The Second Amendment, read in its entirety, including the reason that’s right there in that same sentence, says it is. It doesn’t say you can’t have a firearm if you’re not in the militia, only that you can if you are.
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You’re the one defining what the militia should do. That’s silly. You’re creating an arbitrary duty for the militia: To protect what is Right and Good. That is not it’s purpose. The purpose of the militia is primarily to keep the government from having a monopoly on force. Secondly, it serves to provide armed troops in the case of foreign invasion.
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Like “eww, guns are icky, the constitution is stupid and really old white guys wrote it.”?
We haven’t had a wide scale oppressive movement by the government to oppress the populace at large. The militia has never been needed.
:rolleyes:
And I should believe that it will ever be needed because . . . ?
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Driving (at least, on public roads) is a privilege, not a right. And if, hypothetically, there was some mass government car confiscation that everyone was opposed to, we would shoot them when they came for our cars. If we give up our guns, we no longer have this option.
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And you completely ignore the point that well-regulated in 1700s speak has nothing to do with regulations.
Historically speaking, most cases of registration have lead to confiscation.
In any case, we are not ignoring the first part of the sentence. You’re glorifying it. It is explanatory. I’ve stated previously, many state constitutions have the same [explanatory clause, restrictive clause] setup. For some reason, you people keep ignoring me and then insisting that I’m the one ignoring the first part of the amendment.
I was going to write a big explanatory section, but I found something that explains it well enough:
When the “restrictive clause” (in this case it’s actually a permissive clause) ceases to live up to the explanatory clause, its time for that rule to go. The “militia” has never materialized. So in my opinion, a change is in order.
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Not at all. You’re the one who is ignoring the fact that I’ve explained several times why the first clause of the second amendment is superfluous. It is explanatory. The format is quite common, but it seems odd to us because A) It’s the only use of it in the federal Constitution, and B) it’s gramatically odd relative to modern speech.
I have not simply ignored the first clause, but recognized it as explanatory and supportive of the main clause, the right of the people to bear arms shall not be infringed.
Read:
http://www.law.ucla.edu/faculty/volokh/common.htm
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It is superfluous. The right is granted regardless of the explanatory clause.
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Let me ask you this:
From the Rhode Island Constitution:
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty
Does this mean that only sentiments that are essential to the security of freedom in a state are protected under this clause? This is analagous to the second amendment, and according to your analysis, only sentiments that are essential to the freedom of the state are protected.
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Perhaps you could stop ignoring when I address your points, and then accusing me of not responding to them.
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Based on what you’ve said earlier in the thread, you most certainly give more weight to your “mainstream democratic values” than “what some guys in the 1800s had to say”, and hence, you don’t appear very objective in your analysis.
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So be it. You’ve shown blatant bias in the past, you can’t except me to accept your analysis as objective.
This seems very convoluted to me. Perhaps you’ll change your mind when you read the web page I posted above. Probably not. But it’s worth a shot.
Historical precedent.
Oddly enough, this has turned into a second amendment meaning/militia debate, which I was trying to steer clear of. I was trying to discuss the ninth amendment aspects. Oh well.
Love the cite. But the reading of “well-regualted militia” as a limiting phrase, rather than excess baggage, is perfectly consistent with reading the introductory phrases Volokh cites as limiting phrases. Examples:
Meaning: You can’t prohibit publication of sentiments on any subject if it restricts the liberty of the press.
Meaning: No crime or offence ought to be tried in any county other than where it occurred if trial elsewhere would endanger the security of the life, liberty, and estate of the citizen.
Meaning: You can’t prosecute or sue a representative for speech in the legislature if doing so would infringe on the freedom of deliberation, speech, and debate.
Meaning: No infringements on the right to bear arms if it interferes with a well-regulated militia.
Historical precedent that says that the militia has never
a) existed except maybe on paper
b) has never been well-regulated in any sense of the word
c) has never fought any government oppression
d) has not been able, no matter how many arms they bear, to match the force of the government controlled army since probably the adoption of the constitution. Unless you want your neighbor to have the latest stealth fighting technology, the concept of a “militia” is ridiculous today, and has been for a long time.
Well, at least you admit it’s a simple opinion.
I’m not trying to submit this as argument, just state my opinion in return:
The idea that the populace should be better armed than the government is not archaic - it is still quite useful.
The net effect of the right to bear arms is positive, in a practical sense. Recreation and all aside, many people protect themselves and their families with firearms.
People are not as aware of their duty in the militia as they used to be. This is not the fault of the law. This doesn’t mean it’s irrelevant.
