It’s not, and you’re hijacking your own OP by obsessing about guns. The second amendment concerns the ownership of arms, not guns.
The difference is not merely semantic, as it goes to the intent of the framers: protecting guns isn’t the point, which is why they didn’t do it. Protecting the ability of the people and the states to arm themselves, whether by gun or other weaponry, is.
Indeed, you could make a passable argument that gun laws are defensible so long as knives are still legal. It’d be kind of stupid, IMO, but no more ludicrous than the idea that the interstate commerce clause was intended to allow the federal government to regulate anything they want.
What does the sentence ‘do’ that makes it an anachronism?
It is settled that the only thing the Amendment does is redundantly forbid the federal government (and now state governments) the exercise of powers never granted.
The right to arms doesn’t exist because the 2nd Amendment is there, nor does it exist from a particular interpretation of the 2nd Amendment . . . The people possess the right to keep and bear arms because the people never conferred a shred of power that would permit the government to even contemplate the personal arms of the private citizen.
Should the right to vote go by the wayside too? The Constitution is a charter of conferred powers that the people grant to government. Government exercises those powers with the consent of the governed. Surely if you believe we have the right to consent to be governed you understand that a right to rescind that consent is also retained by the people.
What if the revolution was begun to restore the Constitution? Again, We the People granted government it’s powers and We the People have retained the right to take them back.
When the government is violating the principles of its establishment it is no longer, ‘the government established by the Constitution’. It is then and forever more, an illegitimately governing entity, incapable of claiming the protections of the Constitution it is violating. It is then subject to the people’s original right to rescind their consent to be governed.
[quote=“John_Mace, post:1, topic:618976”]
the “right to bear arms” isn’t really something the state should guarantee if the purpose is to be able to overthrow the state./QUOTE]
The state possesses no [legitimate] power to have an opinion on a retained right of the private citizen.
The right to keep and bear arms is not granted, given, created or otherwise established by the 2nd Amendment. The right to arms is in no manner dependent upon the Constitution for its existence. The right to keep and bear arms is an original, fundamental right that the people possessed before the Constitution was established and as no power was surrendered by the people to allow government to have any import whatsoever over the personal arms of the private citizen, NONE EXISTS.
You are positing that the government should “take back” something it never possessed.
[QUOTE=Abatis]
You are positing that the government should “take back” something it never possessed.
[/QUOTE]
Yep. The Amendments and the Constitution itself, as well as the BOR were all limits set on the GOVERNMENT, and laying out what they couldn’t arbitrarily screw around with in the future based on short term changes in some of the electorate, not limits on the citizens and what they would be allowed to do by a munificent government granting them boons.
-XT
The 2nd doesn’t demand tactical equivalency, it only intends to perpetuate the general militia principle under a republican form of government that follows centuries old population ratios / percentages. These ratios were explained by Madison and we remain nearly spot-on 244 years later.
Madison said the largest standing army a nation could support equals 1% of the total population. The “militia” (all those capable of bearing arms and working in concert) would number 25 times the standing army. Citizens with actual “arms in their hands” would be a few points less, outnumbering the standing army by a factor of 17-20 to 1.
Today, Madison’s ratios remain true; 300,000,000 population, 2,800,000 active duty and reserve military and at least 65,000,000 citizens with arms in their hands.
Well, the sure way to find out is to try . . . LOL.
Government agents (i.e., police) owe no duty to individual citizens to protect them from danger or to immediately act to protect an individual even from imminent danger. The police are not there to keep you “safe”, except in the most general sense. The only exception, when government agents are responsible for the safety of a citizen is if that person is in their direct care or custody.
What about the period before 1942, when the “collectivist interpretation” was first birthed in the federal courts?
SCOTUS has remained consistent regarding the 2nd Amendment and the right to arms. SCOTUS has always held that the right to arms is not granted by the 2nd Amendment and is not in any manner dependent upon the Constitution for its existence.
