I’ve looked at the Wikipedia page–thanks to John Mace for the link–& I stand corrected. Apparently there was both precedent & reason for an expectation of the populace generally to bear arms.
But I maintain that that is not semantically plain from the text without a knowledge of the pertinent history.
My (long-winded) two cents:
I think it should be obvious to any reasonable observer of this debate that it cannot be settled on plain text alone. Neither a meaning that entirely ignores the qualifying phrase, nor one which arbitrarily limits the amendment to serving only that purpose is appropriate. It is genuinely ambiguous without some kind of context.
So, like many sticky Constitutional issues, the question becomes what do we do when the text is insufficient? An Originalist of the Scalian stripe will ask what the text meant to those who adopted it. On this count, the evidence is conflicting. Early courts interpreted the amendment as not providing an individual right. It would be odd indeed for such an Originalist to believe that a court in 2008 has a better idea of the original meaning than the courts closer to the enactment. Yet, other contemporaries of the text—including some of the framers—may have interpreted the text as providing an individual right.
The story is similar if we look to the intent of the framers. It is clear that some thought the amendment limited the federal government’s power to disarm militias. Others believed the amendment provided an individual right for purposes of self-defense, hunting, etc. In all likelihood, there simply *were *divergent intentions as there is for almost all legislation today. Privileging one intention over another is not the role of the Supreme Court, and this would be anathema to Scalia (in theory, while perhaps not in practice) and Ginsburg alike.
Where does this leave us? If plain meaning, original meaning, and original intention are all mired in ambiguity and divergence, what do we do? The only good answer is to amend the amendment to be consistent with whatever our democracy now believes. Since that’s not going to happen, the court must simply find some other basis on which to decide. I suspect that this basis will be political allegiance. But there are alternatives. The court could defer to public policy goals, or simply the principle of stare decisis (to the extent the previous courts have settled the issue). Or the court could reason that the tie goes to the legislature, as it were. This would be a deeply democratic decision, believing that in the absence of a clear Constitutional restriction, a legislature should be free to pass reasonable laws. Interestingly, this is the very situation that a Scalia or a Thomas would defer to the legislature. But in this case, they are not likely at all to do so. And they would not be the only ones free of hypocrisy if they were to follow this road since this ambiguity-goes-to-the-legislature rationale would seem to contradict many liberal sacred cows as well.
If it were up to me, regardless of the decision for D.C., I would limit the holding to federal laws. I would not incorporate the Second Amendment on the basis that it is, at least in part, about the relationship of citizens to the federal government. That way, however the merits came out, we could let the laboratories of democracy decide for the majority of Americans (something conservatives generally favor, but again, will almost certainly not favor in this case).
I’ve lost track, so what happened to the San Francisco gun ban? The pros were going to jump all over that one, but I haven’t heard much lately. How does that ban differ from the DC ban?
Ugh, too much Thanksgiving turkey. This sentence was supposed to say something like this: liberals would not be free of hypocrisy with this approach since the ambiguity-goes-to-the-legislature rationale would contradict many liberal sacred cows.
I feel that the meaning of the text is clear and that anyone who finds it unclear is simply trying to find a constitutional way to ban guns.
It is clear to me that the founders feared a central government and wished to give the local militias the power to overthrow the central government should it need to. They hated the idea of standing armies in time of peace and wished for the people themselves to provide for their own internal security AND for this reason, “the right of the people to keep and bear arms shall not be infringed”.
Just because the rationale for the granted right has practically disappeared today, the why does it follow that the right itself has disappeared? Where is the restrictive language that states that the right is ONLY for militia use? Owning arms was common at the time, and nobody thought that the only purpose for guns was militia use.
If you read any number of quotes from the founders, the idea would be laughable that a just government should deny a free person the right to arms.
Well, you’ve conflated two issues here. If the text is clear, then it is clear without any reference to founder’s intention or understanding of the text. If it were so clear, I don’t think we’d be having all these debates about grammar. Your position is essentially that anyone who disagrees about the clarity is being dishonest. I don’t buy it.
We must look to something else to resolve the ambiguity.
As for what the historical record actually shows, this is a debate we’ve had on this board frequently. The historical record is mixed. There are quotes from founders indicating they believed in a general individual right for the purpose of self-defense or hunting, and quotes from founders indicting that they believed the amendment was about the relationship between the federal government and state militias. In the end, we shouldn’t try to settle historical debate with contextless quotes. We should settle historical debate with peer-reviewed historical scholarship. This scholarship, as I have said, recognizes that there is no clear view that predominated among the framers.
