Does the 2nd Amendment provide a right to self defence in one's home? (D.C. suit)

[The_Ryan]

Minty green

I think it means what the courts say it means…. everbody thinks I’m just offering my own opinion.

Well, I don’t think you’re just offering you’re opinion, but I do think you are offering your opinion. As for what the courts say it means: can you give a clear statement of what the courts “say” it means? I don’t mean citations of court cases (those are fine as support of an interpretation, but they don’t necessarily constitute an interpretation), but a paragraph of one, two, maybe even three sentences which clearly defines what it means.

I believe that the Second Amendment should be interpreted to confer an individual right to bear arms, and that–in accordance with the introductory clause–the right may not be infringed if that infringement would impair the well-regulated militia.

So would the converse be true? May the government (IYHO) infringe on the right to bear arms at will, as long as the infringement does not impair the well-regulated militia?

Jesus freakin’ Christ, buddy, it’s a message board. Somebody posts something, somebody else responds, the first person says that’s not really what they meant, and everybody moves on. Get over yourself already, and quit with the bullshit aspersions of dishonesty.

Move on? You’ve been saying this throughout the thread. Despite been repeatedly told that this is a misrepresentation, you repeatedly state or imply that your opponents are ignoring the constitution. You even did so in your last post. How are you this “moving on”? It’s not like I’m still harping on you for something you said on the first page.

I believe this because of the principle of legal interpretation I described above, and because I believe if the founders hadn’t thought that clause was important, they wouldn’t have put it in there.

Even if we grant that it has some meaning, how does the fact that it has meaning mean that your meaning is the correct one?

Nope, I don’t have the slightest idea what you’re talking about [with regard to the First Amendment applying only to members of a religion].

“But banning speech of atheists is not unlawful. See the first clause of the First Amendment. Religion.” How is this argument any less valid than yours?

I didn’t say I respected everybody in these threads. I clearly said “some people.”

A possible response which I anticipated in the last sentence of that paragraph. A sentence which for some reason you omitted.

[In response to my proposal to give effect to the first clause] Huh?

I don’t see what’s confusing. You’re saying that we must find some way in which the introductory clause affects the Second Amendment. So this is my proposal: without the introductory clause, the Second Amendment says that the people’s right to bear arms is not to be infringed. With it, the Second Amendment says that that the people’s right to bear arms is not to be infringed, and the national military is to involve state militias in its operations. According to this interpretation, the Amendment is different with introductory phrase from what it would be without it. So I am “giving effect” to the phrase, right? So your criterion that everything must be given effect is satisfied. For you to say that you interpretation is better than mine, you must introduce some new criterion, because your old criterion does not distinguish between the two.

[Max_Torque]

*Originally posted by minty green *
I think it means what the courts say it means. Of course, that’s one of the things that kills me about these threads. I drop by to dispell the vast misconceptions about the legal meaning of the Second Amendment, and everbody thinks I’m just offering my own opinion.

Except that you love to quote cases from the 9th Circuit (cases that support your personal interpretation of what the second amendment means) while sniffing derisively at cases from the 5th Circuit (the circuit where, ironically, you reside). I hate to say this, minty, but you and I have argued on this subject many times, and frankly, sometimes it seems as though you only deal with cases and articles that support your own side of the argument. I had to tell you where the Supreme Court said that the second amendment enumerates an individual right, I was apparently the first person to tell you about Haynes v. U.S., and you criticized John Lott based on an article in Newsweek without reading his work yourself. You seem to feel as though you are the Impartial Voice of Truth, but in reality, you’re as agenda-driven as any of us.

Now, if you want to know what the Second Amendment should mean, in my humble opinion, that’s a different question. I’ve also explained it in the past. I believe that the Second Amendment should be interpreted to confer an individual right to bear arms, and that–in accordance with the introductory clause–the right may not be infringed if that infringement would impair the well-regulated militia.

But see, that’s backward. The way you’re saying it, any regulation or restriction is okay, so long as the militia can still function on some basic level. The problem is, deciding what infringements would impair the operation of the militia would first require making some pretty extensive decisions about the militia, or at least a minimum standard of operation. Now, if you’re sitting on some treatise from colonial days indicating a baseline for how the founding fathers wanted the militia to operate, by all means bring it forward. If you’re not, however, you can’t reasonably argue that your interpretation is the original intent of the framers.

[minty_green]

*Originally posted by Max Torque *
Except that you love to quote cases from the 9th Circuit (cases that support your personal interpretation of what the second amendment means) while sniffing derisively at cases from the 5th Circuit (the circuit where, ironically, you reside).

