"A well regulated militia"

[furt]

I’m falling hopelessly behind in this conversation, but…

@blowero

This is the original exchange:

OK I see where we miscommunicated. I was not arguing that the 2A was about militias … I was responding directly to a question about what “well-regulated” meant, and was pointing out that it had nothing to do with governmental oversight.

I was not saying that was the only circumstance a militia was allowed; rather that it was one of the reasons why it was allowed, and that militia as they knew it was something outside governmental control. I suggested that some (not I) might make the case, as it appears you are, that such militias are what the FF had in mind. What I was getting at was that even if that is the case, to be consistient with the militias of the American Colonies, such militias must be free of governmental control: i.e. much more like the Michigan Militia or even the local gun club than the National Guard.

IMO, As others have pointed out, the first clause is naming the most compelling political reason for the right listed in the second clause. As UncleBeer has said, this conversation is only possible if we ignore the copious explanatory writings of the founding fathers. I’ve never, ever heard anyone make a constitutional gun control argument based on anyhing other than that half-sentence.
As to why self-defense and hunting were not listed … ask yourself how you’d feel if Bush announced that he was supporting a law guaranteeing the right for people to go to any church they want. I know I’d be pissed off at his fatuousness, because A) I already have that right and no one else was even considering taking it away and B) the fact the he even suggested it implies that he thought the right wasn’t already obvious, and that would scare me.

I submit that in a country where most people were rural farmers and where there was not a single policeman on the continent, it would have been the height of arrogance (and political suicide) to suggest they were even considering taking away the tool many people depended on for food and safety.

[edited per poster’s req. --Gaudere]

[furt]

oops… mods, could you delete eveything after “safety”? Didn’t preview and accicntally reposted quoted material w/o attribution.

[minty_green]

@UncleBeer

You might also wish to review 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.

That link and that claim are every bit as misleading as when you posted it last month. The “ninety-two opinions issued by the Supreme Court” include a large number of concurring and dissenting opinions that in no was can be attributed to “the Supreme Court.” Nearly all of the rest do nothing more than mention the Second Amendment in passing. None of them decide the collective right vs. individual right controversy, though, of course, U.S. v. Miller squarely holds that the “militia” clause does implicate the scope of the right guaranteed by the “people” clause (i.e., it’s gotta be a weapon suitable for militia use before it’s eligible for any protection under the Second Amendment).

[2sense]

@pervert

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.

A quick look at the militia clause of the Constitution shows this to be false. The central government was specifically empowered… “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress”.

States were left with the right to name the officers to lead in the manner prescribed by Congress but there is no doubt about who has the power to regulate the militia.

@UncleBeer

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.

Those aren’t three of the main authors of the Constitution or the Bill of Rights. Madison certainly qualifies on both counts but not the other 2. Hamilton and Jay took executive and judicial positions respectively in the new government. They weren’t in Congress to help draft the first amendments nor was Jay even a member of the federal convention which wrote the Constitution. Hamilton was there off and on but wasn’t a player. Arguably no one else did more to make the federal convention happen or shape the subsequent interpretation of the document it produced but he did little to shape the wording of the Constitution. In his 372 page work Alexander Hamilton and the Constitution Clinton Rossiter covers the convention in only six and a half pages and concludes with, “Hamilton’s reputation as constitutionalist might be higher today if he, like Adams, Jefferson, and Jay, had been prevented by destiny from being in Philadelphia at all.”

I make no claim to have read all of the Federalist but am I unaware of any discussion of the right to bear arms. How about citing chapter and verse so we can see for ourselves? I guarantee none of the letters refers to the 2nd Amendment because they were released between Oct 27, 1787 and Aug 16, 1788. IOW- before the First Congress.

[blowero]

@erislover

It is, except for some reason you are demanding exhaustive lists from the constitution when there is no need, nor any other indication of.

I’m doing nothing of the kind. Where on Earth did you get that idea?

Quote:
“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.

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.

Again, I disagree. My reading of the sentence is that the second half is contingent upon the first half. Your reading renders the first half irrelevant. I don’t think there’s much point in continuing this discussion, since we obviously have a fundamental difference of opinion as to how to interpret the English language.

