Here comes another hare-brained scheme to put “well-regulated” back on the table when it comes to second amendment rights.
Building on Boris B’s cite of US v. Miller, what if each county and parish in the country had regular musters of the militia. At that time, there would be training given on gun safety and what to do in the case of an emergency, and all those that showed up would be given permits to bear arms for the common defence.
Those that did not go to muster would be subject to penalties for carrying their guns. If you had gone to muster, you could wear your gun wherever you wanted, but still be subject to arrest for using it illegally (of course).
I just can’t stop being Beelzebub’s lawyer on this topic. I’m just trying to find a way to reconcile both parts of the amendment, without ignoring either.
If I recall from my history classes, the original purpose of the Second Amendment was not to enable revolution, but to protect against it, i.e., a military coup d’etat. The idea is, that if only the official military has weapons, nobody can stand in their way if some general gets too greedy. By this interpretation, the citizenry ought to have the right to own ANY form of weaponry allowed to the formal military. Of course, maybe this means that the military shouldn’t be allowed to have certain weapons, either.
Then again, I have been in Montana for the past eight months, so maybe that’s influencing my ideas
“There are only two things that are infinite: The Universe, and human stupidity-- and I’m not sure about the Universe”
–A. Einstein
Chronos, cite some sources, please, for that interpretation.
Cecil pretty clearly stated in his column that the reason for the Second Amendment was to enable the same sort of activity that had resulted in successful resistance to the British imperial army. This probably meant both the ability to resist and the ability to commit insurrection.
We discussed (among other things) the type of weapons that should be regulated, and the extent to which the Amendment becomes irrelevant depending on that in this thread: Second Amendment Infringement. We talked about the need for the amendment (that is, its relevancy to today’s society) at this thread: Second Amendment Necessity.
As I pointed out above, if the clause about a ‘well-regulated militia’ was removed from the Amendment, it would be pretty clear that the right is a personal right; that is, one intended to keep persons themselves safe, whether from criminals, the government, or space aliens. But the addition of the clause, which must be considered when interpreting the meaning of the Amendment, clouds this issue. Is a ‘militia’ that is ‘well-regulated’ something that only a local government (such as a state) can implement? Or can a private militia be allowed, and if so, can it be well-regulated? Even if it is, does that mean that the right is still and individual right, or is it a collective right?
In an interesting development on this issue, Larry Tribe, the noted liberal constitutional scholar (and author of the seminal book American Constitutional Law) has recently changed his mind on this issue. After arguing for years that the Second Amendment creates a collective right, in his most recent edition of his book, he changes his mind and asserts that it creates an individual right.
“Is a ‘militia’ that is ‘well-regulated’ something that only a local government (such as a state) can implement?”
Yes. The Constitution and the Federalist papers ( http://www.mcs.net/~knautzr/fed/fed29.htm ) make it clear that the sole power to appoint officers to a militia resides with the states.
“Or can a private militia be allowed, and if so, can it be well-regulated?”
I don’t see how a private militia could exist legitimately. The militia is all the armed, law-abiding, private citizens. Any organization with privately-appointed officers, with a membership governed by a discipline other than that prescribed by Congress, is not an authentic militia.
“Even if it is, does that mean that the right is still and individual right, or is it a collective right?”
It’s an individual right, limited as usual by the statutes that State and Federal governments are allowed, by the Constitution, to pass - laws that organize, discipline, and train.
I think it would be reasonable under the Second Amendmant, but I don't think the interpretation needs to be that narrow.
Personally, what I would like to see is firearms treated like cars are now--to get a license you merely need to show reasonable ability, that license won't be taken away without cause, but will be taken for misuse. Like a car, the license should be required to be available any time a firearm is "used"--I would define this as an operative firearm and ammunition available. As with a car, you should have the right to use it on private property with the owner's permission but no government requirement, although I would define the location of the firearm to extend to the maximum distance a bullet could reasonably travel. (In effect, this means the law applies almost always on private property, except for shooting ranges with bulletproof enclosures.)
On the other hand, there is enough historical precedent for registration leading to later confiscation--I would not register *GUNS* per se, merely their operators. Thus if there was an attempt as confiscation, they don't know what you have, or even if you have any (anyone whose job dealt with guns would have to have a license, even if they didn't own a gun themselves.)
