Seriously? You don’t think the Court left huge realms of argument open on what permissible regulation is? They got it essentially right in both cases, but they are far from being precise - otherwise I wouldn’t have had to remember to unload my gun from my car before driving into DC this morning.
Incidentally, Steven’s analysis reminds me why I would never want to be a lawyer. Having read every word, I kept getting the urge to slap him silly every time he went on what was, to my way of thinking, a pointless digression over minutae and historical lunacy–who the hell cares what people wrote as proposals that WEREN’T passed, we’re talking about what was!
I get the exact same feeling when reading the majority decision from Scalia, too. =P
–Zeriel, who increasingly feels like he’s the only gun-toting law and order Democrat that he knows.
You are ascribing to me a position I did not express. So the strawman is indeed one of your own making.
It’s called the English language. Words mean something. Words in a certain order mean something. The sentence needs to be taken as a whole and the parts garner meaning in the context of the sentence. The preamble informs of what the FFs are on about in the rest of the sentence. You choose to take the sentence in pieces and ignore the sentence as whole.
You can use arms in the context of a militia.
Well, if you are a gun rights advocate who argues for meaningful restrictions in training and registration then you are a rare breed. I have never seen the NRA advocate for it but have seen them fight tooth and nail against such things.
As things currently stand this is how easy it is to get a CCW permit today:
This sort of civility should be de rigeur for GD threads. 
Stevens, like every other Justice (Bricker’s Scalia-worship notwithstanding), is not above picking and choosing when to apply legislators’ original intent (the correct time to do so, of course, is never).
Yes, the preamble informs. It informs ME that it’s a dependent clause describing the rationale (which is absolutely viable both in grammar and in projected intent) to the second (main) clause.
Arguably this should make you happy–it’s tough to get statistics, but a cursory reading of available stats indicates that CCW holders are somewhere between “no more likely than any general public member” and “significantly less likely than the average” to commit violent/gun crimes.
A lot of states, especially “red states” but some surprising exceptions, are offering essentially shall-issue CCW licenses–my own state is one. At least some of this is backlash against total gun regulation of the type that tends to only find a home in many larger cities.
Look, there’s no dearth of people on both sides of the debate arguing equally untenable positions (namely, “no regulation whatsoever” and “no guns in civilian hands whatsoever”) and neither side has given the other much reason to trust their legislative intent. The pro-regulation side argues that gun violence is a problem (which it is). The pro-gun-ownership side points to the vanishingly small percentage of gun owners who commit gun crimes (especially the pro-some-regulations folks like me, who point out that CCW holders regardless of degree of testing/rigor of permit acquisition seem to be less prone to gun crime.)
The problem is that there’s a history in the legislation of this country for some gun ownership rules to be turned into onerous or difficult rules, so the pro-gun community is (understandably and frustratingly) suspicious of the motives of people who advocate for some sensible rules. The biggest argument I hear against my proposal is twofold–“testing implies it can be refused, and we’ve had testing requirements (such as literacy tests for voting) be used in nefarious ways before” and “what’s to stop a new, less-gun-friendly and oppressive leadership from using the well-founded sane registration lists as a handy ‘here’s the people who I need to suppress and disarm’ list”?
Both are valid caveats in a world where one can’t trust the good natures and decency of their political opponents, unfortunately.
I have a question I’ve raised before but which I’ve never heard a straightforward answer to. First, two quotes from the Constitution:[ul][li]Article 1, Section 10, Clause 3 (Compact Clause): No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.Second Amendment to the Constitution: 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.[/ul][/li]
Ok. If your posistion is that by “militia”, the Second Amendment means a regimented body of armed persons organized and controlled by the state, then just what exactly is the difference between a “Militia” and “Troops”?
Troops aren’t organized and controlled by the state(s), but by the federal government.
If a state can have a state army, and by your definition they’re just not called troops, then what’s the point of A1S10C3? If states can’t have troops then what is the Second Amendment promising they CAN have?
Aren’t “troops” members of regular, professional armed forces and the “militia” is instead made up of the citizenry, to be called out when needed?
So A1S10C3 is stating that a state may not have a standing army, but, under the Second, individuals cannot be prevented from owning weapons because they might be needed to be called up to serve in the militia.
A Militia is organized but not standing and not professional (in the sense of it’s not their full-time job).
“Troops” are a standing, ready army.
The biggest difference is that one has to call up a Militia, but Troops are ready now.
You’ll note the end of Article 1, Section 10, Clause 3 says “unless actually invaded, or in such imminent Danger as will not admit of delay”, which implies that a State may have forces ready for activation under those circumstances, even if they may not have “Troops” ready at all times.
This dovetails with the “security of a Free State” part of the 2nd Amendment.
One could argue, given this context, that the 2nd Amendment only prohibits the Federal Government from infringing on the right of the people to bear arms. It would come down, essentially, to whether the “state” in the 2nd amendment is the “sub-unit of the Federal Government” or “sovereign state”, combined with what one thought of the relevance of the first clause’s power (whether it is a modifier/descriptor or an active clause in its own right), combined with (in some cases) what one thought about whether firearms ownership is a right reserved to the people as opposed to the states.
Whatever the case, the Supreme Court appears to believe that the rights to firearms ownership is reserved to the people, as they appear to have incorporated it as of McDonald vs. Chicago.
