How do you figure? It’s not that it mentions a militia, and then states that “the right of militia members to keep and bear arms shall not be infringed”; it mentions a militia, and then for some reason switches to discussing “the right of the people”.
If you read the early part of Heller it is discussed at length with historical citations. It has a very long pedigree. The Second Amendment recognizes this:
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.
Just grammatically looking at the sentence, it assumes a preexisting right. “The” right of the people. There are no words of creation. It references a right already existing.
The First Amendment also makes the assumption of a preexisting right of free speech and press. It does not with an Establishment of religion or free exercise of religion as those were new things to American society—in England you had an established church and various disabilities for Catholics and other minority religions.
The Fourth assumes the same with the sanctity of the home. When you get into the 5th-8th, you see the creation of new rights again.
As I said above, if you interpretation were correct it would read: “…the people are hereby granted the right to keep and bear arms for this purpose” or some such words of creation or limitation.
Re: Heller
" It held that the Second Amendment creates an individual right to possess a gun for self-defense, at least in the home."
Thanks for the reply. Do you propose that without the second amendment the US Congress and all states would recognize a pre-existing right of the general population to own and carry weapons? That the Legislators would be restrained from passing laws to restrict weapon ownership and use? Without the second, what authority would do that?
There were multiple problems with militias. Among them a lack of uniformity in training, weaponry and command structure. A major issue was the granularity of loyalty. With militias loyal to states, cities and even churches there were bound to be inter militia conflicts. They were armed groups with conflicting definitions of their problems and, being armed, they were able to take independent action against each other. Definitely not a vehicle for domestic tranquility.
Unregulated weapons outside of militias allow them to be used by individual citizens for any perceived pleasure or grievance. The result is the chaotic situation we are in today. No such ‘right’ was recognized or created by the Founders.
You’re right about one thing, it wasn’t created by the Founders. The right of the people to keep and bear arms already existed.
Why do you seem to be ignoring Heller?
I did not ignore Heller. The conclusion of Heller is that the second amendment creates a limited right to own a gun within your home.
It is not some mystical pre-existing right.
Please quote the relevant portion of Heller where they rule that the Second Amendment “created” a right?
I’ll remember this exchange the next time an unenumerated right is discussed.
Do that, but be prepared to argue that it would have been recognized at the time of the adoption of the Constitution or the Fourteenth Amendment, and come with some historical pedigree.
I don’t dispute that there are unenumerated rights that can come from the 9th Amendment, substantive due process, or privileges or immunities. But that doesn’t mean that I can take my favorite thing and just declare it an unenumerated right.
Heller:
We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank , 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”
Will @Crane admit that his post claiming otherwise was in error?
I quoted from the link I posted above. It appears that more than one view is expressed in Heller.
I’ll try to get through the 157 pages of Heller and get back to you.
You quoted from a nolo article which has zero authority for anyone. As far as “more than one view” in Heller, the dissent likewise has zero authority.
Further, could you at least address what I and two other posters have stated about the grammatical structure of the amendment and it recognizing a pre-existing right and not creating one?
When you argued before that Heller said that the Second Amendment specifically granted the right, you had no problem with its length.
As a gun owner, I don’t give a crap what the 2nd Amendment says, or doesn’t say.
I believe I have a natural right to keep and bear arms. Your move.
Natural rights are all fine and good but absent a functioning legal structure to protect them, someone who keeps and bears more arms than you or I can say “gee that’s nice” before infringing us out of existence. Something something state of nature yadda yadda nasty, brutish and short, etc. So we do want to be clear that such a structure is in place and is understood and agreed upon and gives everyone their due process and equal protection.
The argument arises because it turns out it is not understood the same way nor agreed upon by all in our society as to what that legal protection should be or what should be its ends. Some hardliners at one end of the spectrum seem to view any limitation upon unrestricted exercise of the right as “infringing”, while and at the other end are some who would argue that in this day and age reality has changed to where it should be moot to consider it “a right”.
I believe in an individual right, an inherent corollary of a right of self defense that cannot be reasonably limited exclusively to my fists and bodily strength. At the same time I believe that as with most rights, it is not exempt from bounds in time, place and manner; that in most of the US of A today this right is NOT “so heavily infringed upon”; but that too often proposals that do come up both for regulating or de-regulating it turn out not well thought out or to be solutions in search of a problem.
I posted a quote from NOLO that is in error. I apologize for that. I should have gone to the source and failed to do so. I thank you for your correction.
I fell asleep last night reading Heller and resumed upon being awakened by my cat this morning. It’s a good read. I especially liked the part where George Washington warns Congress that the militia system will fail.
My view is well expressed by Stevens’ dissent. He was kind to call Scalias’ grandstanding only “novel”. The plain understanding of the second, taking in proper order, clearly refers to weapons in the militia context.
The opinion of the court in Heller, however, recognizes the authority of the local DC government to license ownership of weapons for use within the home.
Okay, very late to the party here but I’ll put in my 2-¢ for what it’s worth.
First, to actually address the OP, the constitutional right to keep and bear arms is so heavily infringed upon because it wasn’t until 2010 that it was held to be incorporated upon the states to respect. Before then it was solely a limitation on the power of the federal government. State governments’ constitutions have varying degrees of provision for protecting gun ownership from substantial to virtually none. Notably, both federal and state laws controlling guns until comparatively recently bent over backwards to not deny that owning and carrying guns was indeed a right. They limited guns by essentially a series of legal work-arounds which didn’t flatly repudiate a right under the Second Amendment even when the spirit of that right was being infringed.
