# Doesn't the 2nd Amendment technically forbid ANY federal gun laws? **URL:** \ **Category:** Great Debates\ **Created:** [March 7, 2008, 2:09am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402 "2008-03-07T02:09:26Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Paper\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/a9adbd/32.png) [@Paper\_Pusher](https://boards.straightdope.com/u/Paper_Pusher)\ **Post date:** [March 10, 2008, 9:43pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/121 "2008-03-10T21:43:41Z")
[QUOTE=pkbites] No, no they haven’t. If you read the cite the National Guard is only the organized militia. The unorganized militia is not the national guard, but the unorganized militia is still the militia. The unorganized militia is you & me, whether you like it or not. Well, not me as I’m over 45. :smack: [/QUOTE] Some people think that the militia argument went out the window when we created a standing army. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 10, 2008, 9:51pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/122 "2008-03-10T21:51:46Z")
[QUOTE=Bricker] If that were true, then it would be the right time to have stare decisis lose the balancing test. As you suggest, I don’t think every case should be set in stone for all time. [/quote] Great. Want to take back your comment about me being “intellectually dishonest” now? > [@Bricker](#): > > But I disagree with you on a basic view of the role of the Constitution, which you see as a very flexible tool to implement the public policy flavor of the moment, and I see as a bedrock set of laws that can legitimately be known collectively as the supreme law of the land. For 7 years, you’ve done these kind of things. The redefinition of how I see, and interpret, the Constitution. It wasn’t valid the first time, the second time, or the 85th time you’ve done it. It’s a cheap, dishonest game that you play, and I, for one, am sick of it. Look, I know we disagree on how to interpret the Constitution. But we could disagree without stooping to misrepresenting each other’s opinions, and without idioitic hijacks of every thread. WE could, but YOU don’t. > [@Bricker](#): > > Yes, because my view is better than yours, and every time you post something touting your view, I’m going to come along and point out how bereft of intellectual honesty your view is. You are results-driven – whatever analytical method works best to get you to the result you wish in any circumstance is the one you embrace. More misrepresentations. Don’t you get tired of doing that. All these years and you’re not a one iota closer to honest debate. > [@Bricker](#): > > In the 8-plus years I have participated here, I have offered countless Second Amendment arguments, and frankly didn’t see much value in doing so again. Bully for you. Don’t in the threads then. If all you have to add is the same old tired crap misrepresenting and dismissing your misperceived views on me and my views, save your time. It’s pathetic. > [@Bricker](#): > > But in a nutshell: either incorporation is valid or it isn’t. There is no logical reason to read parts of the Constitution differently; to conclude that the First Amendment and the Fourth Amendment are incorporated against the states, but that the Second Amendment is somehow exempt from that process. That’s a perfect example of results-driven thinking. We LIKE free speech and freedom from search and seizure, so those are GOOD amendments and are thus incorporated. We don’t like evil nasty guns, so that’s a BAD amendment and isn’t incorporated. Honesty requires that we adopt an approach and apply it to the entire document, not pick and choose which method we will use to discern the meaning of which section. Point me in anything in this thread where I said the 2nd Amendment isn’t incorporated against the States. Go ahead, I’ll wait… > [@Bricker](#): > > There is, now, way too much case law to put the incorporation genie back in the bottle. While in an ideal world, I wouldn’t have had us start down that path, it’s done. So incorporation is a valid process and the Second Amendment applies to the states. We can thus dispose of _Presser_, which was a pre-incorporation case in any event. Great. > [@Bricker](#): > > Now, does it guarantee an individual or a collective right? > > Answering this question again requires that we pick one method of analysis. Every place in the Constitution that “the people” are mentioned outside the Second Amendment refers to individual rights. “The right of the people to peaceable assemble;” “the right of the people the be secure against unreasonable searches.” If I ever suggested that the Fourth Amendment protected only a “collective” right, your head would explode. When the Constitution discusses a power or right of a state, the language is “the States.” The Tenth Amendment makes very clear that the two concepts are separate. I agree. The “people” in the 2nd Amendment does not refer to the militia. It refers to the right of “the people”. > [@Bricker](#): > > Now, the language in _US v. Miller_ that you worship so dearly is dicta. I “worship” Miller? Nice grade school games, there. Snotty, but nice. > [@Bricker](#): > > Miller held that a cut-off shotgun is not a militia weapon, and thus unportected by the Second Amendment. It says nothing about who would be permitted to possess a weapon that WAS a militia weapon. But even assuming that Miller is controlling, it, like Bowers, was simply wrongly decided. And let’s face it: you can hardly point to the factual record in Miller as a shining example of a completely developed argument, considering that one side abandoned their cause. Good thing I never said it was. “If you want to argue US v. Miller grants an individual right, I think you’re wrong and the opinion itself shows you are wrong. There is room to argue that it didn’t find a collective right either, but saying that, with the exception of 2 circuits, every federal court that has considered Miller has been “blatantly wrong” is ludicrious.” It’s a good thing to READ my posts, before deciding what I said. But thanks for actually talking about the thread topic this time. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [March 10, 2008, 10:09pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/123 "2008-03-10T22:09:52Z")