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.

That’s not what UncleBeer said. He said:

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.

And I’m afraid I don’t understand the point here. The Bill of Rights contains absolute protections for citizens, not just protections against federal actions. Freedom of speech cannot be curtailed by state or federal government. Yet the authors didn’t feel any need to qualify that amendment, nor provide “examples” of why free speech is important.

If I understand the argument several of you are making, you’re saying that the 2nd Amendment refers to militias merely because it’s an example of a reason to have a gun. But if other reasons were considered equally or more important, why on Earth wouldn’t they have been mentioned as well?

To use your argument style, if that’s what they meant, how hard would it have been to say so?

Ignoring the snideness of that question - Yeah, but that cuts both ways. As Cecil said, it’s no model of clarity. If they were hell-bent on protecting the right to individual self-defense, “how hard would it have been to say so?” The Second Amendment could have been written more clearly, but it wasn’t. You can’t use that fact only to support your side of the argument.

[blowero]

@furt

IMO, As others have pointed out, the first clause is naming the most compelling political reason for the right listed in the second clause. As UncleBeer has said, this conversation is only possible if we ignore the copious explanatory writings of the founding fathers.

According to what 2sense has just posted, UncleBeer appears to be seriously in error as to who wrote the Bill of Rights. As I said before, the founding fathers were not a monolithic entity of one mind on every issue. I think there’s a certian tendency for blogs to selectively pick quotations that support the pro-gun view, and pretend that such a view was unanimous.

I’ve never, ever heard anyone make a constitutional gun control argument based on anyhing other than that half-sentence.

Really? I have.

As to why self-defense and hunting were not listed … ask yourself how you’d feel if Bush announced that he was supporting a law guaranteeing the right for people to go to any church they want. I know I’d be pissed off at his fatuousness, because A) I already have that right and no one else was even considering taking it away and B) the fact the he even suggested it implies that he thought the right wasn’t already obvious, and that would scare me.

Now you’re getting absurd. You’re saying that they didn’t mention self-defense or hunting out of fear of people being offended because it was “obvious”? Do you have any kind of cite for this?

I submit that in a country where most people were rural farmers and where there was not a single policeman on the continent, it would have been the height of arrogance (and political suicide) to suggest they were even considering taking away the tool many people depended on for food and safety.

Again, you are conflating the idea of “not constitutionally protected”, with the idea of “banned”. A farmer doesn’t have a constitutional right to a plow; that doesn’t mean the government is taking away farmers’ plows. Not sure how many times I’m going to have to make the same point here.

[UncleBeer]

@minty green

That link and that claim are every bit as misleading as when you posted it last month. The “ninety-two opinions issued by the Supreme Court” include a large number of concurring and dissenting opinions that in no was can be attributed to “the Supreme Court.”

Horsemuffins. I in no way made any inferences about those opinions. I merely said the Supreme Court has issued 92 opinions which specifically mention the second amendment in refutation of the prior claim that the Supreme Court has been largely silent on the 2nd amendment. What’s misleading about that? I made no qualitative judgments about the nature of those opinions as you are suggesting. They’re all right there in that book. Word for word.

Your claim that opinions published by members of the Supreme Court “can in no way be attributed to the Supreme Court” is wholly laughable. Are you seriously making the contention that dissents and concurrences written by the Justices of the Supreme Court in the execution of their office aren’t attributable to the Supreme Court? They are routinely cited in arguments before the Supreme Court and all other courts; they’re acceptable as citations in thousands of arguments before courts up and down the entire hierarchy of the judicial branch. If these opinions aren’t attributable to the Supreme Court, then, to who, or what, are they attributable? These nine guys in robes aren’t writing their legal opinions while teaching nights classes at your local community college. They’re writing them as members of the Supreme Court to address issues they believe need to be stressed that often are ignored, or not brought out in full detail, in the majority opinion.

Here’s what I said about that book for your convenience (url tags fixed herein):

@UncleBeer

You might also wish to review 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.