You will need to explain how a provision can be “interpreted” to condition and qualify the right being secured when the right does not in any manner depend on the provision for its existence.
The Supreme Court has never embraced any aspect of the collective / state / militia right interpretations . . . All they did in Heller i was invalidate lower court inventions and diversions and correct the “mainstream interpretation” so it aligns with the Constitution.
You’re talking about the Battle of Athens/McMinn County War.
Regarding the idea that guns are poor methods of self defense, which I’ve noted is a rather common thread in the discussions on this Board, here in the Seattle area, during the last three weeks, there have been at least five instances where homeowners successfully defended themselves using firearms, most of which were handguns.
Case: A nutjob, whacked out on cocaine and several other pharmeceuticals, broke into a house by throwing a propane tank thru a sliding door. The homeowner and his wife retreated into their bedroom and locked the door. The thug began pounding on the door and threatening what he was going to do to them. The owner called out numerous times that he had a gun, and that the thug should get out. Thug broke down door, and was immediately shot and killed.
Case: Three thugs, two male and one female, broke into the house of a retired policeman. Result, one thug killed, and one shot in the leg (this one fled with the female, but had to turn himself into the hospital a short time later and was arrested).
Case: Woman living alone noticed someone trying to break into her patio door. She gets her trusty pistol, taps on the glass door, and shows the gun to the thug. He immediately decides there is no profit to be had here, and exits the premises at a high rate of speed.
Case: Man is awakened by the noise of someone trying to get in his front door. Confronts him with a shotgun - Interloper flees, followed by the homeowner,and tries to evade capture by jumping into a nearby lake. After suddenly realizing that the temperature of this lake is about 45° F, climbs out again and is held shivering by the homeowner until the police arrive.
Case: Man is allerted to the sounds made when a thug tries to break into his pickup truck. Takes shotgun and peppers said truck, and (I think) wounds the criminal. As the homeowner was not actually defending his home, this one may be in a spot of trouble, but I haven’t heard any further details.
Really excellent point. Please feel free to replace “guns” with “arms” in any of my posts. The argument doesn’t change.
Good look trying to get the SCOTUS to find a right to bear arms w/o the 2nd amendment. Without that, a gun is just another commodity of interstate commerce.
But even if you were right (arguendo), then I say let’s give the government the explicit power to regulate and control guns.
[QUOTE=John Mace]
But even if you were right (arguendo), then I say let’s give the government the explicit power to regulate and control guns.
[/QUOTE]
Um, John? They ALREADY have that power to both regulate and control guns. That train left the station decades, hell nearly a century ago at this point and it ain’t ever coming back. The 2nd merely protects a free citizens right to keep and bear arms, but doesn’t preclude the government from being able to regulate or control guns or other ‘arms’…just as the government has the ‘right’ (or, IOW the power/mandate) to crack down on kiddie porn or other unsavory aspects of what otherwise would be considered ‘free speech’. They also have the ‘right’ to regulate assembly, as can be seen by requiring, in some cases, a permit to assemble or protest.
-XT
Interesting, although it would seem to me that the usage of ‘or’ means that it is not limited to things taken in a man’s hands - a cannon, for instance, can be considered a thing that a man ‘useth in wrath to cast at or strike another’, which is not dependent on the prior part of the definition, since it’s separated by ‘or’ rather than ‘and’. I looked over the court’s opinion to see if there was any comment on that, but since the case was purely about pistols as far as I could discern, they sensibly made no mention of it whatsoever.
Still, even if limited to those things that can be carried, it still leaves a large number of weapons which I would still be uncomfortable allowing people to own and carry freely - things like Stinger missiles and SMAWs would certainly fall under that. Clearly it’s reasonable that laws have been passed prohibiting this, but I would be more comfortable with a second amendment that specified something along the lines of ‘common soldier’s weapons’ or ‘most commonly used military or combat weapons’ along with a ‘and anything of equal or lesser destructive potential’ or something along those lines.
Oddly enough the ownership of a machine gun (mostly only of use in military use) is more restricted than destructive devices.
