Sorry, forgot to delete the rest of BobLibDeb’s post.
I wasn’t inviting you to assume that; I was inviting you to make the case that it does. I don’t think that’s the case, but I do think it is marginally better than the proposition that only a state militia may have guns.
“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.” (emph mine)
I’m not suggesting we use the collective interpretation; you are free to, but As Cecil has pointed out, case law suggests that the rest of the amendments in the Bill of Rights are considered to apply to the states as well. In order for you to be consistient, you’re going to have to argue that states are also free to regulate speech, press, religion etc. and that the Bill of Rights is not binding on them. Legally tenable perhaps, but I don’t believe you want Mississippi being free ignore the sixth amendment if they so choose.
Strong arguments can be made that the 2nd amendment is outdated and should be repealed, as BrainGlutton is doing; I don’t agree, obviously, but it’s intellectually tenable. Trying to claim that the Bill of Rights was not intended to establish the rights of individual citizens is flatly absurd.
False “all or nothing” scenario you’ve set up there. Have you ever thought that, maybe, he believes that we have an absolute right to own a gun, with a few regulations?
It is equivalent to saying: “Individuals do not have a right to own guns”, despite the fact that the 2nd amendment says they do.
Hell, simply by identifying it as THE RIGHT to keep and bear arms implies that there is, indeed, a right to keep and bear arms.
And I’ll be damned if you can explain to me just where the 2nd Amendment says “Only the Militia has the right to keep and bear arms”.
(And somebody else mentioned the Articles… which state that “The Militia” refers to both the Official Militia - National Guard, or something - and the Unofficial Militia… the People.)
True; a large all-powerful government might theoretically still be benevolent. The Swedes seem happy with socialism, and you can make the case to the populace that we should emulate them. I rather suspect, however, that many more people will share my instinctive skepticism. I will remind you that the most liberal of recent Presidents said “the era of big government is over” after taking offiice.
Ah, so there’s no need for a Bill of Rights, then? No need for a Supreme Court? If the ballot box was all we needed, the framers would have just created a parliamentary system and let it go at that; there was already precedent for that. The whole purpose of a written constitution is to limit the government above and beyond just being able to vote them out.
You speak as if they are all mutually exclusive; the goal is political the mere possibility of armed rebellion has political consequences: the military is just the ends. Of course guys with rifles couldn’t take on the US Army in a fair fight; but to steal a line, that just means they don’t have much incentive to fight fair. Asymmetrical warfare is how the US beat the British, how the Vietnamese beat the US, and it’s what Al Quada et al. practice.
At the risk of inviting a hijack, consider the current Iraqi conflict. In nearly every engagement, casualty rates run in the US’s favor by 5, 10, 20 to 1. Aside from the rightness or wrongness of the war, and in strictly military terms, the US continues to win overwhelming victories. But because the American people put a very high value on each serviceman’s life and because we are very averse to civilian “collateral damage,” the continued resistance has many people feeling the US should pull out ASAP; which, (whether or not it is a good idea), is clearly the political goal that the insurgents want. Similarly, in military terms, the Tet offensive was a defeat for the North Vietnamese … but it created the impression in the US that the war would never end, and led to the US pullout. Similarly, the British won nearly every major engagement of the American Revolution … but Washington did a masterful job of avoiding complete defeat, and kept his team in the game long enough until the British essentially decided the 13 colonies just weren’t worth it anymore. It’s not like the Battle of Yorktown destroyed the entire British Army.
Now, think of the political fallout of events like Ruby Ridge or MOVE or Waco. The government won in strictly military sense (i.e. they didn’t want David Khoresh to have guns, and now he doesn’t), but they nearly “lost” in a political sense.
Imagine if you will the government declaring that all students MUST go to government schools: no private schools and no homeschooling. Since most people already send their kids to public schools is seems possible that that might get 51% support if the right politicians sold it the right way. There’s no right to private education in the constitution, and the courts have already upheld mandatory-schooling laws, so we can certainly at least imagine the courts upholding such a law. (and BTW if this scenario seems improbable: the first cumpolsory-schooling laws in the US in 1852 were pushed by anti-Catholics and were enforced at gunpoint).