[QUOTE=Paper Pusher] Some people think [/QUOTE] That don’t make it so. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [March 10, 2008, 10:45pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/124 "2008-03-10T22:45:17Z")
[QUOTE=ExTank] You know what? Fuck it. I’m tired of arguing with brick walls. [/quote] [QUOTE=Hamlet] I’m sure you’re excluding me from this little hissy fit. [/quote] More bored and apathetic than hissy. But I don’t like to exclude people; it ain’t polite. [QUOTE=ExTank] The whole thing may be moot in a [little over a week’s time](http://www.nraila.org/heller/) anyway. [/QUOTE] [QUOTE=Hamlet] Quite possibly. If stare decisis, judicial restraint, and deference to the legislature are merely watch words instead of consistent judicial philosophies. [/QUOTE] What’s sad, and indicates that there probably can never be any clear communication or understanding between us, is that I think you posted that with a straight face. The only argument I’ve consistently been persuaded of in these higher-courts debates is that all lawyers must die, for the good of America if nothing else. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 11, 2008, 12:21am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/125 "2008-03-11T00:21:13Z")
[QUOTE=Bricker] Where was your admiration for these principles after Massachusetts gave us _Goodridge_? [/quote] Cite for stare decisis, judicial restraint, and deference to the legislature not having been applied there? :dubious: > [@Saint Cad](#): > > What about the State of Kansas which states that every able-bodies man between 18 and 45 and not a consiencious objector is in the milita? This militia, tell me - is it “well-regulated”? > [@e-sabbath](#): > > I can’t accept it as Elvis’ perspective on the matter, because, well, it doesn’t make any sense. Which is perhaps because it _isn’t_ my perspective. It just doesn’t matter, in practice, what the (oddly sainted) “Framers” may have really meant at the time if there’s a Supreme Court ruling that provides a binding interpretation. Now how many times have I told you that and you’re \*still \* pretending I’ve said something else? > [@](#): > > So, how do you explain the Justice Department and the 5th Circuit Court coming to an expressly opposite conclusion Perhaps political activism by the reactionary activists in both organizations, hoping, in combination with the reactionary activist faction now in control of the Court, to get a ruling they hate overturned, by way of using a case designed and manufactured for that purpose. You surely don’t think someone becomes above such things just by taking an oath or donning a robe, do you? > [@Bricker](#): > > But you can’t haul out a sixty-plus year-old decision How you can pooh-pooh a 59-year-old case on the basis of its age while still revering a 221-year-old document? > [@Hamlet](#): > > The “people” in the 2nd Amendment does not refer to the militia. It refers to the right of “the people”. Could you explain what you mean if it isn’t that “the right of the people” is \*implemented \* by way of the militia? ---
**Author:** ![BrainFireBob](https://avatars.discourse-cdn.com/v4/letter/b/e495f1/32.png) [@BrainFireBob](https://boards.straightdope.com/u/BrainFireBob)\ **Post date:** [March 11, 2008, 6:14am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/126 "2008-03-11T06:14:28Z")
It is logically false to restrict the well-regulated militia to the National Guard, unless it is laid forth in law that the National Guard is the only militia, no new militias may be formed, and all laws reserved to apply to the militia of the US apply henceforth solely to the Guard. That’s the issue I have with your dismissal, Hamlet, and I notice you failed to touch on it, merely asserting again that the National Guard is regulated. That argument being only valid if the National Guard is the only organized militia. There’s also the hanging legal question of whether the ability to form a militia is protected by extension of the 2nd. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 11, 2008, 12:05pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/127 "2008-03-11T12:05:04Z")
[QUOTE=BrainFireBob] It is logically false to restrict the well-regulated militia to the National Guard, unless it is laid forth in law that the National Guard is the only militia, no new militias may be formed, and all laws reserved to apply to the militia of the US apply henceforth solely to the Guard. That’s the issue I have with your dismissal, Hamlet, and I notice you failed to touch on it, merely asserting again that the National Guard is regulated. That argument being only valid if the National Guard is the only organized militia. [/quote] I don’t recall saying that the National Guard is the only “well regulated militia”, what I said is that the current statutory definition of militia makes the National Guard and the Naval Militia the only “organized militias”. I honestly don’t know enough about the individual states and their definitions of militia and any actual regulations they have concerning them. What I was pointing out is that, at the current time, the only thing that I know about that would conform to my reading of “well regulated militia” is the National Guard and Naval Militia. If you know of individual states that have their own militias or of other Congressional legislation in play, by all means let me know. > [@BrainFireBob](#): > > There’s also the hanging legal question of whether the ability to form a militia is protected by extension of the 2nd. I think the ability of the State’s, to form a militia is protected, if it is well regulated. I think that fits with the purpose of the 2nd Amendment. The ability of a bunch of guys sitting around … not so much. Even if these guys are all well trained, as far as I know, they are not “well regulated”. ---
