High Court to rule on gun bans

[Blake]

[QUOTE=lowbrass]
Seriously, Blake - we are in agreement. I absolutely agree that the 2nd Amendment enumerates a right for you to keep and bear arms, to the extent that you are participating in a state militia.
[/quote]

And that is where you part company with both myself and the constitution. I nevermentioned a state militia, and neither does the amendment. All that is mentioned is a well regulated militia. The idea that the framers meant a state militia is absurd. It means that they thought that a well regulated state militia, ie an army, was able to prevent the rise of a tyrannical state. Why would they have thought such a thing? It makes no sense in light of what they knew of history. Armies aid tyrannical states, they don’t protect againt them.

And that makes it a collective right.

Well no, it doesn’t.

Even if we accept what you say the individual has the right to keep firearms at home, that much is clear from the wording. The weapons aren’t to be stored in a militia armoury, the individual has the right to keep those arms. He may not be able to use them to go hunting on the weekends, but he has the right to keep them in his house incase he wanst to go along and jopin the militia.

This is in stark contrast to the gun control POV, which is that individuals shouldn’t be able to keep the firearms in their houses at all, even if they are part of a militia.

Would you personnally agree that the constitution allows US citizen could keep an M-60 and 3000 rounds in their home if they so wish provided they pratcice at least 1 weekend each year with a state militia?

If this were a case of a state militia that required people to bring their own guns, then I think you would have a valid point. But it’s not.

And I think the idea that it refers to a state militia is absurd. The idea that the framers though that a state controlled, trained and armed militia would prevent the state from becoming tyrannical is absurd. Surely you agree that it refers to a militia that is capable of opposing the state army in the event that the state becomes tyrannical? And surely you agree that a state militia like the National Guard of the Hitler Youth couldn’t do that?

There are a number of published legal opinions that make convincing arguments for the collective-rights interpretation.

They don’t convince me. Woudl you care to try?

[John_Mace]

The wikipedia article on this is pretty informative. I suggest everyone read it. Link.

Executive summary: The original purpose of the 2nd amendment was to make sure Congress didn’t prevent a State from raising and maintaining a militia. The feds can’t make laws prohibiting the people from owning “arms”. That is a matter left to the states.The purpose was to guard against a tyranical federal government’s standing army. The fact that the States now have National Guard units, though, cannot be the basis for saying the 2nd amendment is null. You can’t overturn an amendment with a statute.

This is a peculiar case with DC law in that it doesn’t involve a state. I suspect the ruling will be narrow in scope, and won’t shed much light on what the states can or cannot do themselves. However, it seems to me that the amendment should be read such that Congress can’t prevent citizens from owning guns, but the states can regulate them as they see fit.

[Kimstu]

@Stealth Potato

Airman Doors already quoted 10 USC 311, which includes every able-bodied male citizen between the ages of 17 and 45 in the militia of the United States.

So it would not be unconstitutional for a state or district to ban ownership of firearms by women (except those in the National Guard)?

[Kimstu]

P.S. This whole kerfuffle is why, although I’m not opposed to gun ownership in general and probably would not support a total handgun ban even if I lived in Washington D.C., I’m in favor of repealing the Second Amendment. It’s just a controversial mess, for which nobody’s been able to come up with a satisfactory modern interpretation that doesn’t ignore either some clearly-stated part of the text of the Amendment, or some obvious reality of modern life, or both.

The situation it was designed to deal with (informally constituted but official state militias of private individuals) simply no longer exists to any significant extent. Nowadays, we should let gun ownership, like ownership of lots of other objects, be a legislative issue, and cease this futile discussion of what the “right” to gun ownership really means.

[Airman_Doors_USAF]

[QUOTE=Kimstu]
So it would not be unconstitutional for a state or district to ban ownership of firearms by women (except those in the National Guard)?
[/QUOTE]

Of course it would, because you would be attempting to disenfranchise an entire class of people, by some estimates comprising more than half of the population, on the basis of an unworkable, tortured interpretation of an amendment. I simply pointed out that the whole “militia” argument is silly because it’s not nearly as circumscribed as some of the proponents wish it was, even if it were workable, which it’s not.

[Kimstu]

@Airman Doors

Of course it would, because you would be attempting to disenfranchise an entire class of people, by some estimates comprising more than half of the population, on the basis of an unworkable, tortured interpretation of an amendment. I simply pointed out that the whole “militia” argument is silly because it’s not nearly as circumscribed as some of the proponents wish it was, even if it were workable, which it’s not.

Well, you can’t have it both ways. If it’s not constitutional to use a gender-skewed definition of “militia” to restrict gun ownership, then it’s not constitutional to use a gender-skewed definition of “militia” to oppose the restriction of gun ownership, either.