But I in trying to enforce such a draconian law, we’d see showdowns with Fundamentalist Christians, devout Catholics, Libertarians and Og knows who else. Armed holdouts in the Montana hills played out on CNN would create immense political pressure. The possibility of that happening is something that the government would be well aware of … which is one reason why such a (IMO, tyrranical) law wouldn’t be proposed.
Hence, whether or not they could win an actual battle, the rifles of those nutjobs in the woods do function as a restraining force on the governement.
No prob. Since I started on the history I might as well supply a few more clarifications here for those with the patience to wade through my prose.
Except in the most dire days of the very early colonial settlement only rhetorically can we refer to the people as a whole as the militia. Even in theory the militia didn’t include every body only the adult males who were ablebodied, white, and not in servitude. There was a religious dimension as well. Pacifist Protestants ( mostly Quakers and the German Pietist sects ) might be excluded and perhaps Catholics as well. In actuality the militia consisted of those men in each county who turned out a few days a year for desultory training and could be mustered when needed.
To explain the contemporary Anglo-American aversion to standing armies historians often point to the geography of Britian. Being on an island they were difficult to attack with large land forces. For Englishmen of the day “Conquest” was something that happened only once and long ago. They didn’t face constant invasion and thus never had to learn harsh lessons about what professional soldiers can do to hearth and home defended only by part timers.
England could get by with militia and save a lot of money and so it did. This created the need to raise new regular forces for every war which favored Parliament in its contest for power with the Crown. The supporters of the king or Torys favored standing armies while the parliamentary partisans or Whigs began to see them as a means for kings to wage a foreign war or enforce domestic policy without the consent of Parliament. Thus the idea of a standing army as an instrument of tyranny entered the ideology of the Whigs particularly the rural or Country Whigs. The Court Whigs took a more cosmopolitan view.
Also personally I suspect the old Anglo-Saxon distinction between the here or offensive force ( as in “to harry” ) and the fyrd or defensive force which was usually little more than a spear levy may have something to do with the distrust of adventuring armies but perhaps that is just the romantic in me.
In any case, since virtually every politically aware colonist was full of Whigish ideas the Atlantic was no barrier to the prejudice against standing armies. It didn’t hurt that the colonies found themselves rather isolated as well after war and disease had removed so many of the previous inhabitants of the lands east of the Allegheny Mountains. This was particularly true for the middle colonies which didn’t face invasion until the final colonial war they called the French and Indian War. Until then militia were generally relied on to protect the colonies and since the regulars that came to fight that conflict were led by officers the colonists found imperious and tyrannical the prejudice was reinforced. So militia were considered sufficient in ordinary times.
Of course, violent resistance to the most powerful empire in the world hardly made for ordinary times. Militia could not win the war against British regulars and a regular army was needed. The Continental Army was generaled by George Washington of course. A few years into the job he solemnly swore in a letter intended for public consumption to have never seen, “a single instance that can countenance an opinion of Militia or raw troops being fit for the real business of fighting.”
Washington was a harsh critic though that was the general feeling among the Continentals. Militia tended to have short enlistments and be poorly trained, poorly equipped, and poorly disciplined. Their short terms of service often left them unable to perform the task they are most suited to: garrison duty. On the battlefield men unable to march in a straight line were generally useful only as skirmishers. Militia units often had some men with no firearm at all or only a rifle. The rifles of the day, even the famed long rifle, were not as effective in open combat as muskets because they couldn’t mount a bayonet and their barrels had to have a snug fit to allow the ball to catch the grooves cut in the barrel and come out spinning. This gave them a slower rate of fire and fewer shots before the gun fouled. Their greater accuracy tended to be nullified by the smoke and chaos of the battlefield though the practice of tasking a few expert marksmen to snipe at the enemy officers, while ungentlemanly, could be effective.
A lack of discipline was also counted as a mark against the citizen soldier. Militiamen were more likely to refuse to obey orders or to leave the army prematurely ( their desertion rate was over 20% ). They were less careful about camp hygiene back when disease often killed more soldiers than died in action. The militia also lacked the general immunity to smallpox that the Continental Army had so painfully acquired by the campaign season of 1777. Nonetheless, militia can sucessfully operate in conjunction with regulars as at the important victory of Saratoga shows. They could even be effective in the field alone against regulers in certain situations particularly where local knowledge gives them a tactical edge over better trained opponents as at Lexington and Concord.