See? Not a single damned word about the nature of those SC opinions. Just that they exist.

@2sense

I make no claim to have read all of the Federalist but am I unaware of any discussion of the right to bear arms. How about citing chapter and verse so we can see for ourselves? I guarantee none of the letters refers to the 2nd Amendment because they were released between Oct 27, 1787 and Aug 16, 1788. IOW- before the First Congress.

First, let’s dispense with the claim that none of them [the Federalist Papers] refer to the 2nd amendment because of the time frame in which they were released. That claim is nonsense. The first ten amendments, the Bill of Rights, were the what, second?, issue taken up by Congress on the very first day it assembled—March 4, 1789; the agenda was already set. The idea of a Bill of Rights was raised during the discussions that took place in, and around, both the Federalist and Anti-Federalist. There was much text proposed to be included in the Bill of Rights, should the 1st Congress decide to put such forth for ratification. The actions of Congress in regards to adopting the actual text of the proposed Bill of Rights, was mostly to pare down the existing ideas and recommendations to something fitting the “say-more-with-less” nature of the Constitution. The Federalist, and the Anti-Federalist, were the very foundation, the very genesis, of the Bill of Rights. Further, many of the concepts contained in the Bill of Rights were formed around the Bill of Rights adopted by the English Parliament in 1689. You seem to be claiming that the idea, and the text, of the Bill of Rights formed spontaneously in the chamber(s) of the 1st Congress. This is untrue.

Anyway, on to what Madison had to say about arms, the militia, and the people at large in the Federalist.

Federalist #46 by James Madison published in the New York Packet on January 29, 1788 says:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

I have italicized the portions where Madison is talking about an armed citizenry, a militia. He believes it will be comprised of 500,000 men and their arms and that this militia will act as a counterforce against a federal standing army in the event that the federal government is usurped by tyrants. The underlined portion within the italics is where Madison describes the nature of the arms to be used by the militia. He clearly states that “The People” are armed. And I think it highly unlikely that Madison believed the several states would have the financial ability, or the manufacturing capacity, to provide arms for the 500,000 men of this militia.

This passage is the very foundation of the second amendment. First we can see Madison’s concerns that a state militia is necessary to ensure the federal government doesn’t become despotic and use any standing army which may exist to further that cause. That’s the nature of the first phrase in the second amendment. The second portion of that amendment concerns the nature of the ownership of the arms to be used by the militia; those arms must have been the property of the citizens as there is simply no other source for them and the states would have been totally unable to procure such a mass of weapons. Those arms had to be owned and provided by “The People.”

There is also Federalist #29, authored again by Madison and published in the Daily Advertiser on Jan 10, 1788. I quote this portion:

By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

The first paragraph outlines Madison’s concerns about a federal standing army and how that could be manipulated. Obviously, such an aggregation of men is anathema to him, but he allows that it could happen. The second paragraph describes the hardships to the public as a whole of maintaining a well-regulated militia as a counterforce to the federal army (I have underlined that specific passage.) I have italicized the portions of the second paragraph where Madison tells us of more reasonable expectations of the counterforce. You will note that he recommends that the people at large be properly armed and equipped. There’s no mention of the source of these arms and equipment, but since the states didn’t have stockpiles of arms at the time, one must assume that the arms were to be provided by “The People At Large.” Again, that is the only possible source of a large number of arms at that time. The financial and manufacturing resources to produce them as quickly as needed simply didn’t exist at that moment in history.

In the third paragraph, I have italicized the closing sentences. This passage amplifies the make-up of Madison’s recommended militia. It can in no way be interpreted to mean anything other than that private citizens, skilled in the use of their own arms, were to form the body of this force. I should also note that Madison, given that a standing army was anathema to him, intended that armed private citizens would not only provide a force countervailing a standing army gone wrong, but were actually intended to provide for the common defense against outside aggressors. That what he’s saying in the first portion(s) of the third paragraph.