The license fee itself should be minimal, only the cost of administering the test. They should not do like what was done locally with concealed carry--required classes. What good does sitting in a class do? What counts is if you know what the class teaches!
And as I pointed out, if the second half of the sentence was removed/rephrased from the amendment, it would be pretty clear that the right is a collective right. I always hear a lot of arguments about “if only the framers of the constitution had removed the first part to make it clear”, but what if the first half of the sentence is the essential part, and not the second half?
Arnold, you’ve raised a good point, but I think you need to keep in mind the grammar of the Second Amendment. The first bit is a subordinate clause, “A well-regulated militia, being necessary to the security of a free state…”. It can’t stand on its own. I’m not saying the first part is legally/morally less important than the second part, but grammatically, it is.
If you were to make the simplest modification on the first bit needed to make it independent, it would make grammatical sense but not really have any legal impact. “A well-regulated militia is necessary to the security of a free state.” The Second Amendment is grammatically problematic in the first place, incorporating a “comma splice” as it does. Revisionists have made the case that the comma shouldn’t be (or “isn’t really”) there, but my copy has it, and I’m sticking to it.
Hopefully, I can convince you to accept “hopefully” as a disjunct adverb.
Frankly, I would be lying if I said I were confident.
Perhaps this subject is simply too complex for me to explain.
Unfortunately, I would be lucky to explain my way out of a paper bag.
10 years ago the Supreme Court noted that the phrase “the people” in the Second Amendment has the same meaning in both the Preamble to the Constitution and in the First, Fourth, Fifth, and Ninth Amendments. (United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 1990). The Court also held that the phrase “the people” “seems to have been a term of art employed in select parts of the Constitution.”
To top it off, I got this from Jerry Stratton:
The 2nd amendment isn’t hard to understand. There is this thing called a “well-regulated militia”, and it is necessary for the security of a “free state”. Therefore, the right of the people to keep and bear arms shall not be infringed. The first part is a reason, and it doesn’t even have to be the only one. The second part is a statement, and it stands on its own. If it wasn’t about guns no one would question that the right of the people is the right of the people.
“Dead deer, being necessary for the stocking of a well-rounded larder, the right of the people to keep and bear arms, shall not be infringed.”
Does this sentence make sense? Of course it does. Does it say that the right in question is the right of dead deer to bear arms? Of course not. The writer obviously believes that the right of the people to keep and bear arms is necessary for there to be dead deer. -
Loren, excellent suggestion to register the gun operators, not gun owners or the guns. It sounds like a reasonable and practical approach.
It does seem to overlook the parallel with automobiles, though. Currently we not only register drivers (DL), but also the automobiles (license plates/registration). So with cars we register both. That is a worse solution to the gun ownership issue, don’t you think?
As for the training classes, I’m not sure what all is involved, but doesn’t it include some class lessons not only on gun safety, but responsibility of usage? After all, there are legal ramifications to using a gun even in self-defense, isn’t the point of the classes to discuss that topic?
However, we register cars for a very different reason than we register drivers. Drivers are certified as reasonably competent. Car registration has very little to do with competence, and what little it has to do is only in those areas with emissions or mechanical testing of cars.
Cars are registered as a form of tax on road usage (in theory at least to pay for roads--in practice, some money goes elsewhere) and because a car is rather anonymous.
The only parallel you could draw with guns is the anonymous nature--a parallel would be registering a bullet and shell casing for their ballistics marks. My understanding, though, is that at least the bullet markings are easily changed.
I have never taken such classes, only read about them. However, I don't think it matters what they cover--if you can pass a test, you shouldn't need to take the class. Suppose I move from one concealed-carry state to another with somewhat different requirements. Under the current system, I'm going to have to spend a few days retaking redundant classes.
I am aware that the first part of the amendment is a subordinate clause. However, the sentence seems to me to be saying this (paraphrasing)
“People need the right to have weapons because a well-regulated militia is a necessary component of a free state.” I see both parts as essential to the amendment, and many people like to suggest the first (subordinate) clause is minor and could be removed.
Crafter_Man, your example
“Dead deer, being necessary for the stocking of a well-rounded larder, the right of the people to keep and bear arms, shall not be infringed.”
would mean to me
“People need the right to have weapons because they need to hunt deer for food.”
If the amendment was stated that way, it would obviously no longer apply to today’s society and could be repealed.
