We don’t, except where the populace democratically decides to limit access to guns. It’s hard to argue against democracy.
But that doesn’t mean it should be expanded.
Gee, all this sounds reasonable. When do you plan on breaking it to Ogreand Sampiro and Swampbear and Vlad/Igor that they’ll have to become Southern Baptists?
And when do you expect the Chicago Reader to close down, because the State of Illinois doesn’t have to respect this so-called freedom of the press?
And could someone take a trip over to Montpelier (the plantation, not the Vermont city) and tell Mr. Madison’s grave that he could have left the Second Amendment out, because it’s covered by the Tenth. (Do it fast, before Virginia imposes travel permits and requires you to justify your trip.)
But at least we won’t have to deal with any “penumbras” any more. (Or much of anything else; Mr. Bush and SCOTUS will tell us what we need to know.)
It’s not just a simple state vs. federal issue.
Claiming that the states can make laws that go against the Constitution means that Alabama could place restrictions on what churches its citizens can attend or could allow Maryland to decide to what formats its people can express the written word.
This would be no different than saying what types of guns are allowed for people in one state but not another.
“Congress shall make no law…” disallows states from forcing one religion on the people, as per the 1st Amendment, but saying that states can sweep the 2nd Amendment under the rug would be conflicting attitudes.
Allowing states to decide how much restriction they want to place on the rights recognized in the 2nd Amendment, it would also allow the states to pick and choose what parts of the remaining amendments they want to have.
If the militia issue is only meant to mean the federal government’s army, the National Guard, who is to protect the people from the National Guard if the National Guard is used against the people or used to suppress the rights given by the remaining amendments? This is where the “people’s right to keep and bear arms” holds its greatest significance.
Until such time as the Supremes rule otherwise, or the Constitution is amended, it is the law nevertheless. Argue all you like that it’s wrong; it’s still the operative fact.
If you intend to live in the US, you’d better act as though it is, or accept the consequences, which can be unpleasant.
Uh-oh. Is this that Natural Law stuff popping up here?
Whatever the outcome, this is going to be fun.
Peace,
mangeorge
According to the Brady site over 20% of carry states don’t require training.
And that’s for carrying concealed. Of the states where Open Carry is legal only a handful require any kind of license or training to do so.
My question to ant-gunners is, given the choice, what feaks you out more: not knowing which person in public is [legally] carrying a concealed pistol, or knowing who is armed because they are [legally] carrying openly?
I also have a problem with the “except fors”, however reasonable. The 2nd does not allow for them.
Same for the 1st. You can’t do the famous “yell fire”, but the 1st doesn’t allow for that either. But we don’t allow that yell.
The constitution is old. I know how it feels, and I sympathize. 
I take aspirin.
I don’t think the Washington DC laws will (or should) withstand scrutiny and I’m glad this is coming before the court.
But in light of your premise, how about thermonuclear weapons? Is there any defensible reason, in light of the 2nd amendment, for the government to obstruct my access to a tactical nuke or two? Let’s say I have the resources to create a safe installation.
I think all states should be required to issue licenses to citizens desiring to carry firearms. It is reasonable that the state insist on a licensing test and/or require a safety course. (Auto licenses work similarly). But they should not be allowed to require that the citizen demonstrate why it is that they should be allowed to carry a firearm. “I wish to do so” should be sufficient.
For the record, I don’t think citizens should be able to stock their own personal silos with nuclear warheads. I don’t know where I draw the line, or on what philosophical, Constitutional, or arbitrary grounds I draw it wherever I do draw it… I need to think this out more fully.
We can use (excuse me) WMDs as a starting point, and work from there. This is a tough issue.
There’s quite a difference between a Beretta .25 that’s illegal in DC and a nuke. I’m not familiar with federal regulations concerning explosives and it’s so wildly far off topic that I can’t see how it matters. For the record, while I chafe at some NRC restrictions, the inability to own a nuclear bomb has never troubled me (and I couldn’t afford one anyway).
I don’t believe a person should have to pass a proficiency test nor be licensed to purchase/own a firearm, but I’ve come to accept that background checks when buying from an FFL are here to stay.
No. You are assuming that everything is either a federal/state issue. Some things we reserve to the states, and some things we don’t. Establishment of religion is no longer allowed by the states (although it was at one time).