The Federalist, as collected and published by John Jay, may be found here in its entirety:
http://www.foundingfathers.info/federalistpapers/

@2sense

Those aren’t three of the main authors of the Constitution or the Bill of Rights. Madison certainly qualifies on both counts but not the other 2. Hamilton and Jay took executive and judicial positions respectively in the new government. They weren’t in Congress to help draft the first amendments nor was Jay even a member of the federal convention which wrote the Constitution.

That’s right. The information I posted earlier is in error. My apologies for any confusion it has caused, Thanks, 2sense, for giving us the correct information.

[UncleBeer]

Oh yeah. We also have Madison’s proposed Bill of Rights, dated June 8, 1789:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Here we can see some of the actual language from which the 2nd amendment was drawn. This single statement alone is more than ample evidence that it was private citizens who were intended by him to keep the right to own arms. Note the confusing commas in the 2nd amendment, as it stands now, was originally a semi=colon, delineating an idea that stands on its own with no modifying clause.

http://www.federalist.com/histdocs/madamend.htm

[erislover]

@blowero

Again, I disagree. My reading of the sentence is that the second half is contingent upon the first half. Your reading renders the first half irrelevant.

It is not irrelevant at all. It gives a justification that will always be true, in case anyone has any doubts that guns are only meant for hunting for food (which supermarkets render irrelevant), or for target shooting (which could be banned like any dangerous entertainment).

Yet the authors didn’t feel any need to qualify that amendment, nor provide “examples” of why free speech is important.

Which, as ever, works against both of us.

You realize my beef is with your word, “obvious”, right? I could give a shit if you think the second amendment is really about sausages.

If I understand the argument several of you are making, you’re saying that the 2nd Amendment refers to militias merely because it’s an example of a reason to have a gun.

It is the example. But it is not an exhaustive list of examples.

As Cecil said, it’s no model of clarity.

As you said, it is “obvious”.

You can’t use that fact only to support your side of the argument.

I don’t believe I’m using ambiguity to support my argument, but an appreciation of historical context in order to interpret an ambiguous phrase. I guess that’s not obvious.

[minty_green]

@UncleBeer

Horsemuffins. I in no way made any inferences about those opinions. I merely said the Supreme Court has issued 92 opinions which specifically mention the second amendment in refutation of the prior claim that the Supreme Court has been largely silent on the 2nd amendment. What’s misleading about that?

Uttering the words “the Second Amendment” says nothing whatsoever about the Second Amendment. Most of those opinions do nothing more than that. It is therefore highly misleading to cite them as evidence that the Court has been profuse in its explication of the Second Amendment.

@UncleBeer

Your claim that opinions published by members of the Supreme Court “can in no way be attributed to the Supreme Court” is wholly laughable. Are you seriously making the contention that dissents and concurrences written by the Justices of the Supreme Court in the execution of their office aren’t attributable to the Supreme Court?

Darn straight. Look at the header to every Supreme Court opinion. It will say something like this one, from Monday’s case on the Pledge of Allegiance:

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O’Connor, J., joined, and in which Thomas, J., joined as to Part I. O’Connor, J., and Thomas, J., filed opinions concurring in the judgment. Scalia, J., took no part in the consideration or decision of the case.

Only a majority opinion is attributable to the Supreme Court. Concurrences and dissents–i.e., opinions that were rejected by the Court–are attributable only to their authors and those justices, if any, who join in that opinion. As a litigator, I’d be in a heap of trouble if I tried to pass off a losing opinion as an opinion of the Supreme Court–you always have to state that what you’re citing is a concurrence, dissent, or even a plurality unless it represents the majority opinion of the Court.

@UncleBeer

[Concurrences and dissents] are routinely cited in arguments before the Supreme Court and all other courts; they’re acceptable as citations in thousands of arguments before courts up and down the entire hierarchy of the judicial branch.

Not really. Sure, there’s nothing improper about citing them (so long as you acknowledge that they’re dissents/concurrences), but they don’t have any legal effect, so why bother? Indeed, if you’re trying to get a court to accept your position, citing a dissent in support of your position is counter-productive, since it just highlights that your position has alreadt been rejected. About the only time you would want to cite a dissent or concurrence is when you’re trying to get a court to overturn its previous ruling, e.g., “Justice Scalia was completely right when he said that the majority’s decision would result in an empidemic of legalized necrophilia.” So basically, in practice, you just don’t see that many dissenting opinions cited in briefs, at least not the ones by good litigators.