[Airman_Doors_USAF]

I don’t rely on the definition of “militia” to justify a right reserved, explicitly I might add with the word “People” in the independent clause, to everybody. To repeat: if people want to try to paint people into a corner with the “militia” clause, I’ll show them exactly how big that corner really is and why it’s ridiculous on its face.

[Czarcasm]

[QUOTE=Airman Doors, USAF]
I don’t rely on the definition of “militia” to justify a right reserved, explicitly I might add with the word “People” in the independent clause, to everybody. To repeat: if people want to try to paint people into a corner with the “militia” clause, I’ll show them exactly how big that corner really is and why it’s ridiculous on its face.
[/QUOTE]
It’s not just the word “militia” though-it’s the phrase “well regulated militia”. How do you redefine that to mean the common populace?

[Airman_Doors_USAF]

I don’t redefine it. I don’t have to. My reading of the amendment goes like this: because a militia may (or will) one day be necessary, the people are free to keep and bear arms.

Incidentally, what would you call a “well regulated” militia? If a group of people get together to practice shooting and they are members of the militia, is that not “well regulated”?

Again, the militia argument has nothing behind it. Even the most cursory read of the literature leading up to the ratification indicates that the intent was not collective, and for want of a good proofreader (the first comma was not in the amendment submitted for ratification) we wouldn’t have this mess.

Read the Wikipedia article. It’s well cited, even if it is a Wiki article.

It’s also worth noting that most states modeled their constitutions initially on the US Constitution, and virtually all of them have a 2nd Amendment equivalent. Section 21 of the Pennsylvania Constitution (my state) says “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned”. (Cite) For a complete list and evolution of state-by-state Constitutional rights with regard to guns, see here. As you might note, the states thought it was important enough to address themselves in a fairly consistent manner, differing essentially in verbiage, and all of them assuring an individual right, which is remarkably in tune with the original intent of the Second Amendment, which also was intended to confer an individual right.

The evidence is overwhelming. How it can be so blithely handwaved away boggles my mind.

[lowbrass]

[QUOTE=Blake]
And that is where you part company with both myself and the constitution. I nevermentioned a state militia, and neither does the amendment. All that is mentioned is a well regulated militia. The idea that the framers meant a state militia is absurd. It means that they thought that a well regulated state militia, ie an army, was able to prevent the rise of a tyrannical state. Why would they have thought such a thing? It makes no sense in light of what they knew of history. Armies aid tyrannical states, they don’t protect againt them.

[/quote]

Not sure what you’re driving at. It sounds like you are perhaps mistaking my use of the term “state militia” with “federal militia”. But I was of course referring to militias of the individual states, which it seems clear that the framers believed were essential to defend against the FEDERAL government, should it become too powerful. The framers most certainly believed that these militias could defend the individual states against encroachment by the federal government. That was the tyranny they feared. They most certainly didn’t believe that militias would aid it. I don’t know why you would say that.

Well no, it doesn’t.

Yes, it does.

Even if we accept what you say the individual has the right to keep firearms at home, that much is clear from the wording. The weapons aren’t to be stored in a militia armoury, the individual has the right to keep those arms. He may not be able to use them to go hunting on the weekends, but he has the right to keep them in his house incase he wanst to go along and jopin the militia.

Again, were this a case involving the D.C. state militia (which doesn’t exist, at least not in the meaning of the 2nd amendment, and it’s not a state anyway) needing to have its members store their guns for use in that militia, you might have a point. But this case has nothing to do with that, so it isn’t relevant. Again, the courts have repeatedly held that the 2nd Amendment refers to a specific right that exists under a specific circumstance, and it is not a broad right that covers any possible reason you might want to have a gun. I have never heard anyone argue that the 2nd Amendment means nothing; people either argue that it applies to militias only, or that it applies broadly to every individual. That is the point of disagreement, and if you acknowledge that the 2nd Amendment only applies in the case of a person’s participation in a militia, then you must acknowledge that it doesn’t protect an individual right to own a gun for individual self-defense, hunting, or what-not.

This is in stark contrast to the gun control POV, which is that individuals shouldn’t be able to keep the firearms in their houses at all, even if they are part of a militia.

No, I don’t think that’s a mainstream argument at all. The argument I’ve mainly heard is more along the lines that those kind of militias don’t exist anymore, rendering the point moot. That’s an entirely different argument.

Would you personnally agree that the constitution allows US citizen could keep an M-60 and 3000 rounds in their home if they so wish provided they pratcice at least 1 weekend each year with a state militia?