Given the massive spike in federal power over the last 40 years, the likliness of the need of the militia seems more apparent now than at any other point in our history - unfortunately, ignorance about the subject is higher than at any other point in our history.
The second amendment and militia codes are still the law of the land. People should not try to change them by simply ignoring them. If they want to do it honestly, call a constitutional convention and change the damn thing.
The reasons that people hate guns are primarily emotional. Cute little kids die sometimes. They find it irrelevant that probably more often, cute little kids are defended. It’s like plane crashes - it happens infrequently, but everyone knows when it does, and it gives an impression that it happens in a higher proportion to more mundane things.
Gun control shows no benefit in reducing crime. The criminals just have an easier time.
So, all in all, the right to bear arms does more good than harm. It keeps politicians in check from doing outrageous things, it allows people to protect themselves, they provide recreation/food/all that other stuff, at the cost of perhaps some criminals being armed. However, I don’t think for a second that an outright ban on any sort of weapon would stop criminals from getting them.
And so, without the irrational fear of weapons, or emotional attachments of cute little kids that sometimes shoot themselves, it seems clear to me that the benefits associated with guns outweigh the consequences.
Whether or not we need a militia anymore is debatable - but having the guns around anyway seems to have a positive net effect, and so the point is almost moot.
Not to be trite, but: Cite?
Apparently, the American Revolution doesn’t count.
Nope, the Second Amendment wasn’t around until after both the Treaty of Paris, and 9 years or so of decentralized government.
I certainly do not give more weight to mainstream democratic values than what the drafters had to say in the Constitution. That’s the law. The thing is, though, that they didn’t bother to include all this stuff that you’re trying to import into the Constitution via the 9th Amendment. So I darned well give more weight to contemporary thought than a bunch of unexpressed, maybe-they-thought-it-and-maybe-not sentiments that the drafters didn’t include in the Constitution. Fortunately, the law of the land is what they wrote and ratified, not whatever they happened to be thinking about whill squatting over the chamber pot.
As opposed to your 100% objective, clear-headed, and perfectly consistent analysis? Whatever.
Minty, feel free to “except” him all you like. Accepting him is another matter, of course.
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How could you censor publication without restricting the liberty of the press? If the first clause is supposed to be restrictive in some way… it’s meaningless.
Can also be shortened to the operative clause (I think that’s the word for it, I’m not a grammar person): “Any person may publish his sentiments on any subject, being responsible for the abuse of that liberty.”, without losing any meaning.
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"In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . "
It strikes me, in that format, as explanatory. It’s saying “this and that is so important that this will happen this way”
And it could be shortened to the second clause: “No crime or offense ought to be tried in any other county than that in which it was committed” with no change in meaning.
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Also superfluous and explanatory. It could have the exact same meaning if you said “Deliberation in the legislature cannot be the foundation of any accusations of prosecution, action or complaint, in any other court or place whatsoever.”
Meaning: No infringements on the right to bear arms if it interferes with a well-regulated militia. **
[/QUOTE]
And, in this case, it could be shortened to “The right of the people to keep and bear arms shall not be infringed” without changing meaning.
In each of these cases, the explanatory first clause can be removed completely, and the meaning does not change. The second clause is the operative clause. The first is merely descriptive, it does not restrict the second clause.
Normally, as you are a lawyer, I would bow to your experience in this field, but there are quite a few lawyers who would agree with my assessment - including the one on that web page.
Has there ever been a government in history which did not progressively get larger and more invasive of it’s people’s rights? And hence, more oppressive?
You’re saying the militia of the citizenry of this country has never existed or been used to fight an oppressive government. Technically, it wasn’t the militia of the United States that fought off the British, but the point was the same. The founding fathers raised militias for the purpose of throwing off oppressive government, and they created laws based on a future need to do the same.
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Sorry, I have no idea what you mean by this. Perhaps you could clarify?
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They knew the Bill of Rights did not cover all of the natural rights a person has. They included the ninth amendment to state that, and to protect the unenumerated rights.
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The Constitution isn’t a political manifesto. It’s a set of laws. They expressed the thoughts behind the Constitution in various debates, letters, and of course, the Federalist papers.
If you bother to read any of these, you will see the fact that they did not think natural rights were limited to those enumerated specifically in the Bill of Rights.
I don’t understand your view of the ninth amendment. It’s essentially meaningless in your view.
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How do you determine unenumerated natural rights, if not from the thoughts and desires for those who set up the legal basis for this country?
I never said I was objective, but you pretty much stated flat out in the beginning that you didn’t care what a bunch of guys from the 1800s thought. That you were clearly more enlightened than they, and what you thought people’s rights should be was far more important than what they did.
Actually, I meant to say “expect”, reversal of letters. My bad.