And empirical studies show that going from a no issue to a shall issue state does almost nothing to the rate of violent crime. There is no discernible crime deterrent effect and there is no discernible increase in violence. Nothing statistically significant at least.
Well, Heller said that you can’t ban handguns even if you permit shotguns. Just having the right to some form of “arms” is not sufficient to satisfy the constitutional requirement. You’ve got to let people have handguns because that’s what people prefer.
The court could similarly say that is is insufficient to allow open carry when so many people prefer concealed carry.
It could. It could also say that concealed carry is unnecessary since people have open carry. Or it could say that concealed carry is not protected by the 2nd Amendment.
They are? :dubious: Could you list all the times in the US Constitution that the word “gun” and/or “guns” is used?
The second amendment. What did you THINK the word arms meant?
In addition I would add that the word ‘people’ or ‘person’ is used many times in the various amendments that make up the ‘Bill of Rights’.
Amendment I
Amendment II
Amendment IV
Amendment V
Amendment IX
Not to mention the very first sentence in the Preamble to the Constitution: “We the people…”
While it is clearly understood what that means in every single case the anti-gun crowd seems to think that in the 2nd amendment it means something completely different.
That’s quite the unsupported assertion.
I don’t know that I ';ve seen that sort of thing. Disagreements as to what a militia is, and how it is to be well regulated, differences on what constitutes an “arm” and how that relates to the protection of a free state, or even what level of infringement is acceptable are certainly areas that people have differences in meaning.
As far as “people” goes, the only ones I see having issues with that concept are those that subscribe to the notion that “corporations are people too, my friend”.
I noticed that you left out the part that says “the right of the people to keep and bear arms shall not be infringed”
We… you and me, are “The People”.
And, FTR, the Supremes have already ruled on the meaning of both ‘people’ and ‘arms’.
“the right of the people to keep and bear Arms, shall not be infringed.”
Before Heller, some anti-gun folks thought “people” meant the states.
Umm, how did I leave something out of something that I did not quote? I pointed out that there are disagreements on several of the terms in the second amendment, but “people” is not one of them.
Your response does not in any way address my post.
Once again, not responsive to my post. What anti-gun folks thought that people meant states? I suppose that there may have been some obscure blogger somewhere that did so, but any actual politician or person with influence? I ask because not because I completely doubt it, but because I have never seen this. Can you cite any sort of person of influence claiming that states=people?
Now, that there are those that felt that the rest of the amendment was relevant, and not just florid language, I would not doubt, but that is not the same as thinking that people=states.
As you actually quoted the amendment, I do note that both of you left out, “A well regulated Militia, being necessary to the security of a free State,”
But your post was responsive to mine? You quoted several parts of the 2nd amendment but left out the ‘important bits’.
And once again, per the Supremes, there is no argument regarding the wording of the 2nd amendment.
Would a Chief Justice of the United States count as an actual person with influence?
(Note that this was not a SCOTUS decision, or even “dicta”; it was from an editorial in Parade Magazine.)
Not exactly a “states=people” statement, but similar along those lines was Justice Stevens in his dissent in Heller:
There were lots of folks confused about the meaning of “the people”. Still are, unfortunately.
People keep saying “the militia” as in a singular organization, but that’s a modern construction. Contemporary to the 2nd Amendment “militia” was a plural, and consistently referred to the armed populace. Seriously, take a look at the Federalist and Anti-Federalist papers. They consistently use the word militia in a context that makes it clear they’re talking about people, not a state-organized body.
As for “state armies”, why doesn’t anyone (but me, seemingly) remember the Compact Clause, which explicitly forbids the states to have “troops”?
Are you specifically talking about Federalist 29? Maybe we are reading it totally differently, but I think it is clear as day that Hamilton was arguing for a well-trained militia, that shouldn’t get too large as military service would detract from more useful activities.
Further, Federalist 46 mused about a Federal army of no more than 35,000 soldiers going up against “a militia amounting to near half a million of citizens with arms in their hands.” That would be about 10-15% of the total population of the US at the time.
Setting aside the issue of what the terribly-written Second Amendment says, I just don’t see the Federalist Papers as arguing that “we are all the militia.” What, specifically, are you trying to point to?
Who did they expect to do the regulating well, then? :rolleyes:
The whole debate about having a standing army, the basis of the amendment, was settled long ago, i.e. almost immediately after ratification. You might want to crack a book and find out more.
Indeed there are. Makes you wonder just which folks are actually confused, and why, doesn’t it?
I’ll take a stab at answering . . .
Historically and legally, the setting of the rules for the manner of carriage of arms has always been a state issue and the 2nd was never examined for guidance or thought to speak on any aspect of concealed carry (primarily and simply because the 2nd was not applicable to state laws).