It is hard for me, a gun owner, to read into the 2nd any real concern for hunting, self defense, plinking etc. It does seem pretty obvious that there was concern about militias.
Enumeration of rights is one of the powers reserved to the states, or the people. The federal government may not do so - it has to be done thru Constitutional amendment, or legislative action. New rights discovered by the Supremes are not legitimate. New rights discovered by the people, are.
Regards,
Shodan
In that the Supreme activists would find it hard to avoid incorporating the Second while handing down their predetermined ruling, something the reactionary faction now in control would hate to do. There is no incorporation issue with federal territory, so the DC ban makes a cleaner target. That, after all, is the reason this particular suit was invented and pushed this far.
Just what do you suggest doing about that problem, then? :dubious:
Oh, right:
And the means the people have to declare and enforce such rights is what exactly? Obviously it can’t be their elected government and its confirmed-in-turn officeholders assigned to that duty, in your view. So who does it instead?
I agree with this. The 2nd Amendment is very clear that individuals have a right to bear arms. Here’s the rub with me: how do we define “arms”? Pistols? Rifles? Semi-Automatics? Machine guns? Flamethrowers? Anthrax? Do we parse the word “arms” into three neat categories: legal arms, not-so legal arms, and illegal arms? Who gets to make the arbitrary designation and categorization? It seems clear to me that the Framers meant that all arms should be legal and available.
**Aside from my comment, I have a general history/law question: **
In the 1930’s, Congress outlawed the sell of Tommy Guns. Why wasn’t that considered an infringement on the 2nd amendment?
They weren’t outlawed, but they were severely restricted. The provision doing so was part of the National Firearms Act at issue in the famous case of US v. Miller. That case held that:
Sawed-off shotguns (and tommy guns) were not the type of weapons the Court envisioned the scope of the Second Amendment to cover. This is typical of the Court’s interpretation of the Second Amendment.
I am, after considerable study, unclear on the 2nd. I do not seek a ban on guns and do wish to hold on to mine. Not with cold dead fingers, but by law.
The framers already *said * what the original intent was, directly, in that very same sentence.
To your question: “Arms” are either for use by well-regulated militia (today, regular military via the Guard), or they are not. Tommy guns are not used by the militia however you wish to define the word, and neither are the sawed-off shotguns that the Supremes decided were therefore also bannable in Miller.
It’s amazing how many people have become convinced that the question hasn’t been settled at all simply because it wasn’t settled the way they’d prefer. Living in a democracy means you don’t always get your way, and when you don’t, you either try to get the rule changed or you live with it - or you fail to get the rule changed and then you live with that. Come on now.
The Court didn’t exactly say that. Since Miller had fled from justice, he presented no defense.
And since the Court had no evidence to suggest that sawed off shotguns (they didn’t address Tommy Guns, wasn’t presented) were a part of a militia, they dismissed the appeal.
If a lawyer would have promoted a defense, they would have been clear that those were military weapons protected by the 2nd.
I love this Miller argument, though. Are you claiming that citizens should be allowed, as a right under the 2nd, to own fully automatic M-16s, M-60s with beltfed ammo, 9mm pistols, the usual military weapons, but bolt action .22 rifles, or BB guns, can be outlawed as they are not used in the militia?
The Court was wrong with its central holding in Miller, and that is it’s last statement on the issue?
How many other decisions would you feel comfortable with regarding a 68 year old interpretaion?
You think *Miller *settled this issue? If not, what case did?
I think you have me confused with ElvisL1ves. I’m not saying Miller is a good law, I was answering a factual question.
Oka-a-ay, just how would that lawyer have presented that argument? What would it be?
For citizens who are part of a well-regulated militia, yes. But militia is legally defined as either the Guard (well-regulated), or “unorganized” (therefore not well-regulated and therefore not covered), so no conflict exists.
Until it’s reversed, which appears about to happen, tough noogies. Deal with it.
Yep. Until now.
They’re all based on a 200+ year old document, so why not?
Maybe not around the edges, and only until the arrival of an activist reacionary court determined to reverse the main holding, but yes, the main concept was that the right to bear covers only militia arms.
But then you think that the court has settled the issue in favor of the DC Circuit. Most handguns presumably fit Miller’s standard for militia arms, right?
Not necessarily that, because they went out of their way to say they weren’t banning “reasonable” controls, only absolute ones.
Only those owned by Guard members and intended for Guard use.
The unanimous Miller ruling, for reference: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
Is the argument any different for Saturday Night Specials?