@UncleBeer

See? Not a single damned word about the nature of those SC opinions. Just that they exist.

Misrepresentation by omission is still misrepresentation.

[UncleBeer]

Concurrences and dissents–i.e., opinions that were rejected by the Court–

Concurring opinions are rejected by the Court? Why ever would they do that? In actual fact, even dissents aren’t rejected by the Court. Your chronology of events is wrong. Dissents and concurrences are written *after, or during, the authoring of the majority opinion. And the Supreme Court never votes on whether to accept, or reject, an opinion. Not a dissenting opinion, not a concurring opinion, not even a majority opinion. The opinions are written after the court has heard testimony, deliberated and voted. there’s no subsequent vote to accept or reject what happens after an opinion is written.

Uttering the words “the Second Amendment” says nothing whatsoever about the Second Amendment. Most of those opinions do nothing more than that.

In this you are simply wrong. Go read the opinions. Whaddaya think, the justices are simply tossing the phrase 2nd amendment into their opinions for the sheer hell of it? If something’s mentioned, it’s to make a point.

Darn straight. Look at the header to every Supreme Court opinion. It will say something like this one, from Monday’s case on the Pledge of Allegiance

And I suggest you look here: http://www.supremecourtus.gov/opinions/info_opinions.html regarding what the Supreme Court considers its published opinions. The simple fact is that opinions—majority, concurring and dissenting—are all published under the authority and guidance of the Supreme Court. As such, they are attributable to the Supreme Court. The Court itself goes so far as to say that all of these publications “contain the final, official opinions of the Supreme Court of the United States.” Here, go download one of these monster .pdfs and you’ll published dissenting and concurring opinions for nearly every case. What’s more, the footnotes to the opinions often make reference to dissenting opinions from previous decisions.

Once again, the Supreme Court has been anything but silent on the second amendment.

[UncleBeer]

And there’s more. Check Rule #41 - Opinions of the Supreme Court in the attached pdf titled Rules of the Supreme Court. It says, in part:

Opinions of the Court will be released by the Clerk immediately upon their announcement from the bench, or as the Court otherwise directs. Thereafter, the Clerk will cause the opinions to be issued in slip form, and the Reporter of
Decisions will prepare them for publication in the preliminary
prints and bound volumes of the United States Reports.

And let’s see just what “slip form” means:

Slip Opinions. Several days after an opinion is announced by the Court, it is printed in a 6" x 9" self-cover pamphlet called a “slip opinion.” Each slip opinion consists of the majority or plurality opinion, any concurring or dissenting opinions, and the syllabus.

Now, make us all laugh again and tell us one more time that dissenting and concurring opinions cannot be attributed to the Supreme Court.

[blowero]

@erislover

It is not irrelevant at all. It gives a justification that will always be true, in case anyone has any doubts that guns are only meant for hunting for food (which supermarkets render irrelevant), or for target shooting (which could be banned like any dangerous entertainment).Which, as ever, works against both of us.

But a justification is not required. IIRC, none of the other amendments offer justifications. Obviously (gasp! - he said that word), the authors didn’t feel that the bill of rights required justifications. So no, that only works against your point of view.

You have presented a theory as to the meaning of the first clause. I happen to disagree with your theory.

You realize my beef is with your word, “obvious”, right?

Yes, I can see that really stuck in your craw. I have no idea why. I’d suggest you get over it.

It is the example. But it is not an exhaustive list of examples.

That makes no sense. If it is part of a list of examples, then it is an example.

As you said, it is “obvious”.

I’m sorry, I can’t find where I said that. Could you quote me please, or direct me to the numbered post where I said that? I’m fairly certain I never said that the Second Amendment was a model of clarity, so I don’t understand your attempt to imply that I have contradicted myself.