Hopefully I have explained what militias were, why they and not standing armies were thought necessary to the security of a free state, and that they didn’t win all or even most of the victories of the Revolution. So what did they do? As I said before the main task of militia is local service. They helped win the war by keeping an eye on the homefront. Rather than open battle a militiaman would more likely be found lynching a Loyalist or 2 or perhaps making a show of force to intimide slaves who might be fomenting a revolt. Yes, militia can check abuses of liberty; they can also be the force of tyranny. That’s because the militia is itself an instrument of the state.
Sure sometimes independent companies were raised… with the permission of a colony or state. It is state sponsored revolution that was the darling of those heirs of the Court Whigs called ( among other things ) the Federalists who created and ratified the Constitution and ran the new central government to their own satisfaction until kicked out of power by the followers of Jefferson. They were Sons of the Revolution but of a revolution declared by the proper authorities not by some armed rabble. It wasn’t an armed citizenry with no governing authority that rebelled against an organized governmental power. It was subordinate organized governmental power(s) rebelling against the central organized governtal power. The idea that the Federalists ( or even many of the Jeffersonian Republicans for that matter ) would respect the right of rural folks to resist their state governments or the new federal government is flat wrong.
There was armed resistance in the backcountry immeadiately prior to the federal convention and again during both the Washington and Adams administrations. Obviously some folks ( white folk even ) didn’t agree with BobLibDem that the American Revolution didn’t result in tyrannical governments. But those revolts were put down. Here’s what was said of the first disturbance in 1786 known as “The Regulation” or “Shay’s Rebellion”: In a letter to Madison Washington inaugurates a fine American tradition by insinuating the malcontents were a bunch of commies and asks “Will not the wise & good strive hard to avert this evil? Or will their supineness suffer ignorance, and the arts of selfinterested designing disaffected & desperate characters, to involve this rising empire in wretchedness & contempt?” Even before Washington received his very misleading information about the uprising ( Knox, the ambitious subordinate, was hyping the intelligence in order to get his old boss to take a risk… in this case to get off the fence and commit himself, and more importantly his reputation, to the federal convention that was to meet “May next” ) the Hartford Wits had gotten to print with the beginning of their epic poem The Anarchiad lampooning the Regulators as well as others deemed enemies of order. It would seem that these men, even a still ardent revolutionist like Joel Barlow, would more likely see the Michigan Militia as a levelling mob to be suppressed rather than the security of a free state.
A quick note on sources. The stuff deflating the myths that have grown up around the militia during the Revolution is from Garry Wills’ excellent work A Necessary Evil which, coincidentally, contains an etymological argument that the right in the 2nd Amendment can’t refer to individual gun ownership because to bear arms only refers to military service never to simply carrying and using a weapon as a private individual. Personally I’m not convinced by the argument but you can check it out for yourself. The rest of the book is a treasure though I took the Washington quote regarding the militia comes from Washington and the Revolution by Bernhard Knollenberg. Information on small pox can be found in Elizabeth Fenn’s Pox Americana. And everyone ought to go read the Strange Battle for the Bill of Rights.
Didn’t say you were.
Let’s try this again, o.k.? This is the original exchange:
You guys are both wrong. If the Second Amendment IS only referring to well-organized militias, AS WAS THE JIST OF YOUR DISCUSSION, that doesn’t necessarily mean that chique’s family and friends must give up their guns.
How you get from that to thinking that you had invited me to make an assumption is beyond me. When I use the word “if”, it doesn’t mean I’m making an assumption. For example:
“If this ring is 24K gold, I will buy it.”
I’m not assuming the ring is 24K gold, I’m making the second part of the sentence conditional upon the truth or falsity of the first part. Understand the difference? Perhaps what is throwing you off is the word “assuming”, as in:
“Assuming this ring is 24K gold, I will buy it.”
That sentence has the same meaning as the first one. Even though I use the word “assuming”, it doesn’t mean that the premise is necessarily true. It is assumed for the sake of argument, not assumed to be true.
I wonder if this same difficulty in understanding the nature of a dependent premise is why so many people misinterpret the Second Amendment. 