On the whole subject of natural rights, here’s an example I like to hold up: do you really believe that before the passage of the Thirteenth, Fourteenth and Fifteenth Amendments that African-Americans had no rights, or in the words of the infamous Dred Scott decision “no rights which the white man was bound to respect”? Almost everyone today would insist that they did have innate human rights, that the routine violation of those rights was evil and wrong. If so, then you are accepting the premise of preexisting natural rights. As far as the US constitution goes, I believe that a phrase from the Declaration of Independence explains it succinctly: that governments are formed to “secure” those rights.
Why do we need an enumerated “Bill of Rights”? Because unlike the British system in which Parliament is sovereign and can in principle pass a law enacting anything whatsoever, our system insists that theoretically it is the People en masse who are sovereign, ceding only that degree of sovereignty to the government necessary to accomplish what the people individually cannot; and in principle only that degree of authority and no more. But governments naturally and automatically accrue power, and the most trivial look at some of the things that duly elected legislatures have enacted or attempted to enact is enough to make your hair stand on end. In the early days of the Republic we had the Federalists who enacted the infamous Alien and Sedition Acts; and who insisted that the people had no right to contest a properly passed law by a legally seated legislature and that their only recourse was to elect different representatives next election who would reverse it. A Bill of Rights is a necessary tool to allow the courts to be a check on the the legislative and executive branches of government.
It is my belief that most of the misunderstanding about the Second Amendment is due to a single word: “militia”. As constructed from the original Latin, militia is a plural noun, meaning armed people or people in the role of soldiers. In all the documents contemporary with the Second Amendment such as the Federalist and Anti-Federalist papers, the word militia is used in a context where it’s impossible to parse it as referring to anything but the people en masse, the armed populace. In particular no writing of the Eighteenth century ever uses the construction “militias” or “a militia”. We do frequently see “a well-regulated militia” but this is similar to saying “a well-practiced population”. But modern usage has gradually shifted the meaning of the word to refer to the singular body or organization that those persons are members of, leading many to conclude that the Second Amendment only refers to state-organized military bodies. It’s the difference between saying for example “the King’s soldiers” versus “The King’s Army”. Or how “troops” originally referred to the people in a military unit but has also been used to refer to the unit itself.
I could say even more but this is already becoming a wall of text so enough for now.
And that’s fine. I have no quarrel with you for siding with the dissent. I do that in many cases. The holding has to be respected, but we are all free to argue that it is wrong.
However, I see nothing where Stevens rebutted the claim that the Second Amendment did not create rights, but mentioned a pre-existing one. He attempts to paint the picture with citations that the framers were concerned with the federal government eliminating the militia, not directly because they couldn’t do it, but make it a nullity by disarming the people.
That argument is a strawman. Nobody disagrees that was the chief concern of the framers. It doesn’t follow that it was their only concern (see the work analogy I made above). It wasn’t fathomable that a legislature would infringe on the RKBA for any other reason, so the framers simply didn’t address it, except to say that it was a pre-existing right. The anti-federalists feared your/Stevens’ interpretation of rights (that the listing of them would imply that there were no other rights) which is why the 9th Amendment was put in place. Even if it can be shown that Stevens was right and that the 2nd Amendment only applies to militia arms (which I disagree with) that still doesn’t answer the question of how to decide the scope of the pre-existing right.
I disagree. Respectfully, that is the wrong way to read this or any other case. The relief that Mr. Heller specifically asked for was that D.C. issue him a registration for his pistol as D.C. at the time would refuse to register any pistol.
The Court only rules on the questions that it is presented. It found that Mr. Heller had the right to have that pistol so it gave him what he asked for. Courts don’t go any further than that.
Whether a registration is constitutional, and whether it can be limited to the home was not at issue in Heller and will be decided when the Court reads briefing and listens to argument on those issues.
Possibly in general, but not the United States. The anti-federalists were concerned that this new national government could start passing all kinds of laws which trampled on the rights of state governments and on individuals. So they demanded a BOR.
The federalist responded that a BOR was unnecessary because the new national government is only granted limited, enumerated powers listed in Article I, Section 8. So if you are concerned that it will establish a church, why are you concerned? There is no power there to establish a church, so it just can’t do it. Disarm the population? Can’t do it. Read Article I, Section 8. No worries, no need for a BOR.
Then it became clear that there were not enough votes to get everyone on board with the new government without a BOR, so the federalists relented. But then they brought up another fear, which is relevant to this thread. They said that if we list five, ten, or five hundred rights, people will think that only what we have listed are rights people have, that if we forget something, someone will argue that it is not a right. So, the 9th Amendment was inserted.
But notwithstanding that, we have judges and others who claim that if the Second doesn’t protect the RKBA, then nothing does. That plays into the exact fear that the compromise on the BOR was designed to avoid.
Agreed. At the founding and before, the militia was not a group you joined like the Elks Club. It literally was the people.
If you read the debates, etc about the Bill of Rights, the 2nd was originally bare of any such preamble. It was added by the demand of the anti-standing army faction, rather than make two amendments. It was not meant to infringe on the right of the people to own guns for home protection, hunting and what not, it was to make sure that a Militia was also protected.
Yes, to protect Militia, not limit guns.
Yes, as we have what the Founders hated- a standing army.
What rational steps?
San Jose’s new gun law would ban the private possession all all guns. This is “small steps”? Complete and total ban of all guns?
Right, Heller was not needed until three cities tried to ban handguns, etc. Up until then, state and local gun laws were fairly mild.