Nonsense. The only 9th Circuit gun control case I’ve ever discussed in more than a passing reference is Silveria from last fall, which inspired a four or five page thread (started by someone else) in this forum. The only 5th Circuit case that’s even on point is Emerson. So I don’t know where you’re getting “cases” (plural) for either circuit. You’re also conveniently overlooking my repeated cites to (as I recall) the 1st, 2nd, 4th, 6th, 8th, and 11th Circuits. But hey, if you want to convince yourself I’m some sort of wacky liberal apologist for the 9th Circuit, well, you’re who am I to deny you whatever version of reality you like?

I hate to say this, minty, but you and I have argued on this subject many times, and frankly, sometimes it seems as though you only deal with cases and articles that support your own side of the argument.

They ALL support my argument, except Emerson. You know, “84 pages of dicta”?

I had to tell you where the Supreme Court said that the second amendment enumerates an individual right,

A case I had not been previously familiar with, that doesn’t even involve firearms at all, that mentions the Second Amendment only in passing, and that is such obvious dicta that it isn’t even listed in the annotations for the Second Amendment for the USCA. Forgive my omission. :rolleyes: (Besides, I agree that it’s an individual right–see above.)

I was apparently the first person to tell you about Haynes v. U.S.

No, but you were the first person to ever seek to (mis)apply it to firearms registration. And it’s hardly like I’ve been hiding from discussing it ever since.

and you criticized John Lott based on an article in Newsweek without reading his work yourself.

Nonsense again. I asked what was the deal with John Lott, who sounded loonier than a northern Canadian lake in August. (Among other things, the Newsweek article I was asking about had Lott working to prove that women’s voting rights turned America all socialist and stuff, plus he insanely argued that all those elderly Jews in South Florida really had intended to vote for Pat Buchanan.) The result of my question–no surprise–was a swarm of gun rights proponents who slammed me for daring to ask the bloody question in the first place. Plus I read the damn book later on anyway, as well as the work of his critics, and have satisfied myself that, indeed, he cherrypicks his data and doesn’t know causation from a hole in the ground. So what’s your complaint? That I asked a question in an attempt to understand what the hell the guy was all about? Please, pardon my gigantic imposition.

The way you’re saying it, any regulation or restriction is okay, so long as the militia can still function on some basic level.

Yep. Precisely what the founders intended when they wrote the amendment: a guarantee of a functioning state militia, should the state choose to have one.

The problem is, deciding what infringements would impair the operation of the militia would first require making some pretty extensive decisions about the militia, or at least a minimum standard of operation.

Nonsense, part the third. The “minimum standard of operation” is a determination to be made by the individual state, not the federal government. If the state determines that every person between the ages of 18 and 80 is required to show up for drilling on the town square one weekend a month and two weeks every summer, and that they each need to be armed with their own assault rifles, then there’s not a damn thing the federal government could do to infringe that, in my personal reading of the amendment. It’s not a matter of Congress or the Supreme Court deciding what the well-regulated state militia should be like. It’s for the states.

[minty_green]

*Originally should have been posted by minty green *
No, but you were the first person to ever seek to (mis)apply it to general firearms registration.

The point of Haynes being that you can’t pass a law that applies only to criminals and that requires them to admit being criminals or they commit a crime. So far as I remember, you’ve still never distinguished the generally applicable laws providing for criminal penalties for failing to reveal criminal activities that I pointed out in reply–e.g., income tax returns and customs forms. In the case of tax returns, I believe the courts have specifically rejected the applicability of your argument, although I hate tax law and would rather not have to go look at those cases for the first time since law school.

[Max_Torque]

*Originally posted by minty green *
**The point of Haynes being that you can’t pass a law that applies only to criminals and that requires them to admit being criminals or they commit a crime. So far as I remember, you’ve still never distinguished the generally applicable laws providing for criminal penalties for failing to reveal criminal activities that I pointed out in reply–e.g., income tax returns and customs forms. In the case of tax returns, I believe the courts have specifically rejected the applicability of your argument, although I hate tax law and would rather not have to go look at those cases for the first time since law school. **

Your memory is short. I’ve said this before. Please listen this time.

The statute in Haynes was a generally applicable law. It applied to criminals and non-criminals alike. The decision itself states this. As a result, the statute was not unconstitutional, but a claim of the privilege against self-incrimination was a full defense for a person who could not lawfully possess a gun failing to register under the law as it then stood.

As for tax and customs forms: I have found cases that hold that a claim of the privilege is not a defense for failing to file a tax return at all, which seems to be the favored way for folks to avoid answering the illegal-income question. It appears, however, that as long as the hazard of self-incrimination is “substantial and real” rather than “unsubstantial,” one may properly claim the privilege so long as one files an otherwise-complete and lawful return.