Depending on your state law of course but the limit federally a “destructive device” is only a tax.
At the cost of a chevy volt a shot I doubt stinger missiles would be a big risk but you can get a mortar for a couple of grand and the shells cost about $60 a pop plus the $200 tax each.
I agree with others that the 2nd amendment is put in place to protect states, not to overthrow them. But it does specify states, as individual entities, not the Federal government.
I’ll ague for the hell of it, that the 2nd amendment was a foreshadowing of the Civil War, to allow the separate states the freedom to rise against an oppressive United States government. So the outcome of the war should have sealed the fate of the 2nd Amendment.
Too bad none of the Confederates really rallied around that idea. If they had, we would have been rid of that pesky amendment 150 years ago.
I read that three times and I still don’t really understand the reasoning. If handguns became less popular, it would acceptable to ban them?
The Court has already done that (internal quotation marks removed):
[ul]
[li]"[T]he right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence . . . It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms . . . "[/li]
Presser v. Illinois - 116 U.S. 252 (1886)
[/ul]
The citizen possesses the right (exception of power not granted to government) because of the fundamental structure of our republican form of government and the inclusion of the general militia concept as an inseparable component of its form. “Even laying the constitutional provision in question out of view” the citizen possesses the right to keep and bear arms. Note that this is enforceable against the states as well (essentially taking “incorporation” of the 2nd Amendment off the table).
Except that the majority of states have RKBA provisions in their Constitutions and states have reacted to federal overstepping of authority by expanding the right for their citizens. Review THIS and note the dates of revisions or outright enactments in the late 20th Century in reaction to assaults on the right by federal entities.
LOL.
Total fail demonstrating an ability to think about this subject with the depth of understanding it requires.
Do you know what the process is for amending the Constitution?
That’s where the “in common use” comes in . . .
As for weapons of war, legislative restrictions have merit and are defensible because of the principle of conferred powers. WE the People conferred warmaking powers to the government through the Constitution and that includes the weapons of war. The powers granted to the federal government preempt other entities acting in similar fashion i.e., states or the people printing their own money or keeping their own army…
Second is the fact that Congress has relieved the citizenry from any militia obligation and in fact extinguished all militia powers that existed under Art I, § 8, cl 16. Since 1903, no entity is constitutionally authorized to call up the citizens, organize and train them or deploy them as militia.
That reality doesn’t alter the fundamental right to arms but it does modify the protection sphere of the ***types ***of arms that enjoy near absolute immunity.
The final holding of Heller was a balancing act that honored the fact that no power was ever granted to government to impact the personal arms of the private citizen but tempered with the fact that militia service is no longer expected from the citizens. That’s why “in common use” became a more important criteria under Heller rather than the “type usually employed in civilized warfare, and that constitute the ordinary military equipment” criteria that has historically and legally been the standard for 2nd Amendment protection (which of course remains).
The “in common use” criteria allows the law to expand and cover weapons of the future that might resemble a typical rifle but be more devastating, i.e., a “phased plasma rifle in the 40 megawatt range”.
Then the issue isn’t about an “commodity of interstate commerce” unique from all others. It’s about the functional ability to perform the action of arming oneself.
There is no constitutional provision specifically preventing laws against bookstores, or laws against selling yarmulkes: but such laws would be struck down because they violated constitutional provisions protecting speech and religion, and the items being sold are essential to the freedoms being preserved. Book and yarmulke sales can be (and are) regulated, so long as the essential freedom is not compromised.
In the same way, the goal of the second amendment is to preserve the freedom of the citizen to arm themselves; laws banning weapons are struck down if and when they violate constitutional provisions protecting the right to arm oneself, and the items are essential to the freedoms being preserved. Weapon sales can be (and are) regulated, so long as the essential freedom is not compromised.
Nope. Did you miss the part about being part of the militia, and about this being an injunction against action by the states, not the feds/
the 2nd Amendment off the table).
Already addressed in the OP, and in response to another poster on page 1.