Then we’re living in a seriously different country than the framers intended. I promse that 280 million people with hunting rifles and handguns(assuming every man, woman and child in the US had one) still doesn’t stand a chance against the government of the US if the US military still supports the administration. Nuclear weapons kind of tip the scales.
Effective rebellion has been nearly impossible in the US for nearly 100 years. One could argue that effective rebellion was impossible even before that and cite the Civil War as the example of a failed rebellion.
As MaxTorque points out, the original proposed Bill of Rights had 12 proposed amendments, only 10 of which got ratified in the 18th century, so what became the 2nd Amendment to the Constitution was actually the 4th Proposed Amendment on this copy.
Note that this copy has NO comma after Militia, and NO comma after Arms.
Okey doke, that looks like it’s probably a comma. Wonder where it got redacted in the reprinting? Regardless, thanks for the link.
There’s nothing stopping you from filing an amicus brief, as far as I know. Knock yourself out, Max. Who knows, the Court might even post it on their web site if they grant review.
No, actually, they believed standing armies were anathema to a free people. State-sponsored militias were considered vital not only in defending against foreign invaders, but also in protecting the States from a Federal government that got too powerful.
While you’re highlighting words, minty, you can put “keep and bear arms” under the microscope. Garry Wills has argued that the use of those words indicates a clear military connotation, as opposed to using weapons for home defense or sport. “Arms,” he says, refers to weapons of war, including artillery. You “bear arms” when you take part in a military action. When you store this equipment in an arsenal, you “keep” it, as in the keep of a castle.
I rather like this interpretation, but that’s only because I want to take away Charleton Heston’s guns.
Quite so, Grumpy. The Ninth Circuit opinion does some pretty good historical analysis of what people meant in 1791 when they said “keep and bear arms.”
Not that I’m particulary interested in the topic but wouldn’t it mean that not able bodied people shouldn’t own weapons, then?
In other words that as soon as you’re not able to become part of a potential militia of citizens (say, you’re handicapped, or too old), you would have no right to own a weapon?
An atomic bomb is an arm within the same definition as a gun. An artillery piece is certainly a gun, like Atomic Annie. Having the right to keep and bear arms as an individual has its consequences.
Holy jumping frijoles. I leave work, go get some supper, and nearly an entire page of posts gets added to this thread. With a whole host of other legal analysts. I also have no desire to hijack, but I’m still curious who all besides ** minty ** and myself and Bricker are attorneys and who all are interested and literate non-attorneys. Just for my own edification, mind you. Can anyone point me to any thread or previous discussion of who around here is attorneys or has that not been done in a thread before?
On the topic at hand… I’m trying really hard to keep up with the discussion despite the variations and strays from the original topic… has anyone managed to cite anything in SCOTUS literature that even remotely suggests they might conclude the Second Amendment confers any sort of individual right? Or are we left, at this point, with a split of circuit authority and a majority of circuits concluding there is no such individual right?
Not that the history lessons aren’t interesting or anything, but I’m more inclined to be concerned right now with the legal conclusions of the courts so far than what commentators or even The Federalist papers might have to say on the topic.
Even in the early days of the Republic, I’ll bet civilian ownership of the heavy weapons of war (e.g. cannons) was frowned upon. Are there any really old – I mean antebellum old – laws in the States restricting the private posession of cannons?
Interesting analysis by Volokh. He assumes an evolving Consitution (not original intent), and concludes that the case for the individual rights interpretation is strong given that approach. He points out that the individual rights interpretation was the understanding of most citizens when the Constitution was ratified, when it was extended to the States via the 14th Amendment and today.
Well… that just doesn’t make sense. The difference between the froot loops example and the real-live Second Amendment is that in the Second Amendment the subordinate clause clearly has a relation to the primary clause… in other words, they didn’t talk about froot loops but talked about “a militia” because it had something to do with what was in the primary clause, the right to bear arms.
Doesn’t some other relatively famous document drafted by our founding fathers start with some language along the lines of “We THE PEOPLE, in order to form a more perfect union…” Did they mean to say “We THE INDIVIDUALS” there and not “We THE COLLECTIVE PEOPLE OF THE UNITED STATES”?
Just tossing out a couple of more thoughts for fodder…
I have not read the thread yet, so please forgive me if I’m re-posting.
There are some who say the “slippery slope” argument is a fallacy. They say that it doesn’t happen and that people who think that it does are paranoid.
California passed an “assault weapons” (and we all know that’s a made-up phrase) ban quite a while ago. It banned 75 firearms. Then they passed another law that banned hundreds of firearms (according to this morning’s broadcast on NPR). From 75 to “hundreds”. Sounds like slippage to me. Now a California court has said that people don’t have a right to own any firearm.
Any strict constuction/original intent analysis depends on assuming that the founding fathers, and the electorate of the time, agreed, which they most certainly did not. It really becomes which faction of the founding fathers philosophical progeny has ground the axe longer and better.
There is a difference between a discreet weapon, like a rifle, shotgun or handgun, and an area weapon like a grenade, molotov coctail, an explosive shell fired from an artillery piece, or a nuclear, chemical or biological weapon. Therefore, an atomic bomb is not an arm within the same definition as a gun.
I’m a brand-spankin’-new attorney in Texas. Still waiting for my license to show up in the mail, actually.
It’s generally preferable to say that rights in the Bill of Rights are “enumerated”, not “conferred”. “Conferred” means that the government gave them to us, and, well, that’s a whole 'nother argument in itself.
On to a SCOTUS cite. I give you U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990).
Well, at least the quote shows what Alexander Hamilton thought. Whether or not that reflected the intentions of “the framers” is still open to question.
It might not even have been Hamilton’s views a year earlier or a year hence. That’s the problem with citing authorities. For example, you could cite a quote from Thos. Jefferson supporting almost any side of the slavery question that you care to take.