Understand, the concealing of a weapon was always considered dishonorable by the citizenry and authorities and the indefensible action of a ruffian or criminal and was often prohibited in local or state criminal law. People on both sides need to understand is that going back to the early 1800’s, state laws forbidding the concealing of a gun were not an attack on the underlying right to be armed for self-defense (unless you were Black of course).
I think the 2nd Amendment (as applied under the 14thA) does secure a right to bear arms in public for self-defense that all states will eventually be forced to recognize it. Heller expressly says that the 2nd Amendment, “guarantee['s] the individual right to possess and carry weapons in case of confrontation”.
But, setting the rules for the actual manner of carriage will remain in the state’s prerogative. IOW, discretionary (discriminatory) proving a “pressing need” hurdles will be found unconstitutional and states will be mandated to provide some system to allow law-abiding citizens to carry, even if it is -no- system, open OR concealed without permit.
I think that this -concealed- vs -open- question is a good candidate for the courts to apply what the left always says we need, a “modern condition” consideration in interpreting / applying the law. Without question the sentiment regarding concealed arms has reversed. The modern, enlightened public and many arms bearers reject open carry and now consider concealed carry to be the responsible manner of carry and more respectful to the tender sensibilities of the public. Concealed carry in and of itself has never been found to be federally protected but I think it should be. I guess we will see how it shakes out.
When you actually understand it, the penumbral rights theory supposes certain conditions exist regarding enumerated rights.
To me, the hostility some liberals have for the right to arms draws the foundation for the penumbral rights theory into question.
If the right to arms link can be cut out of the chain of the Bill of Rights, that means Harlan’s “rational continuum” of liberty cannot / does not exist, thus the legal argument that found penumbral rights is obviously false and a charade (Griswold directly relies on Harlan’s dissent in Poe). Justice O’Connor wrote, elevating Harlan’s dissent to the opinion of the Court:
[INDENT]"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:
[INDENT]"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."
*Planned Parenthood of Southeastern Pa. v. Casey*, 505 U.S. 833 (1992)[/INDENT]
[/INDENT]
For me then, the question is, how can a right that is a derivative of a right that is only recognized to exist in the “penumbras” and “emanations” of the rights secured in the Bill of Rights (including the RKBA) be more vital and more secure than a right that is specifically, expressly enumerated in the Bill of Rights?
Note; I’m not arguing against the penumbral rights theory; I consider the penumbral rights doctrine to be an acceptable work-around for the gutting of the privileges or immunities clause of the 14th Amendment by SCOTUS in Slaughterhouse so unenumerated rights can be recognized and secured. Its reasoning is solidly grounded in the 9th Amendment but as we see, both sides pick and choose what they consider “explicit”, binding and worthy of even recognizing (like asking, 'where’s THAT right in the Constitution?).
But with the federal government the presumption is that unless a power is granted to the feds it is either retained by the people or the states. IOW, we don’t need SCOTUS to tell us a right exists federally; if there’s no power granted than a right exists . . .
The delay in enforcing the 2nd against the states has created a problem where there is more uncertainty than certainty. Add in the fact that much of the lower federal court cases coming up now on carry and assault weapons are rising from states that don’t have a right to arms provision in their state constitution means that much of the underlying case law is a den of snakes with no distinct body. That the lower courts are misrepresenting the upper guiding case law (Heller’s “and the like”) only confounds the issue.
That sounds like a strained, purposeful misreading of 29.
29 is saying the militia is all the people – it is assuring the people that none of the British qualifications and conditioning on the right to arms would be instituted by the new Constitution. The stipulation that the militia is comprised of “the great body of the yeomanry, and of the other classes of the citizens” is a direct refutation and condemnation of the exclusions outlined in English common law and their bill of rights that the framers held in contempt. It is saying the militia is “everyone”, not just landholders or titled citizens . . .
29 explains why requiring the “whole nation” to train to the degree of perfection so the accolade of “well regulated” can be awarded, is foolish and unreasonable. Because the militia is comprised of nearly every White male of productive age, to take them away from their vocations would subtract from the nation the value of nearly the entire economy. Hamilton concludes the best that can be hoped for is to simply have the “people at large” have proper arms in their hands and assemble once or twice a year for inspection.
Hamilton does propose a separate and distinct “select corps” of professional militia and he recognizes the fears that would arise from organizing such a force. He tries to alleviate those fears by saying that the people retain their arms and could easily crush any force loyal to the federal government that tries to invade their liberties. He does not call those citizens “militia”, the presumption being the creation of a “select corps” would relieve universal impressment of militia duty on the general population.
This fear of a liberty-crushing federal force is a common Federalist theme which is addressed by Madison in Federalist 46 which you screw-up too – to the point that it demands its own post.
For reference here is Hamilton’s exposition in Federalist 29:
[INDENT]
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
[/INDENT]