so sub silentio, despite being explicitly asked to rule on the question), so there’s nothing for me to agree or disagree with there.
The amdendment is phrased in terms of what the governement cannot do, not in terms of what the right is or to whom it extends. So to cast my answer in terms of the amendment itself, I believe the correct interpretation is that the (federal) government cannot restrict an individual’s right to bear arms if that restriction interferes with the well-regulated militia. The theoretical answer therefore depends on how each state’s well-regulated (not “unorganized”) militia operates.
In practice, seeing as how all the states have decided to go with National Guard units, and seeing as how National Guard members are armed by the state and federal governments without need to resort to Grandpa’s old deer rifle, the feds can constitutionally do whatever they want with privately-held weapons.
If a state objects, it could avoid the federal restriction by reorganizing its militia: tell everyone to show up for drill practice with their own weapons one weekend a month and two weeks every summer.
Dang it, I always forget the preamble. I was thinking of purpose clauses for specific provisions, not the whole Constitution!
How do you know it’s no longer a critical function? We haven’t experienced a usurping military regime in this country, but plenty of others have. I don’t expect it to happen here, but I wouldn’t say it’s impossible.
Even the preamble is subject to differences of opinion. I’m not at all sure that letting individuals carry semi automatic rifles that will put a bullet through an engine block at 300 yards does much to promote the general welfare. Nor, I think, does it contribute significantly to the common defense. And it seems to be questionable as to securing the blessings of my liberty.
Realhoops: What I think is that your argument begs the question. The 14th Amendment indeed protects individuals from state action in matters where the asserted “right” involves matters that are “implicit in the concept of ordered liberty.” Thus, you first have to inquire whether the right to bear arms is implicit in the concept of ordered liberty (I would submit that it is not; Mr. Heston would undoubtedly say something about cold dead hands) before you can conclude that it is an individual right. If it is implicit to the concept of ordered liberty, then it is necessarily an individual right.
In these endless debates, I always come to the same conclusion:
-
The Second Amendment is ambiguously worded.
-
When there is ambiguity, I’d prefer to err on the side of individual rights.
-
I’d rather accept that ambiguity, and have people arguing about it forever, than change a word of the Bill of Rights.
I don’t like guns, but even less would I like the level of government intrusion that would be necessary to get rid of them. Frankly, I’m more worried about all the idiot drivers who seem intent on killing me on the streets of Atlanta than I am about guns.
I understand the 14th Amendment and wasn’t trying to argue whether the right is implicit to the concept of liberty or is not. I merely wondered if you thought SCOTUS language in the opinion, referencing the SA along with the First and Fourth in terms of individual rights which are implicit in the concept of liberty suggested anything more about how they might rule than the Miller opinion did. In other words, do you think their inclusion of the SA with the others in that dicta suggests they might find it an individual right?
My take is that it’s an offhand comment, made in a very different context, that is unlikely to be of any import if the Court ever takes a real Second Amendment case. You should also note that the language Casey quotes is from a one-judge dissent.
I’m not going to answer this in the manner you surmised. There’s some ground there that I’m not willing to give up. I, for one, do not take it as a given that private gun owners and their legally held firearms are no longer a critical safeguard. I belive, for several reasons, private individuals are still provide a vital check on an . But that’s a whole other thread.
Eh. Most of us are relatively reasonable . . . at least some of the time. Post whatever questions you wish. If people respond with vitriol, you’re always free to ignore 'em. Or call 'em on it. In most cases, somebody, at least, will respond rationally. I try, I’m not always successful as many people will tell you, but I try.
Heh. And thanks for the concise and clear outline of your view, minty. I appreciate it. I’m sure you’ve stated it somewhere in GD more than once, but I’m stupid and forgetful. That and I sometimes get tangled up in the legal jargon.
No sweat, UB. Any confusion on your part is understandable, since I tend to spend my time in Second Amendment discussions describing what the law is, not what I think it should be.