That only proves my point, that just because something isn’t specifically protected in the Constitution, doesn’t mean it’s forbidden. Whether the matter is relegated to the states or the people is immaterial.
No, you’re assuming your conclusion, that the Bill of Rights protects individual gun ownership. But that’s precisely what’s being debated.
I agree. Good thing I never made such a blanket statement as that. Nice strawman, though.
Then it’s not absolute, is it?
Yes, but you DO realize that my sentence and your sentence are not the same, don’t you? Please tell me you understand that “not protected as a right”, and “forbidden” are not equivalent.
What’s your point here?
I don’t know why this is so hard. IMO, the Second Amendment is saying that we have the right to form militias. It doesn’t HAVE to say “only”. What other amendments use the word “only”? Should we assume that dogs and cats have the right to assemble because it doesn’t say “only” humans?
Well, but you are missing the second clause in your interpretation. You are right, partly. The second ammendment, says that because we need the ability to form militias, the federal government will not restrict the people’s right to bear arms.
Clearly, you can argue that this means that only in the pursuit of an organized militia shall people be allowed to bear arms. This is the federal government’s position (and I think the supreme court supports it IIRC). But this seem to miss some of the language in the ammendment.
The founders were not more plain about the make up of a militia, because they clearly thought it was a States issue. That is, the States should be left with the responsibility to name officers, maintain armouries etc. Of course, this also means that the States could very easily define the militia as every able bodied man and allow everyone who is not a criminal or indentured servant to own arms. Conversely, one could argue that States should have the right to limit gun ownership to those activities which directly support the “regulation” of that State’s militia.
Well, no. I was trying to make the very narrow point that a thing not being protected as a right does not necessarily mean that thing is forbidden. I was trying not to even get into the states rights vs. individual rights argument. We did it to death a few months ago, and I really don’t have any more to say on that argument. Suffice it to say that I agree with the U.S. courts that the “states rights” interpretation is the correct one. I’m sure you can find the previous thread if you really want to know all my arguments. In fact, IIRC, you participated in that thread, pervert.
But I’ll be glad to address your points here:
To what specifically are you referring? What language is being “missed”? The word “people” in the second half of the sentence? If it said “individuals”, you’d have a better case, but “people” is not equivalent to “individuals”.
And even if we allow for it to mean “individuals”, it’s still clearly talking about individuals who are in a militia. And at this point, gun enthusiasts generally resort to hand-waving about how “militia” means the same thing as “all the people”. :dubious:
Now I’m confused. You have just outlined the “states rights” interpretation (with which I happen to agree). But before, I thought you subscribed to the “individual rights” interpretation. 
What sort of logic is that? “Competition being necessary to the functioning of a market, the right to start new businesses shall not be abridged.” So can only those who intend to compete with an existing business start one? :dubious:[sup]2[/sup] That is not a reading of English that seems obvious or clear. Justifications for a behavior are not often exclusionary. Sometimes they are, sometimes they aren’t. Given the circumstances of the time when the document is written, and what it is about, I don’t see how anyone can take an exclusionary view of the sentence.
Yes. But any business is going to be competing with another business, even if the new business is selling a new product. Segway Scooters are competition that provides an alternative to bicycles and cars. When cars were new they were an alternative to horses, etc.
I construe competition as broadly as possible in this context because there is nothing in the sentence to limit it.
I construe “militia” in the Second Amendment more narrowly because of the “well regulated” that precedes it. If your average Joe Sixpack can have a firearm in his basement, then he should be expected to report for duty if called upon by his State Militia, or else he is subject to having his gun taken away according to the rules of his “well regulated” militia. If the Second Amendment doesn’t permit the State to regulate who has guns and who doesn’t, then the entire “well regulated” part becomes meaningless.
Wow…I’ll have to tell the WVU Rifle team that those aren’t actually target rifles…they’re dreaded Instruments O’Death!
My bad for the confusion. I was trying to agree with your narrow point from the other side of the argument. I have seen decent arguments on both sides of the “individual” and “collective” rights debate. Personally, I tend to side with the individual rights side. But in no way do I think that the ammendment is perfectly clear and obvious. Especially taken by itself.