No it doesn’t, and no it didn’t. It was common in the early years of this country for states to have established religions. Go look at the early constitution of MA. It was only in the 20th century that the establishment clause was incorporated by the SCOTUS to include state action. That was not the original intent.
It was an interpretation of the 14th amendment that incorporated the establishment clause, IIRC. One needn’t extent that to the 2nd amendment-- which was clearly meant as a restriction on federal action.
Well, I need to disagree with John, but in a manner I think he may not object to. I agree with most of the above, but:
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The intent of the Fourteenth Amendment was to recognize that all born or naturalized citizens are citizens of the United States, and as such have rights that states may not infringe upon. To be sure, what they meant to imply is that black people have equal rights with white, and (mostly Southern) states cannot alter this. But they wrote it in a manner that presupposes there are actual rights being guaranteed.
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While one might treat that guarantee like Bork treated the Ninth (and certain conservative commentors here agree with him), viz., well in some ideal world there are to be sure some rights which this guarantees, but it doesn’t specify which ones, so we’ll never know and can never use it for anything more useful than to say that if a state constitution or a statute takes note of some right, they’re not violating the complete list of rights in the Constitution. Instead, what the Court has done is to assume that those rights that citizens of the United States have are specified in the other clauses of Section One of Amendment XIV and in the Bill of Rights – but to recognize them on a case-by-case basis. This means that it is not necessary to bind some state civil court processing small claims cases into holding a jury trial every time someone wants to get snotty and the amount at suit is over $20. Rather, we recognize that the ‘fundamental right’ being protected by the Seventh and guaranteed as against the states by the Fourteenth is the right to a fair trial with due process of law. A judge cannot be arbitrary (unless, like Judge Judy, he or she has been selected as an arbitrator), but must rule according to due process and with tender care for the rights of both parties to the suit. Failing this, empanel a jury.
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Nitpick – Justice White (a strong conservative) began the incorporation process in the 1890s.
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Incorporation is, absent a presumption of charitable good will towards all claimed rights on the parts of all states at all times, the means by which we as a people ensure that our citizens are a free people, entitled to the rights we claim to guarantee in our supreme law of the land. Mapp v. Ohio might make this very clear: The Feds. were barred from admitting evidence discovered through an illegal search and seizure – so they turned it over to the State, where it was, until that case, admissible. It’s fine to say that the Establishment Clause means the Federal government can’t force your kids to parrot the Lord’s Prayer (or the Hail Mary, the Sh’ma, or the Sinner’s Prayer either) – but it’s pretty meaningless if the school district, a creation of the state government, can and does.
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I find the “penumbras and emanations” sneer to be prettty damn offensive, particularly when made by a supposed lawyer who theoretically has taken an oath to uphold the law of the land. This would be like saying that the state can station a cop in your bedroom, and it’s perfectly legal to do so, with the idea he’ll arrest you if and when you do anything he considers illegal, as long as he doesn’t conduct an illegal search or seizure while he’s standing there. The ‘free association’ clause that conservatives find in the First Amendment is one of those vaporous emanating penumbras – the only spelled-out guarantee you have in the First Amendment is that you can gather while you’re petitioning Congress for relief of grievances. You have no explicit guarantee of a right to come together for any other purpose.
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People who read the “militia” clause of the Second Amendment to mean that it’s protecting some supposed right of the state to arm its National Guard are doing the same straining at gnats while swallowing camels that they mock others for doing in other contexts. The Amendment, as written, and with past jurisprudence regarding the Bill of Rights kept in mind, says that the Federal government cannot abridge the right to bear arms. It doesn’t specify which arms, or how powerful, and it does not address the States’ powers. Because we incorporate BoR guarantees into the Fourteenth piecemeal, on a case by case basis, it has not yet been incorporated, and reading it in a manner consonant with the grants of power in the Constitution would seem valid. You do not have a right to bear a battleship or a warplane, and an ICBM seems a reasonable conclusion from them. May a state regulate weaponry according to the same ‘reasonable man’ standard that prevents kiddie porn, false alarms, or inciting to riot while generally protecting freedom of speech? I suspect so – but it’s up to the Supremes to decide.
This part is correct.
This part is wrong. That’s why they added the Tenth Amendment, so that we can know.
This makes sense - provided the Supreme Court does not violate the clear sense of the Constitution in its interpretation.
