Actually, it does not. The words in the amendment are “well-regulated.”
Now, you may argue that these mean the same thing. But the problem with that argument is that even according to Miller, the militia included “…all males physically capable of acting in concert for the common defence…” That’s a bit more expansive than your take, is it not?
You quote the US Code to define this term – does that mean that Congress may, by passing a law, effectively amend the Constitution? If all Congress has to do to delete the Second Amendment is pass a law concerning the definition of “militia,” then we seem to have found an excellent way to short-circuit the courts and the amendment process.
And I know you’ll be on board with this plan when Congress passes a law that defines flag-burning as “not speech” to ensure that the First Amendment isn’t implicated – right?
Note the underlined term. If you aren’t enrolled for military discipline, then you aren’t in the militia and the second amendment offers no right to bear arms.
It’s going to be interesting to see what this does to professional people who work in DC and live in NoVa. It’s certainly one less reason I have for not living in the city. The ban in DC has hardly been a success. It has pretty clearly failed to keep guns out of the hands of the crooks - I don’t think it is plausible to argue that things would have been even worse had law abiding citizens been allowed to defend themselves by owning firearms.
I need to fully read the decision. I think it will be interesting to see if SCOTUS holds that the Second Amendment is now fully incorporated…
It doesn’t. The National Guard is under state jurisdiction. So the amendment was created to quell fears that the federal government would disband state militias.
I think that it won’t make much of a difference. Of all the reasons that most people have for living in the suburbs as opposed to DC, I don’t think that ability to own a handgun legally is the one that keeps people out.
I shudder to think of the amount of litigation that a Supreme Court decision will set off. This will put every gun control ordinance under a microscope and the fall out will be interesting to see.
From what I recall there hasn’t been a push to legalize hand guns in the District. If this was something that the electorate wanted, they could petition the City Council.
I don’t think of itself it is enough to push people back, though I do know some who mention it in discussions, myself included. I think it could be part of an overall strategy to increase the city’s tax base.
The problem with this view, BobLibDem, is twofold: first, who take “enrolled for military discipline,” as meaning a member of the National Guard. But that’s not what the phrase meant to those that used it in the amendment. They were members of the First and Second Congresses, drafted and approved the Bill of Right, and also drafted and passed the Militia Act of 1792. Rather than quoting current US Code, why don’t you look to that Act to see what’s meant by “militia”?
The militia was essentially every white male over 18. That was the scope of the audience they were referring to.
Moreover, your view totally ignores the use of the phrase “the people.” The phrase is used in other amendments, and everyone seems to agree it refers to… well… the people. But in the Second Amendment, it only refers to the National Guard, eh? No – it’s very hard to imagine that if the drafters meant to limit the reach of the Amendment only to a National Guard, they would have chosen the language that they did.
And look at how Miller was decided: not by an individual or collective rights argument (although that was argued), but by the finding that a shortbarreled
shotgun was not within the meaning of the word “Arms” in the Second Amendment. The Miller court did not reach any individual or collective decision at all; they merely said that regardless of WHO has the right to keep and bear “arms,” that right doesn’t apply to a short-barrelled shotgun, since short-barrelled shotguns are not ‘arms’.
What history are you relying upon to reach that conclusion?
In David Young’s 800+ page “The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace 1787-1792,” he reprints about 500 pages of original material, debates from the federal Constitutional convention, debates from the state ratifying conventions, and contemporary commentaries. I have been through this book several times over the years and I cannot recall any serious sway towards the interpretation you mention.
Bricker, kind sir, I have cites up the wazoo. Unfortunately, my schedule doesn’t permit me to make a fully cited response today. Perhaps tomorrow I shall make such a response. Please don’t confuse a lack of response with agreement with your position.
No, no, the rule is that if you don’t instantly respond with detailed cites, not only do I win the argument, but you have to come over and wash my car.
Sure, take your time. The issue isn’t going to be solved by tomorrow anyway.
I do not believe that the National Guard is under State jurisdiction, and it didn’t exist at the time of the writing of the 2nd Amendment (although certainly other forces did). Further, the National Guard Mobilization Act of 1933 clarified that the National Guard as we know it is part of the Federal forces, and it appears to have been written with the consideration that the State National guards, in whatever form they existed prior, were Federal forces all along. But you may have a different take on that.
And since there wasn’t really a standing Federal Army that was separate from the State forces at the time of the writing of the Amendment (was there? My cites say there was not a decent-sized regular army until the war of 1812.) then saying that the Amendment was made to quell fears that the Federal government, which had no real forces at the time (I mean, yes, there was that whole “Legion of the United States”, but again, was that really a significant force that the States took seriously?), was trying to quell State fears seems not in keeping with history. Of course, I’m no historian or lawyer, but it looks that way to me.
Interesting sidebar on this case is that the supposedly pro-gun rights NRA seems to have done everything it could to stall and derail it, for what motive is hard to figure out:
Otherwise, this case appears to be a pretty soundly argued and decided one. Full out gun bans are unconstitutional, even if you think it might be a good idea. I think people are just going to have to get used to that.
The answer is obvious, yet counterintuitive: they have no idea what the Supreme Court will rule on the topic, and remarkably enough the ruling doesn’t matter.
It’s just like anything else: an interest group survives only as long as they have something to agitate against. If the Supremes rule for the individual rights argument, the NRA dies victorious. If they rule against the individual rights argument the NRA dies because they will be perceived as inept and they will die an ignominious death. Either way, taking it to the Supreme Court destroys the ambiguity that the NRA has made a living on.
That’s certainly what I speculate the motive to be, but there’s no real way to make that accusation solid. It’s just an odd quirk at the moment that they would put time and effort into trying to mess up what seemed to be, and proved to be, an ostensible victory for their cause, if not necessarily their bottom line (though I have a feeling this will show up in their fund raising plenty, and quite successfully, so I still don’t see what the financial motive is).