I see what you’re saying, Arnold. And now that I think about it, you could chop the 2nd Amendment into two halves, each with legal ramifications. The first, and obvious one, “The right to keep and bear arms shall not be infringed.”
The second, less obvious one, “A well-regulated militia is necessary.” This one obviously implies that good militia regulation is mandatory.
How do you figure? People still need to eat. There’s an awful lot of people that really like venison. Do we really want to get into a hunting debate here? If people still kill and eat deer with their guns, how can you say it no longer applies to today’s society?
“Give a man a fire and he’s warm for a day, but set fire to him and he’s warm for the rest of his life.”
How do you figure? People still need to eat. There’s an awful lot of people that really like venison. Do we really want to get into a hunting debate here? If people still kill and eat deer with their guns, how can you say it no longer applies to today’s society?
“Give a man a fire and he’s warm for a day, but set fire to him and he’s warm for the rest of his life.”
We require license plates on vehicles to help track cars to their owners. That way if they are used in a crime or stolen, they can be identified quickly. We license vehicles to make sure they are safely operable - that is why it must be inspected prior to registration. The parallel would be inspecting guns to make sure they operate properly, are not damaged in the mechanism, and have proper safety devices such as gun locks. And they would have to have an identifier tag, with a code (bar code?) and registration to the owner’s name, and you would have to fill out a form every year and pay a fee to state you still own the gun. All for if they are used in a crime or stolen. (Note that the same way guns can be stolen and then used and thus throw off the track, so can automobiles. And license plates can be swapped, etc. It is not foolproof.)
So you are proposing a system similar to the way we do with driver’s licenses - move to another state and have reciprocal exchange without retesting. I do not see that as a problem that cannot be sorted out.
The only issue I can find with your complaint is this: at my job we have certain safety training requirements that must be met periodically; some annually, some less frequently, but designated periods. I think gun permits work that way, too. You are required to have a certain number of training hours in a regular period to maintain your status. The purpose is not necessarily to teach you something new, but remind you of what you should already know. Similar to conducting fire drills, where you practice the proper response. Classes are a substitute for practicing getting robbed and deciding how to respond. It is similar to CPR certification. Even EMS personnel have to periodically reattend the classes to stay certified, even if they can pass the test.
What I meant, CrueltyToFoliage, is that people don’t need to hunt to get food. The vast majority of the inhabitants of the USA are perfectly able to feed themselves without hunting.
Interesting Twist on this - what do you all think about the recent events in Miami, where INS agents with Machine Guns went in to get a six year old child, and in the process pointed the guns at the child and those watching him at the time? Spooks me, for sure. I did not believe they would go so far, and I fear the type of gevernment that I see here. Anyone with a badge can assert any level of authority now? ’
I am one who depends on Govenment for many things, but I am also one who fears the display of force in recent years, especially agains the very citizens of this country, the ones who give this Govenment their power.
How do we protect our society from criminals without trampling all over our rights?
Boris B., thanks for your post. Given your name, are you at all familiar with the former Soviet Union? Well in any case, one of well known scenes in that former regime was to have government break down your door and take family members off to “political” prison. Do we need to wait for that to start here? It seems we are too close, and I would not want to see a dis-armed population having to face an all too powerful Government. Just my 2 cents.
I don’t understand Justice Department policy well enough to know why they chose to take MP 5s on the raid to recover the Cuban boy. I also am not sure why people say they pointed guns at the family. People who are not eye-witnesses to the event have seen only photographs of it. No matter how obvious it looks in a photo, it is still a two-dimensional image, and you cannot tell if the agent is pointing his weapon at the kid or the adult.
My handle has nothing to do with the Soviet Union per se. It’s just a name that stuck. I don’t think that any amount of gun control or militia regulation will turn the U.S. into the Soviet Union. I don’t think mandated safety training for militia members would increase the odds of the government putting people in political prison.
I don’t really want to sidetrack this into an Elian debate, but I’d like to point out that on Nightline last night, they showed MANY photographs of the event and on one of them, you can see quite clearly that the “safety” on the rifle was ON when it was pointed at either Elian or the so-called “fisherman” who was holding the kid.
A transcript of last night’s Nightline is available here.
Go here if you wish to dowload a video of last night’s show and you will see the photo in question.