**Author:** ![BrainFireBob](https://avatars.discourse-cdn.com/v4/letter/b/e495f1/32.png) [@BrainFireBob](https://boards.straightdope.com/u/BrainFireBob)\ **Post date:** [March 11, 2008, 7:00pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/128 "2008-03-11T19:00:11Z")
Hamlet, they were mentioned in the thread- such as New York State’s militia. ---
**Author:** ![spazattak](https://avatars.discourse-cdn.com/v4/letter/s/8e8cbc/32.png) [@spazattak](https://boards.straightdope.com/u/spazattak)\ **Post date:** [March 11, 2008, 7:50pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/129 "2008-03-11T19:50:46Z")
The second amendment is the lone section of the constitution that deals with a piece of technology. I think it was a huge oversight on the part of the founding fathers to include it for precisely that reason. The evolution of technology has completely altered the concept of personal arms and it will continue to change even more over time. I think they got way too specific with the wording and we’re going to have to repeal it to solve the problem. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 11, 2008, 8:45pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/130 "2008-03-11T20:45:31Z")
[QUOTE=spazattak] The second amendment is the lone section of the constitution that deals with a piece of technology. I think it was a huge oversight on the part of the founding fathers to include it for precisely that reason. The evolution of technology has completely altered the concept of personal arms and it will continue to change even more over time. I think they got way too specific with the wording and we’re going to have to repeal it to solve the problem. [/QUOTE] I disagree. At issue is not a technology, but a concept - the armed citizen, equipped with whatever personal arms might make an effective soldier in a contemporary military. You might as well say that the First Amendment is invalid because of the vast technological changes that have revolutionized speech and communication. ---
**Author:** ![spazattak](https://avatars.discourse-cdn.com/v4/letter/s/8e8cbc/32.png) [@spazattak](https://boards.straightdope.com/u/spazattak)\ **Post date:** [March 11, 2008, 9:02pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/131 "2008-03-11T21:02:15Z")
[QUOTE=Stealth Potato] I disagree. At issue is not a technology, but a concept - the armed citizen, equipped with whatever personal arms might make an effective soldier in a contemporary military. You might as well say that the First Amendment is invalid because of the vast technological changes that have revolutionized speech and communication. [/QUOTE] Not the same thing at all. Speech and expression aren’t technology. “Arms” is. We’re talking about weapons for personal protection. That’s a physical piece of technology and is guaranteed to be antiquated in short order. Speech, expression, personal freedoms, unreasonable searches and seizures, voting - these are all actions and are completely different than “the right to keep and bear arms”. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 11, 2008, 9:30pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/132 "2008-03-11T21:30:00Z")
The concepts of armed defense of self and defense of liberty are as separate and distinct from the technology of the rifle and the pistol as the concepts of freedom of religion and expression are from the typewriter and the printing press. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [March 13, 2008, 12:28am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/133 "2008-03-13T00:28:19Z")
[QUOTE=Lumpy] Leaving aside the whole issue of whether gun possession is or is not a personal right, [/QUOTE] :rolleyes: In a 2nd Amendment thread? Boy, was I optimistic. ---
**Author:** ![spazattak](https://avatars.discourse-cdn.com/v4/letter/s/8e8cbc/32.png) [@spazattak](https://boards.straightdope.com/u/spazattak)\ **Post date:** [March 13, 2008, 3:33pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/134 "2008-03-13T15:33:53Z")
[QUOTE=Stealth Potato] The concepts of armed defense of self and defense of liberty are as separate and distinct from the technology of the rifle and the pistol as the concepts of freedom of religion and expression are from the typewriter and the printing press. [/QUOTE] so it should be worded in such a way as to highlight the right to self defense/protection from the state and not to protect the ownership of arms. and the last time I checked… the evolution of communication technology doesn’t result in more lethality. The evolution of weaponry does. ---
**Author:** ![BrainFireBob](https://avatars.discourse-cdn.com/v4/letter/b/e495f1/32.png) [@BrainFireBob](https://boards.straightdope.com/u/BrainFireBob)\ **Post date:** [March 13, 2008, 7:41pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/135 "2008-03-13T19:41:30Z")
If that was true, then old-style guns would be less lethal. That’s patently false. I don’t believe “lethality” was the term you were looking for. ---