[blowero]

@UncleBeer

Oh yeah. We also have Madison’s proposed Bill of Rights, dated June 8, 1789:

Here we can see some of the actual language from which the 2nd amendment was drawn. This single statement alone is more than ample evidence that it was private citizens who were intended by him to keep the right to own arms. Note the confusing commas in the 2nd amendment, as it stands now, was originally a semi=colon, delineating an idea that stands on its own with no modifying clause.

Well then that doesn’t speak well for your point of view. If his proposed text was modified to place the ‘militia’ part first and replace the semicolon with a comma, it would seem to indicate that they wanted to de-emphasise the individual-rights part of the equation. I think you just shot your argument in the foot.

[UncleBeer]

Not at all. As I said, the 1st Congress’ actions on the proposed Bill of Rights text was to pare it down, make it less wordy. I don’t see how simply re-arranging the phrases and substituting a comma for a semi-colon substantively alters the meaning of the clause, “the right of the people to keep and bear arms shall not be infringed.” What you see in the second amendment is the result of Congress’ attempt to streamline the language; they weren’t necessarily changing the meaning.

Also, note that the date on Madison’s recommendation (June 8) is well after the Congress convened (March 4) and began discussion of the proposed Bill of Rights. It’s not that Madison’s recommendation was altered to the current wording of the second amendment, it’s that Madison was offering an alternative wording which he thought more closely expressed the intent of the authors and the sense of Congress.

[erislover]

Ah, of course, it wasn’t “obviously” it was “clearly.” My mistake.

[blowero]

@UncleBeer

Not at all. As I said, the 1st Congress’ actions on the proposed Bill of Rights text was to pare it down, make it less wordy. I don’t see how simply re-arranging the phrases and substituting a comma for a semi-colon substantively alters the meaning of the clause, “the right of the people to keep and bear arms shall not be infringed.” What you see in the second amendment is the result of Congress’ attempt to streamline the language; they weren’t necessarily changing the meaning.

You just got through saying the later wording was more confusing, now you’re just saying it’s “streamlined”. And how does reversing the order of the clauses “streamline” it?

Also, note that the date on Madison’s recommendation (June 8) is well after the Congress convened (March 4) and began discussion of the proposed Bill of Rights. It’s not that Madison’s recommendation was altered to the current wording of the second amendment, it’s that Madison was offering an alternative wording which he thought more closely expressed the intent of the authors and the sense of Congress.

Do you have any evidence to back up this assertion? Because you admitted yourself that the revised wording less clearly delineates the idea of gun ownership as being a seperate concept from that of a militia. Why would Madison want a wording that less clearly expressed what he ostensibly wanted to convey? I don’t know what your dates have to do with anything. Clearly, the original wording was discussed at some point, and changed to the final wording.

The more likely explanation, and one I have heard expressed by historians, is that the latter wording was a compromise, and intended to de-emphasize the individual-rights idea.

[blowero]

@erislover

Ah, of course, it wasn’t “obviously” it was “clearly.” My mistake.

The reason I asked you about it was because you were incessantly hammering on me about my use of the word “obviously”, posting one snide comment after another, and I wanted to respond. I appreciate you admitting your mistake, but could you at least provide a quote of what it is that I actually did say, since you apparently looked it up? I can’t tell if your post is supposed to be sarcastic. If you believe I was making a picayune point about having used a different word than the one you claimed I did, I assure you that’s not what I was doing. I honestly couldn’t figure out what statement of mine you were harping on.

[UncleBeer]

Do you have any evidence to back up this assertion? Because you admitted yourself that the revised wording less clearly delineates the idea of gun ownership as being a seperate concept from that of a militia. Why would Madison want a wording that less clearly expressed what he ostensibly wanted to convey? I don’t know what your dates have to do with anything. Clearly, the original wording was discussed at some point, and changed to the final wording.

Evidence for which assertion?

That Madison offered an alternative wording to the second amendment on June 4, 1789? Yeah. It’s in that link above. And again here: http://www.federalist.com/histdocs/madamend.htm

The assertion that Congress began discussing the merits of attaching a Bill of Rights to the Constitution as their second matter of business? Yeah. Joyce Lee Malcom’s To Keep and Bear Arms: The Origins of an Anglo-American Right

You just got through saying the later wording was more confusing, now you’re just saying it’s “streamlined”.