It is only if you disagree with this:
“it cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).
If you think it is ok to just declare some part of the constitution rhetorical fluffery with no effect then that is worrisome.
So in other words, because I’ve said that that clause absolutely guarantees the government can regulate firearms ownership provided that it doesn’t break the stated plain meaning of the second clause (shall not be infringed), including requirements of training and licensing (which fulfill the military meaning of “regulated”, especially if there is a mandatory selection of calibers/platforms for at least ones first rifle and pistol), I am dismissing it as fluffery? Especially as I’ve also pointed out that the statutory definition of “militia” is far more people than merely those under uniform in the national and state guards, so as not to ignore that clause either? Right, then.
I’ll agree that I think “A well regulated Militia, being necessary to the security of a free State,” is rhetorical frippery if you agree that you and Mr. Stevens apparently think that “the right of the people to keep and bear Arms, shall not be infringed.” is rhetorical frippery.
Clearly neither of htose are the case, and you’re arguing in bad faith.
As to what the Second Amendment is talking about when it mentions a “well regulated” Militia, I suggest everyone who hasn’t already done so read The Federalist #29, where Alexander Hamilton answers various objections that were raised to the proposed Constitution giving the federal government authority over the Militia. The Federalist #29 answers in part this published article, which argued that if the Federal government was given authority over the militia, that it could use that power to regiment the populace under permanent military discipline. Hamilton’s rebuttal states (bolding mine):
In other words, Hamilton uses the phrase to mean practiced, functional, competent. The sense that many people today take the phrase to mean- only that part of the population that regularly drills with arms under state supervision, and are the first ones called when needed- is referred to by Hamilton elsewhere in #29 as the “select corp” of the Militia (The Militia Act of 1903 a.k.a The Dick Act, uses the phrase “organized militia” to mean virtually the same thing.) He also explicity uses the word militia as synonymous with the mass of the populace, and denies that it is either necessary or desirable for the entire militia to be “well regulated”.
I would hold the first clause of the Second Amendment to mean that in order to have a populace actually familar with arms and ready to serve if needed, the Federal government was not to order that guns be kept locked away in state armories and only allowed in peoples’ hands during an emergency. In order to BE “well regulated”, it was held necessary that the people should “keep and bear arms”.
Thank you, Lumpy. That’s really the crux of the original intent.
Well that’s interesting. “Original intent” seems to have been a compromise between two opposing viewpoints on a right to bear arms. Perhaps it is no wonder we are left in this quandary today.
Make no mistake I am a big fan of the Federalist Papers and think Hamilton and Madison (and John Jay for a few) did a fantastic job and I hold them in high regard. I have referenced them frequently myself in the past. That said while they are an excellent guide to original intent they are not the definitive work of it. If we were to pen a new constitution today it would be a practice in compromise…things were no different back then.
It seems there was a distinct two-sided difference in what the right to bear arms meant so Madison punted to appease both sides.
The above source material is long but an interesting read. I encourage people here to read it. In short it shows that this topic is far from a clear one.
Here is another example in how differing states saw the right to bear arms differently prior to the constitution being written:
So, Lumpy’s and Zeriel’s assurances that original intent is obvious I think we can say it decidedly wasn’t (unless we want to say original intent was to appease two sides and walk down the middle).
As I result I guess we could say today that either view is “correct” (or at least not wrong).
Finally, I am curious about this quote I came across from Scalia…seems at odds with rulings he made subsequent to this (in particular McDonald v. Chicago):
*“[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.”
—Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)
*
As an aside I find it interesting that when the Constitution was written it seems it was the conservatives trying to keep guns out of the hands of the people and the liberals trying to give them guns.
Quite a difference from today.
An honest and enlightening response Whack-a-Mole, thank you. Apparently from the beginning there was a conflict between two viewpoints that are still with us today: “you don’t seriously propose to let any yahoo who wants a gun to have one?!” versus “you don’t seriously think the government can be entrusted with a monopoly on arms do you??” Real doubt about an issue where either extreme seems unreasonable is a valid position.
I should just bow out of this thread if Lumpy is going to post basically what I wanted to say every time.
As I have many times before, I will point out that the intent of a law, even one written by the (or some, or a) founding fathers, is immaterial.
If they couldn’t say in the text of the law what they meant to, shame on them. In the absence of evidence to the contrary, it must be assumed that a more (or less) expansive version which does say what they wanted it to would not have received enough votes for passage.
Well…where does that leave us?
They were beholden to the political process…a democratic one at that so they had to reach compromises.
Granted it seems they left us with a mess by intentionally appeasing both sides thus leaving the result vague on the 2nd Amendment. The alternative would be for them to fight it out and land on one side or the other or toss the whole thing. Could be an interesting discussion on which way you think that might go but dangerous dice to roll. You might get sevens, you might get snake eyes. I do not think it is at all clear which way it might have gone had they pushed for a firm stance one way or the other.
Keep in mind the whole Bill of Rights was in the balance. If they decided to fight tooth-and-nail over the 2nd Amendment the whole thing might have been brought into jeopardy.
Considering I really like the rest of the Bill of Rights (admittedly not fussed about the 3rd Amendment) I think they did a good job. Amazed such a document came out as well as it did all things considered and perhaps still the best example of its kind in the world today…despite being the oldest.