That’s too hypothetical. You’d have to give me a real-life example. What kind of militia? What state? What people?

And I think the idea that it refers to a state militia is absurd. The idea that the framers though that a state controlled, trained and armed militia would prevent the state from becoming tyrannical is absurd. Surely you agree that it refers to a militia that is capable of opposing the state army in the event that the state becomes tyrannical? And surely you agree that a state militia like the National Guard of the Hitler Youth couldn’t do that?

Yeah, I’m pretty sure you’re confusing “state” with “The State”.

They don’t convince me. Woudl you care to try?

I thought that was what we were doing. I don’t expect to convince you of anything; people tend to be pretty polarized on this issue. We’re just here to have a friendly discussion, right?

[lowbrass]

[QUOTE=Airman Doors, USAF]

It’s also worth noting that most states modeled their constitutions initially on the US Constitution, and virtually all of them have a 2nd Amendment equivalent. Section 21 of the Pennsylvania Constitution (my state) says “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned”. (Cite) For a complete list and evolution of state-by-state Constitutional rights with regard to guns, see here. As you might note, the states thought it was important enough to address themselves in a fairly consistent manner, differing essentially in verbiage, and all of them assuring an individual right, which is remarkably in tune with the original intent of the Second Amendment, which also was intended to confer an individual right.

[/QUOTE]

It’s interesting to note that many of the states in that list were very clear to enumerate the exact rights being conferred. North Carolina says "the people have a right to bear arms, for the defence of the State, yet Pennsylvania specifically ADDS wording to bestow a right to individual self-defense: “the people have a right to bear arms for the defence of themselves and the state.” And Massachusetts specifically mentions “common defense”, as opposed to individual defense: “The people have a right to keep and to bear arms for the common defence.”

You are quick to point out when an individual right is clearly bestowed, but seem to ignore when it is conspicuously absent, as it is in several state constitutions AND in the U.S. Constitution. Are we to believe that the writers of the U.S. Constitution were simply sloppier than the writers of the individual state constitutions? If they were allegedly copying the U.S. Constitution, and the U.S. Constitution is allegedly clear on the issue, why would they need to add additional language? That makes no sense.

[BobLibDem]

[QUOTE=Airman Doors, USAF]
OK, so who’s in the militia?

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the
Naval Militia.

[/QUOTE]

Since the 2nd Amendment refers to a “well-regulated” militia, it seems a stretch to think that “the unorganized” militia would be “well-regulated” and exempt from gun controls.

[UltraVires]

I’m trying to understand the collective rights concept but I can’t.

When I read the first part, as you all like to say: “A well regulated militia being necessary for the security of a free state, …” I see nothing restrictive there. Nothing says that the “right of the people to keep and bear arms shall not be infringed” is to be used ONLY for the militia purpose.

Many other items have secondary and tertiary benefits from them other than what was intended, but nobody serious claims that the use of an object can be ONLY used for it’s original stated purpose.

“The SDMB, being necessary to combat ignorance, the right of the people to read internet message boards shall not be infringed”

Would anyone read that statement and seriously argue that “people” only applies to SDMB readers and that people cannot read other boards at all, or maybe they can, but the purpose of the other board has to be to fight ignorance.

I see nothing restrictive in my statement or the preface to the 2nd amendment…

[Scumpup]

“Well-regulated” doesn’t mean supervised and controlled by the government. When referring to troops during the time period when the 2A was written, the term meant disciplined and practiced. Discipline, in this context, means military discipline i.e. quickly and accurately following the orders of their officers and non-coms. The framers clearly meant that the people were to have the freedom to keep and bear arms that they might participate in a well-regulated militia capable of effectively resisting a standing, professional army.
Cites on this and a whole bunch of other stuff discussed in this thread.

[Czarcasm]

[QUOTE=Scumpup]
“Well-regulated” doesn’t mean supervised and controlled by the government. When referring to troops during the time period when the 2A was written, the term meant disciplined and practiced. Discipline, in this context, means military discipline i.e. quickly and accurately following the orders of their officers and non-coms. The framers clearly meant that the people were to have the freedom to keep and bear arms that they might participate in a well-regulated militia capable of effectively resisting a standing, professional army.
Cites on this and a whole bunch of other stuff discussed in this thread.
[/QUOTE]
But that would mean that civilians would have to receive military training and sign a contract to become part of an inactive reserve, ready to be called up, before they could have their arms. The phrase isn’t “potentially well-regulated” or “well-regulated at a future date”.

