I don’t see the reason for a law as being inseperable from the meaning of law. The right to own firearms may have originally been created in order for white men to form paramilitary organizations. But the right exists even if there is no longer any need for those organizations.
Let’s say there is a street in our town that has a school. We argue that because of the school we want a 20 mph speed limit on that street and enact such a law. A few years later the school closes. The original reason for the speed limit no longer exists but the speed limit is still valid unless we specifically repeal it.
The second amendment says: “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” not “As long as a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed”.
You do not address whether it’s a collective right, to have a well-regulated militia, or an individual right, to cold dead fingers, that persists. That’s what the argument that the first half of that single sentence has no effect is based on.
One could, of course, argue that all individuals have the right to bear arms, and that the way an individual should exercise that right is to join his local militia. The substance of the amendment, then, would be that the militias are not allowed to turn away any recruits who want to join.
Except you are forgetting that they have the right to KEEP and bear arms. So…I have the right to keep them (i.e. for my personal use) and I have the right to bear them (i.e. I can’t be denied the right to join the military).
It being a collective right seems unlikely. If “the people” only have a right to keep and bear arms at the time when they are serving in a militia, then the effective result is the government has the right to arm the people. That seems an unusual thing to enshrine as a right. It’s like saying the government has the right to deliver mail or operate the courts. Governments have always had a right to raise troops. The fact that the right to bear arms was including in the Bill of Rights seems to me to mean that it was seen as a non-governmental right - one that people held as individual citizens not as government agents.
I’ve heard this argument made before. It says that the second amendment would prohibit policies like “Don’t Ask Don’t Tell” because the government cannot restrict the right of gays to join the armed forces. Similarly, past restrictions on blacks, women, and native americans serving were also unconstitutional. It’s an interesting argument but, as far as I know, it’s never been the basis of any court rulings.
Not necessarily. I have a number of pieces of software on my computers that I have a right to keep by virtue of the licensing agreements my alma mater had, even though I no longer attend that school. But I did have to attend that school at some point to have the right get them.
Or at least, it would prevent the militias from instituting a policy similar to DADT. Applicability to the federal armed forces would probably have to be decided by the courts, since the Founding Fathers didn’t really anticipate a strong permanent federal standing military.
The Constitution states a reason (“To promote the Progress of Science and useful Arts”) for the Patents and Copyrights Clause. The argument was made that the Sonny Bono Act clearly did not serve this purpose (the factual record of the court being bereft of any examples of seventy-to-ninety-year-old corpses rising from the grave to produce additional works of science or art). The Court rejected this argument, finding that Congress’ power under the Patents and Copyrights Clause was not limited by the stated justification therefor. QED.
It would create a situation like that in Heinlein’s Starship Troopers, in which the government is positively obligated to come up with some job any given recruit is capable of doing.
I would think that even if we all agreed unanimously that a militia in this day and time is a very, very bad idea, we would still need to amend the constitution, because that document says that the militia we all hate is necessary for the security of a free state.
Until we formalize it, the militia is still necessary by law because the controlling constitutional provision says it is, and because of this, we have the right to keep and bear arms.
Like your school speed limit, I don’t think you could wish it away by making an assumption that it isn’t needed anymore.
Neither the Federal government nor the states (nor their creatures the local governments and school districts) has any right to compel people to undertake any religious observances or to refrain from any such that they freely choose to undertake. (Hey, if a discussion of the Third Amendment can be hijacked into pointless argument #6,768 as to whether the Second Amendment conveys an individual or communal right, I should be able to make a non sequitur about the First Amendment, right?
It also states that inventors and writers have opposing rights, and what Congress can do to resolve the tension. Which Congress did. None of that is analogous to the Second, and none of that means that a stated reason means nothing.
Irrelevant. The argument “the stated reason for providing this right is not applicable” was raised before the Supreme Court. The Supreme Court said “that doesn’t matter”. QED.