I think a good case can be made that the framers of the Constitution did not mean that only state sanctioned gun ownership was permisible. However, I also acknowledge that the ammendment itself is unclear on the issue. I think the ammendment is somewhere inbetween an outright granting of power to regulate (in the modern sense of the word regulate) gun ownership to the government and the acknowledgement of an absolute (or very nearly absolute) individual right.
Follow through with this, and monopolies don’t “really” exist because there’s always competition. But in any case, my point was that the statement didn’t demand a justification for starting a business, only offered one in order to state the right in question. There are lots of reasons for private firearm ownership, all of which the framers were surely aware of. I do not believe that “militias” were the hallmark of private gun ownership when hunting was so common. Reading that passage as restrictive is simply beyond the bounds of what I consider a common-sense reading. Perhaps I am wrong; common sense often is anything but. Yet the phrasing used is that the exclusionary reading was “obvious” when in fact it isn’t only not obvious, but doesn’t make any sense given the climate of the time.
This may be a misinterpretation. “regulated” has a slightly different meaning today than it did a few centuries ago. Especially in regards to military matters. The definition “marked by system or regularity or discipline” is closer. Specifically a well regulated militia is a well trained militia. Or at least one which is competent with firearms.
The hell it does. Check the O.E.D.
What kind of analogy is that? In your analogy, the first part of the sentence is directly related to the second part. But then you would apply the same reasoning to the Second Amendment to mean, in effect, "A well regulated militia, being necessary to the security of a free state, the right of each person as an individual to keep and bear arms for personal self-defense, shall not be infringed. Interpreted that way, the two halves are contradictory. It’s not like your market analogy at all.
If you want to argue that you have the right to be in a militia, and use a gun in that militia, I will give you no argument. It’s only when you claim the right to own a gun for personal self-defense that I will have to disagree.
Here’s a better analogy:
“Public spaces being necessary to conduct legitimate business, the right to erect buildings shall not be infringed.” By your reasoning, that means anyone is free to build casinos, brothels, or drug labs.
Which raises the question of why, if they were aware of the other reasons, they only mentioned militias. Surely they didn’t just put that in there for nothing.
But you’re forgetting that there wasn’t a consensus at all. It wasn’t like every one of the founding fathers was an avid hunter. See, that’s the problem - gun enthusiasts always make these blanket proclamations about what the founding fathers believed in, as though they were all of one mind. Some of the colonies had gun restrictions, and some didn’t. Not everyone believed in a right to hunt. And if hunting were a crucial issue, why isn’t it mentioned in the amendment?
That’s your opinion; I disagree.
Which isn’t to say the courts can’t be wrong. Really, all it may mean is that perhaps the distinguished jurists responsible these opinions haven’t read The Federalist. There’s no earthly reason for there to be any debate over what the authors of the Bill of Rights meant. It’s pretty fully explained by three of the principal authors of the constitution and the first amendments to it - Alexander Hamilton, James Madison and John Jay - in The Federalist. And that view is that the right to keep and bears arms is an individual right.
Ain’t no mystery here.
You might also wish to review [url=“http://www.gunlaws.com/supreme.htm”]Supreme Court Gun Cases by Alan Korwin, David Kopel & Stephen P. Halbrook before making the assertion that the Supreme Court has shied away from second amendment issues. There are more than ninety-two opinions issued by the Supreme Court that directly mention, at least in part, the second amendment. Opinions, many of which were issued in the past few decades. That the Supreme Court has had little to say about the second amendment simply is not true.
Because that was the only aspect of the issue of private firearms ownership they [the authors of the constitution]deemed a proper concern of the federal government.
Of course they are related.
It is, except for some reason you are demanding exhaustive lists from the constitution when there is no need, nor any other indication of.
They are, if one reads the passage as non-exhaustive. Given that there are no exhaustive keywords, like “only”, or “exclusively”, or etc, I think that one should either consider it non-exhaustive, or ambiguous. Not “obviously” exlusive.
No issue was crucial but that the right to keep and bear arms wouldn’t be infringed; as UncleBeer mentions, the part the government needed to care about was the formation of non-federal militias. I see no reason to conclude that the amendment means only non-federal militias. To use your argument style, if that’s what they meant, how hard would it have been to say so?