Streamlined, yep. Less wordy. More concise. The original text was very much along the lines of what we find in Virginia’s Declaration of Rights - Section XIII written by George Mason and heavily influenced by Thomas Jefferson. It says:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Then, Madison’s proposed language was considered. Again, it says:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Ultimately, a compromise version, one significantly reduced in word count, was reached and put before the states for ratification. This is the text that appears in the second amendment today:

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.

Lots of verbiage deleted along the way. That’s pretty much what the 1st Congress did with all the proposed articles to be included in the Bill of Rights. Chop, cut down, redact and streamline. Support for all of this is also contained in Malcolm’s book linked above.

To address your question of why Madison “want[ed] a wording that less clearly expressed what he ostensibly wanted to convey,” the answer is, he didn’t. He had his own proposed language. That’s linked here twice now. The reason we got that compromise version that’s in there now, is exactly that, it’s a compromise. Unfortunately, when that’s all that one looks at, it’s not entirely clear today that the authors were referring to a private right to arms. Ya gotta go back and look at everything that was considered and the rationale for all that stuff.

Also, and quite important to note, Madison didn’t think a Bill of Rights was necessary at all. He said of the Bill of Rights in a speech delivered before Congress (also on June 4, 1789) the Bill of Rights was “neither improper nor absolutely useless.” Much later, in 1821, Madison had this to say about his authorship of the Bill of Rights: “those safe, if not necessary, and those politic, if not obligatory, amendments.” Remember Madison was a Federalist and a Bill of Rights was initially proposed by the Anti-Federalist camp. Thus, what we have now is a compromise, and that compromise was over an issue that Madison wasn’t convinced was necessary to begin with. In that light it’s not unreasonable to assume that Madison had little interest in forcing his version of the test. His interest in the Bill of Rights was limited using it to persuade the last remaining Anti-Federalist holdouts that they’d have some guarantees and assurances that the proposed federal government wouldn’t have a free hand at usurping the rights the people and the states enjoyed under the Articles of Confederation.

[erislover]

blowero, I frankly can’t explain my previous irritation. So let me apologize for my behavior. But here’s where it started. It began with this statement by you

You guys are missing a major point. If we assume that the 2nd Amendment protects the right to form militias, that doesn’t mean that you CAN’T own firearms individually, it merely means that the decision is left to THE STATES.

My response was that it wasn’t the obvious conclusion. It is a conclusion, and one that the courts seemed to be leaning towards, but it isn’t a major point. It seems strange to me that they would bother with the second part if the first part was complete as such–if they only wanted to allow armed militias outside of federal control, there is no need for the second part at all. If all they wanted was to permit individual ownership, there is little reason for the first part. In a vacuum, I’d suggest that they meant for no federal control of arms per se (probably guns, not bombs and cannons, but again, we’re in a vacuum), and no regulation of the obvious use of those guns: non-federal militias.

Outside of a vacuum, the conclusion becomes murkier. You argue,

Under the collective interpretation of the Second Amendment, states can pass laws regulating individual ownership of guns, but it doesn’t mean they have to.

This is a very tough thing to read into it for me, not just because of the context in which the document was written. As we both agree to later, states must act within the federal constitution–just because the federal government has stated it can’t descriminate doesn’t mean that states reserve that right; similarly, just because the federal government cannot impede free speech doesn’t mean the states reserve that right, either. The collective interpretation seems quite narrow by comparison. If that is what they meant–well, these are the things for debate, but it is not a huge point.

The question, to me, is how we can reconcile the first part with the second part, not which has more importance.

Let’s look at the first amendment as an example of this narrow interpretation.

@Founding Fathers

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Are books free speech? Movies? Video games? Because none of these are mentioned. This is why I bring up the “non-exclusive” issue. This is also why I question your leaning on the states’ reserved right to regulate guns; would you agree that the states’ reserve the right to ban speech?