[Scumpup]

[QUOTE=Czarcasm]
But that would mean that civilians would have to receive military training and sign a contract to become part of an inactive reserve, ready to be called up, before they could have their arms. The phrase isn’t “potentially well-regulated” or “well-regulated at a future date”.
[/QUOTE]

The militia, as it was known at the time, was locally organized and led by officers and non-coms chosen from within the unit by the members. Alternatively, militia units were also often led by the (wealthy) guys who mustered them and kicked in funding for stuff like cannons. By and large the enlisted members provided their own small arms. Sometimes individually, sometimes through a “group buy” type of arrangement. This model for the militia prevailed at least up through the Civil War. It persisted through the Spanish American War (you’ve heard of The Rough Riders?) and didn’t disappear completely until WWI. The drilling and practising were handled, much of the time, by having periodic practice in the critical close order drills in the town square itself. Watching the local militia drill was, back then, considered a pretty good entertainment on a Sunday afternoon.

These militia units could, and did, offer their services to the federal government in times of war. The guarantee of the right to keep and bear arms was so that such units could be formed when needed. You’re working backwards by saying membership in such a unit was a pre-requisite for ownership of arms.

[Bobotheoptimist]

[QUOTE=ElvisL1ves]
Who said anything about “total”? There is no argument bieng made that I’m aware of, certainly not by me, that the National Guard should be disarmed.
[/QUOTE]
“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.”

Sorry, I still don’t see the National Guard in there, not do I see any mention of the militia having a right to keep and bear arms. All I see is recognition that “the People” have a right.

Compare and contrast -

“A well regulated militia, being necessary to the security of a free State, the right of the State Militia to keep and bear arms, shall not be infringed.”
“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.”
Of course, one has to acknowledge that D.C. has long been the safest city in the country because of the handgun ban, correct? In 2003 it had the nations lowest murder rate … at least if compared only to New Orleans.

Has banning handguns made DC a safe place? Safer? Are criminals in DC unable to acquire weapons because of it? Who are most inconvenienced, law breakers or law abiding citizens? IMHO the very people who are supposed to be protected by the government are the ones who are being hurt by this ban.

[Stranger_On_A_Train]

Not being an expert in Constitutional law (though the actual verbage of the Constitution on the matter seems pretty clear to my undereducated mind) I’m not going to levy an opinion, but I’ll note that despite all of the technical arguments over gun laws and statistics that get bandied about in every debate regarding gun control, all arguments essentially boil down to one contingent with an emotional attachment to getting rid of guns (whether practical or not) versus a contingent with an emotional attachment to preserving ownership of firearms with minimal to no oversight. In fact, the raw truth is that the argument is rarely about gun control at all, but rather about crime control, and for the former group the best means to control crime is to control the tools of crime. I’ll note, however, that despite the severe or complete prohibition of legally owned weapons in many metropolitan areas with high violent crime rates, criminal activities with or without the application of firearms continue, suggesting that gun control is an ineffective means to achieve crime reduction.

Personally, I’ve handled all sorts of firearms nearly all my life, and have little emotion regarding them whatsoever. They’re a tool that can be put to use in situations I’d mostly rather avoid, and in recreation little different from other skillful arts like golf or pool, but handled improperly they can also do great harm, just like automobiles, pesticides, and alcohol. Philosophically, I’d lean toward the more libertarian mentality of less government regulation, but I also recognize that there are legimate reasons to restrict public access to certain classes of weapons or carry in certain places. I suspect those who are adamently against the ownership of firearms utterly fear them out of proportion with the likelyhood of their hazard in the hands of responsible, lawful owners and fail to recognize the ineffectualness of gun control laws against criminal elements.

Stranger

[ElvisL1ves]

[QUOTE=Bobotheoptimist]

Sorry, I still don’t see the National Guard in there
[/quote]
:dubious: Already pointed out. That’s what it’s called these days. Sheesh.

not do I see any mention of the militia having a right to keep and bear arms.

Inevitably follows from being “necessary”. Sheesh.

All I see is recognition that “the People” have a right.

When functioning as a militia. A well-regulated one, at that, not the “unorganized militia” thingie that somebody dreamed up once.

Of course, one has to acknowledge that D.C. has long been the safest city in the country because of the handgun ban, correct?

Irrelevant to the Constitutional question. But perhaps you can extrapolate how many more people would die from crimes of passion, suiides, and accidents if it weren’t in place, if you wish to discuss the matter honestly, that is.

[ElvisL1ves]

[QUOTE=Stealth Potato]
You’re wrong there. Airman Doors already quoted 10 USC 311, which includes every able-bodied male citizen between the ages of 17 and 45 in the militia of the United States.
[/QUOTE]

And subdivides it into (A) the National Guard (!), and (B), the “unorganized”, as in *not * “well-regulated” militia.