That’s where it gets sticky: reporting only the amount of illegal income would rarely provide a direct “link in a chain” on the path to prosecution. You’d need a lot more information to convict. Were a criminal to register a firearm, however, he’d be directly admitting to a crime, and nothing more would be needed to put the person back in jail.

As for customs, who knows.

[minty_green]

*Originally posted by Max Torque *
Your memory is short. I’ve said this before. Please listen this time.

The statute in Haynes was a generally applicable law. It applied to criminals and non-criminals alike. The decision itself states this.

Horseshit. Pure, unadulterated equine excrement. The very first sentence of Part I says you’re full of it: “The Act’s requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, ‘if such weapon is capable of being concealed on the person . . . .’” In other words, you were only required to register your gun if the gun was already illegal. This is made clear by the second sentence of Part I: “These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.”

“Generally applicable” my winterfresh ass.

[minty_green]

Oh, and by the way, you really should read the case again. Here’s the bit that reiterates you’re wrong and I’m right:

Nonetheless, these statutory provisions, as now written, cannot be brought within any of the situations in which the Court has held that the constitutional privilege does not prevent the use by the United States of information obtained in connection with regulatory programs of general application. See United States v. Sullivan, 274 U.S. 259 ; Shapiro v. United States, 335 U.S. 1 .

But hey, don’t let the law get in the way of your rah-rah firearms notions.

[minty_green]

Redact “very firstsentence,” insert “second sentence.”

Redact “second sentence,” insert “third sentence.”

Horseshit stet.

[Max_Torque]

*Originally posted by minty green *
Horseshit. Pure, unadulterated equine excrement. The very first sentence of Part I says you’re full of it: “The Act’s requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, ‘if such weapon is capable of being concealed on the person . . . .’” In other words, you were only required to register your gun if the gun was already illegal. This is made clear by the second sentence of Part I: "These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation."

Back up the indignant-sputtering truck, sparky. We’re apparently talking about different things. I meant “generally applicable” in terms of the persons to whom the statute applied. You, evidently, meant “generally applicable” in terms of the things to which the statute applied. Look a little farther down, and you’ll see that there are circumstances where registration is required of one who hasn’t broken the law.

On to your second quote. The first of the cases cited is of the type I described, a case in which the defendant failed to file a tax return at all. Note this sentence from Sullivan: “If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” More recent cases say much the same thing. Shapiro is a really long and dull case concerning whether one can claim the privilege for records that a business is required to keep by statute, which is kind of a different animal, and frankly, I don’t wanna pore through that mess unless you press the issue.

**“Generally applicable” my winterfresh ass. **

Way more than I needed to know about why you’re called “minty green”. hehe

[Crafter_Man]

*Originally posted by minty green *
Crafter_Man, btw, is not a member of a well-regulated militia, so let’s not head down that road.

So when are you going to come over and confiscate my guns, Minty? Or will you have the Alphabet Men to do your dirty work for you?

[DirkGntly]

It seems that we tend to be forgetting a basic tenet of the founding of this country. Primarily, the idea that I have the right to do anything in this country until it is outlawed. We are a country of unenumerated rights not granted priveleges.

As for me, personally, I don’t think anyone has the need to know why/where I purchased a firearm, anymore than a CD player or a television.

[Crafter_Man]

*Originally posted by DirkGntly *
I have the right to do anything in this country until it is outlawed.

But what if the law infringes on your inalienable rights? Do you have a moral duty to follow it?

I obey the law. Unless it infringes on my natural rights…

[minty_green]

I obey the law unless I don’t wanna.

[Crafter_Man]

*Originally posted by minty green *
**I obey the law unless I don’t wanna. **

When you strip away all the intellectual psychobabble, then yes – it basically comes down to this.

[cedric45]

<<Does the 2nd Amendment provide a right to self defence in one’s home?>>

Changing the OP to:

Does the 2nd Amendment provide a means to self defence in one's home?

should change everyone’s answer to… yes.

[ExTank]

MtgMan:

It simply doesn’t matter what minty’s opinion of the meaning of the second ammendment is. He’s not in a position to interpret it for anyone, not even himself. His opinion would carry no more weight than anyone elses.

In the abstract, perhaps. But opinions can be influenced, and that influence manifest at the voting booth(s). So while I tend to agree that “out there” in the “real world,” minty’s opinion may or may not be any more valid than others (I personally acknowledge his legal acumen and experience, even as I argue that the “militia” legal interpretation is not IAW the founder’s intent), here on the SDMB, and especially in this forum, the validity of one opinion can be rather important.