**Author:** ![spazattak](https://avatars.discourse-cdn.com/v4/letter/s/8e8cbc/32.png) [@spazattak](https://boards.straightdope.com/u/spazattak)\ **Post date:** [March 13, 2008, 8:05pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/136 "2008-03-13T20:05:55Z")
[QUOTE=BrainFireBob] If that was true, then old-style guns would be less lethal. That’s patently false. I don’t believe “lethality” was the term you were looking for. [/QUOTE] Not really addressing the bulk of my argument, but is a weapon that kills more people in a shorter amount of time not “more lethal” than one that kills less in more time? For a singular individual it is the same sure, but for the group, clearly one is more lethal than the other. And it is a retarded to even have to make the distinction - the crux of the argument is clearly understandable. ---
**Author:** ![BrainFireBob](https://avatars.discourse-cdn.com/v4/letter/b/e495f1/32.png) [@BrainFireBob](https://boards.straightdope.com/u/BrainFireBob)\ **Post date:** [March 14, 2008, 5:27am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/137 "2008-03-14T05:27:01Z")
Which reduces the counter-argument to solely concern assault weapons. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 18, 2008, 12:01am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/138 "2008-03-18T00:01:14Z")
I hope I’m not revivifying a zombie here, since this thread was active as little as three days ago. **Hamlet** ’s (well-reasoned) arguments seem to demonstrate that the only right of an individual to keep and bear arms is in connection with his mebership in an organized militia (the National Guard, the Naval Militia, or a state militia not incorporated into the Guard), and the statutory definition of an “unorganized militia” is irrelevant as not being “a well-organized militia.” (I pass over **Elv1s** ’s arguments because it appears to me that he is setting forth the construction he gives the Second Amendment, and maintaining that his construction is the only valid way in which to interpret it. With no offense to **Elv1s** intended, I’ve seen the futility, from arguments with Biblical literalists, of attempting to debate against that mindset.) But I confess to being uncomfortable with that view. Much as I see valid reason for some sensible gun control, the Bill of Rights, as **Bricker** notes, otherwise guarantees **individual** rights, not corporate rights – the Tenth Amendment, at its end, to one side. It seems more than odd to me that in the middle of recitations of individual rights, the First Congress would guarantee a State or corporate right. My own construction of the absolute initial subordinate clause would be, “Since the states and country need a well-organized, well-trained militia composed of people who have learned to shoot and who can provide their own arms if needed…” I realize this is very much subject to debate. However, one of the great tests of a legal concept is to apply it to an extreme, ridiculous situation. “Bad cases make good law” is the maxim – “if the principle applies to everyone, then it applies even to that despicable clown in the dock. Does it, then, apply to everyone?” So let’s construct an absurd situation to test the principle of “corporate right.” Absent a state guarantee of the sort quoted by **E-sabbath** in post #112, it would seem to me that under **Hamlet** ’s construction, the following law would be constitutional – not necessarily a _good_ law, but one not violating a constitutional right. State of Uttar Confusion, General Statutes, Sec. 1984-A “No person on active duty in the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, the Federal Bureau of Investigation, the United States Secret Service, or the Central Intelligence Agency shall be permitted to own or carry a firearm except within or upon military reservations within this state. A violation of this section shall be a felony and on conviction subject to a prison term of no less than one and no more than five years, a fine of no more than $5,000, or both, plus removal of his franchise and of other civil rights as defined under ‘Deprivation of Rights As Agaunst Felons’ elsewhere herein.” Since they are active duty military, they are clearly not part of the militia. Therefore they have no right to own and bear firearms under the “corporate right” interpretation of the Second Amendment. Somehow I find the idea that such a law could be constitutional to be as absurd as the law itself. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [March 18, 2008, 12:22am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/139 "2008-03-18T00:22:10Z")
[QUOTE=Hamlet] The 5th Circuit opinion in Emerson simply focused more on the second part of the second Amendment, “the right of the people to keep and bear arms, shall not be infringed.” To them, the preamble was merely prefatory, and in no way limits the second phrase. [/QUOTE] In other words, they are capable of correctly parsing a statement according to the rules of the English language. One hopes that this is a skill also found among the justices of the Supreme Court. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [March 18, 2008, 12:32am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/140 "2008-03-18T00:32:16Z")
[QUOTE=spazattak] The second amendment is the lone section of the constitution that deals with a piece of technology. [/QUOTE] Nonsense. The “press” (First Amendment) is a technology. A “house” (Third Amendment) is a technology. “Paper” (Fourth Amendment) is a technology. More generally, the Patents half of the Patent and Copyrights Clause is directed toward technology generally. [Previous page](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402.md?page=6) [Next page](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402.md?page=8)