The Second Amendment guarantees a right to the people, and gives a rationale for its explicit inclusion in the BoR. Any decision that would infringe on the right of the people to keep and bear arms to the degree necessary to form a well-regulated militia is illicit. The handgun ban in DC is clearly illicit by that reasoning - hand guns are fairly obviously included in the equipment of a militia, while nuclear arms are not.
The Fourteenth Amendment means that states cannot infringe on the right of the people to keep and bear arms either. Even if they decide they don’t want a well-regulated militia, they don’t get to opt out of the Constitution, just as they cannot decide to establish a state religion or prevent free speech.
In essense, the Founding Fathers were saying to the states, “You don’t think you can trust your own people? Tough - they have a right to keep and bear arms so that they can act on their own if necessary, either against the state or the federal government. So back off.”
I expect the Supremes will resolve the case in question and dodge the establishment of a clear individual right to bear arms. Unfortunately.
Regards,
Shodan
PS - Happy Thanksgiving to all.
Shodan: Excellent post. I would not have thought you were even more strongly a supporter of incorporation than I am, but I’m pleased to see it. Beautiful distinction between personal arms and, for lack of a better term, WMDs, with a logical rationale for drawing it.
I have just one bone to pick with it, here:
Nuh-uh. The Tenth Amendment says not word one about rights, nor was it intended to.
Rights inhere in individuals – occasionally in groups, by the nature of what the individuals possessing them do to exercise them. Powers inhere in institutions of government, being given them by (ideally) the consent of the governed, or by their seizure by the powerful.
Amendment IX says: “Don’t read the listing of rights in Amendments I-VIII to imply that’s all the rights to be recognized; there are others, which cannot be abridged either.” It’s about unspecified rights, in other words.
Amendment X is its twin sister. It says: “This Constitution lists the powers of the Federal government. Anything not specified or necessary to one specified is a power that belongs to the states, unless this Constitution or their own forbids it to them too, in which case it reverts to the people from whence it came.” It’s all about govenrmental powers.
For some reason, people tend to fail to draw what I see as a very clear distinction between powers and rights. You may do as you like, unless for the equal benefit of your neighbors or the public as a whole, you are estopped from doing it by use of the police power. Where you have guaranteed rights, the police power may not infringe upon them. Where two rights, two powers, or a right and a power come into conflict, the court relies on the Constitution and legal principles to ascertain what comes out on top in that particular case.
Then tell us what it is. They’re both “arms”, right?
No ducking allowed. To the contrary; it’s the *heart * of the topic. Are you a Second Amendment (Second Half Only) absolutist or aren’t you? If not, why not, and where do you draw the line and why? If it’s at “reasonable” control, then how should “reasonability” be defined and implemented, if not through the political lawmaking process?
Where the hell do you get *that * from? Most past jurisprudence *upholds * the collective-right interpretation and thereby permits reasonable control. Cite.
Even if that crack *had * been fact-based, it would still be unworthy of you.
I don’t see how the 14th amendment implies incorporation if the constitution didn’t already do so.
Now, there may have been more “intent” than just that in the 14th, but if there were then there should have been more “content” than already existed in the constitution and which had never before been interpreted that way. I’m not suggesting that we make past incorporations null and void, but that we should not just automatically assume that incorporation is the way to go.
It will be interesting, though, if the SCOTUS were to rule against a general right to bear arms. I suspect we’d see a constitutional amendment to correct that. Which is, I believe, the proper way to proceed when things aren’t clear. Let’s work it out in the legislature rather than in the courts.
Even grammar is political.
In any case, “the people” does not mean “the citizens,” “the persons,” nor “each individual”; it means the nation/state/race collectively. Singular noun, singular meaning. Semantically, the Second Amendment means jack-all to individual rights. It’s misinterpreted by persons who want to shoe-horn in an individual right to bear arms, which is arguably a good idea[sup]*[/sup] but not guaranteed in the Bill of Rights as written.
- [sub](with qualifications to prevent, ex gratia, private stockpiles of WMD’s)[/sub]
I have suggested just that to some of my gun-toting (like me) friends, and been much bellowed at. To ammend, it seems, would be admitting that the 2nd isn’t as complete as they have insisted it is for decades.
This is not the interpretation of the Supreme Court with regard to the use of “the People” in regard to any other part of the Constitution. “The People” is uniformly considered to apply to individual persons, not the collective population as a whole. As a person, you have the right of free expression, an expectation from unreasonnable search and seizure, et cetera. This is a blatantly incorrect and inappropriate rationale.
Stranger