It can range the spectrum from “misguided and uninformed” to “enlightened and reasonable.”

I think this is an oversimplification, if not an outright misrepresentation. Any historical scholar can tell you that “the people” and “the militia” were one and the same in those days. Since we now have a standing army there is no longer a need(in theory we could trust the standing army to protect us from threats, foriegn and domestic) for individual citizens to bear arms. Representatives, the standing army, who are much better trained and equipped are doing that for us. It could be argued that “the well-regulated militia” IS the armed forces, and private citizens have no reason to keep or bear arms.

Sure, if one were to subscribe to “neeeds-based” rights and the belief that a large, standing federal army is the surest guarantee of liberty. Others deny this argument. 4 out of the 5 voices in my head are still out on that one.

Undoubtedly they thought they were being clear. Time has taken these men away from us and the intent behind those words is no longer definitively known.

Perhaps. I think that there is a plethora of historical evidence to suggest exactly what the FF meant, in consencus, if not individually.

This is hair-splitting. You acknowledge the possibility that the subjective clause DOES alter the meaning, and thereby the protected right. The debate should focus on which interpretation is most likely the correct one. Clearly everyone here knows the verbaitum text. If there is a disagreement over what the text expresses then both sides should clearly posit their interpretations and support them.

On this we could not be in more agreement. Unfortunately, the polarized, political nature of the debate and the ever changing nature of historical fact interpretation/revisionism (have you heard of Michael Bellesiles?) makes even this relatively straighforward task nearly impossible.

[Texican]

Back to the question of does the 2nd amendment provide a right to self defense in one’s home…

No, it does not. The bill of rights does not give rights. It aknowledges their existance as a natural right of free people. The 2nd amendment seeks to guarantee that right, not to grant it. That is my opinion.

[SenorBeef]

*Originally posted by minty green *
**Nonsense, part the third. The “minimum standard of operation” is a determination to be made by the individual state, not the federal government. If the state determines that every person between the ages of 18 and 80 is required to show up for drilling on the town square one weekend a month and two weeks every summer, and that they each need to be armed with their own assault rifles, then there’s not a damn thing the federal government could do to infringe that, in my personal reading of the amendment. It’s not a matter of Congress or the Supreme Court deciding what the well-regulated state militia should be like. It’s for the states. **

Correct me if I’m wrong, but under your reading, wouldn’t the NFA 34, GCA 68, assault weapons bans, etc. all be unConstitutional? They clearly infringe upon the state’s ability to maintain a well equipped and well trained (or well-regulated, in 18th century parlance) militia. The federal government is ensuring that the states can’t have an effective militia force, as there are federal mandates banning access to modern military weapons.

I’m guessing you’ll say that the national guard is the militia, but I still don’t buy it. They’re officially (anyone have the case handy? I can’t remember) part of the US national army, not state militias, ultimately under federal command.

[minty_green]

Under my reading, a gun control statute could be unconstitutional as applied to a particular state. Let’s say that Nebraska decides to implement an 18th Century-style militia, requiring all able-bodied citizens between 18 and 45 to show up on the town common one weekend a month and two weeks every summer for training, and that they have to bring their own firearms suitable for military use. In that instance, a federal statute prohibiting the possession of military-style assault rifles would have big constuitutional problems . . . but only as applied to Nebraskans.

Across the river in the great state of Iowa, where the citizens openly laugh at the loonies in Nebraska and where the state long ago decided that the National Guard would be plenty of protection, thank you, the private assault weapons ban would not have any effect whatsoever on the state militia. Thus, the statute would be constitutional as applied to Iowans.

I’m guessing you’ll say that the national guard is the militia, but I still don’t buy it. They’re officially (anyone have the case handy? I can’t remember) part of the US national army, not state militias, ultimately under federal command.

You might want to read the whole thread, since I already refuted this particular falsity on page 3. In fact, the Constitution expressly states that Congress may “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and may also “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 . . . .”

[Susanann]

*Originally posted by SenorBeef *
**

I’m guessing you’ll say that the national guard is the militia, but I still don’t buy it. They’re officially (anyone have the case handy? I can’t remember) part of the US national army, not state militias, ultimately under federal command. **

How can the National Guard be the militia? when the “National Guard” did not even exist in 1789?

The militia was adequately defined by the founding fathers as being the “whole people” .

“I ask, sir, what is the militia? It is the whole people, except for a few public officials.” (George Mason, 3 Elliott, Debates at 425-426)

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Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
—Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.