# Parsing the Second Amendment **URL:** \ **Category:** Great Debates\ **Created:** [April 27, 2011, 9:28pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952 "2011-04-27T21:28:30Z")\ **Posts on this page:** 16\ **Page:** 7
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 1, 2011, 5:48pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/121 "2011-05-01T17:48:46Z")
Wasn’t the holding in Heller a unanimous 9-0 that the 2nd amendment did in fact confer an individual right? It was just that the 4 dissenters believed that a handgun ban was a reasonable restriction because D.C. residents could still have rifles and shotguns, no? ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [May 1, 2011, 6:39pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/122 "2011-05-01T18:39:06Z")
A quote from a pro-gun writer which I think sums it up nicely: > [@](#): > > In recent years it has been suggested that the Second Amendment protects the “collective” right of states to maintain militias, while it does not protect the right of “the people” to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and the Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis. > > [RIGHT]-- Stephen P. Halbrook, “That Every Man Be Armed”, 1984[/RIGHT] ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 1, 2011, 6:45pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/123 "2011-05-01T18:45:36Z")
> [@Abatis](#): > > This case was not decided on the law or precedent or the intent of the framers. It was decided for political reasons, none of which had as their concern, adherence to the Constitution, endurance of the founding principles or the continuation of this Republic. Why would you end a mostly cogent and insightful analysis with this nonsense? > [@jtgain](#): > > How about this amendment: “Working fax machines, being necessary for communication, the right of the people to have electricity shall not be infringed.” In 2020, when there are no more fax machines and everything is scan and email, does it follow that the people no longer have a right to electricity? How about writing the amendment so it doesn’t have an extraneous clause at the beginning? > [@jtgain](#): > > Wasn’t the holding in Heller a unanimous 9-0 that the 2nd amendment did in fact confer an individual right? It was just that the 4 dissenters believed that a handgun ban was a reasonable restriction because D.C. residents could still have rifles and shotguns, no? No. Stevens rejected the position that the 2nd Amendment conferred that right outright, and all four dissenters joined in his opinion (although 3 of them wrote their own dissents too). ---
**Author:** ![Abatis](https://avatars.discourse-cdn.com/v4/letter/a/d78d45/32.png) [@Abatis](https://boards.straightdope.com/u/Abatis)\ **Post date:** [May 1, 2011, 10:50pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/124 "2011-05-01T22:50:18Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Why would you end a mostly cogent and insightful analysis with this nonsense? Can there be any other conclusion for ignoring the Supreme Court and inventing a ridiculous test for the citizen to meet to claim a right’s protection? This case (with _Tot_) is the cornerstone for all lower federal and state court “militia right / state’s right / collective right” determinations, which have permitted thousands of illegitimate, unconstitutional gun control laws to remain in force. Well, _Heller_ invalidated _Cases_ and _Tot_ and thus knocked out the foundation of those federal and state cases. That infirmity can not be remedied and the great mass of these laws will fall when challenged (_ **especially** _ in states like NJ and California after McDonald! 😃 ) ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 1, 2011, 10:59pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/125 "2011-05-01T22:59:51Z")
> [@Evil\_Captor](#): > > You seem to be under the misapprehension that you are in a court of law. Not at all. I was trying, and failing yet again, to get **ExTank** to understand just what it is he’s outraged against. > [@](#): > > And I further argue that it is the DUTY of citizenry in a democracy to examine the law, settled or not, and decide if they think it is good law, and then vote appropriately when the time comes. So this debate is not just permissible but a good thing. Sure. But the problem arises when a number of individuals disdain the voting part, and go directly from “I disagree with the ruling” or “I dislike the outcome of this vote” through “Therefore the ruling is invalid”, on to “We need not comply with it” and “We have a right to resist it with violence”. IOW not everyone shares the sense of civic responsibility that you and I do, and it is a mistake to have a discussion with them as if they did. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 2, 2011, 12:14am UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/126 "2011-05-02T00:14:17Z")
Several posters here need to either to eliminate the insults or leave this thread and take their personal issues to the Pit. This kind of commentary doesn’t belong in Great Debates and I’ll be handing out warnings I see any more of it: > [@ElvisL1ves](#): > > Got it now? At long last? :rolleyes: Or do you want to go on further with your silly, choleric misrepresentations of simple facts you’ve had explained to you? Gaw_damm_, son … > [@ElvisL1ves](#): > > If you’re confused about any of the details of how our system works, just ask your Civics teacher, in the way that **ExTank** and **Una** clearly never did. :rolleyes: > > IOW, if you don’t like limitations on this claimed absolute right, you can either work to get an amendment passed, or work to get enough Justices on the bench who agree with you strongly enough to follow through, or you can follow through on your claimed, Founding-Fathers-guaranteed right to resist violently … or you can just keep whining on some damn Internet board. If you plan to do that, to take the **ExTank** route and argue with your own imagination about what you’re having explained to you, then good day. > [@Abatis](#): > > Says the sanctimonious authority on everything with 22K posts. LOL > [@ExTank](#): > > No shit. Pissy little bitch, ain’t he? > [@Una\_Persson](#): > > That being said, I wish you hadn’t rattled his metaphorical cage I don’t need to be post-stalked by him like he’s been doing to **Bricker** now for more than a year; I just don’t have either the time or the professional qualifications to deal with obsessive personalities like that. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 2, 2011, 1:09am UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/127 "2011-05-02T01:09:23Z")
> [@ElvisL1ves](#): > > But the problem arises when a number of individuals disdain the voting part, and go directly from “I disagree with the ruling” or “I dislike the outcome of this vote” through “Therefore the ruling is invalid”, on to “We need not comply with it” and “We have a right to resist it with violence”. IOW not everyone shares the sense of civic responsibility that you and I do, and it is a mistake to have a discussion with them as if they did. Fortunately for all of us, even in the rural gun-happy places I tend to hang out when I’m shooting recreationally, the vast majority of gun owners are closer to us here (talking about it, voting it, and complying with the law) than they are to the quotes in your example. Personally, the majority of gun owners I know really hate the loonies because they’re ultimately the ones ruining it for everyone–but what can you do about them, provided it’s just insane rhetoric and nothing actually illegal? I don’t know if it’ll make you feel better, but the average recreational shooter “gun nut” (defined as: guy who has several different weapons of different shooting characteristics, who’d be willing to pay to legally rent a machinegun at a range for the sheer joy of unleashing a few dozen rounds downrange) looks upon the average militia nut/‘Second Amendment Remedies!’ guy with something between contempt and outright fear, and more than a few of us know all of the loonies with guns in the local area and have a plan if it becomes apparent they’re doing something stupid (even if it’s having notes of “conversations where they advocated violence” and “list of weapon calibers they own” for tipping the police with should there be a shooting that smells like someone I know, in my case) ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [May 2, 2011, 1:33am UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/128 "2011-05-02T01:33:06Z")
> [@ElvisL1ves](#): > > Not at all. I was trying, and failing yet again, to get **ExTank** to understand just what it is he’s outraged against. > > Sure. But the problem arises when a number of individuals disdain the voting part, and go directly from “I disagree with the ruling” or “I dislike the outcome of this vote” through “Therefore the ruling is invalid”, on to “We need not comply with it” and “We have a right to resist it with violence”. IOW not everyone shares the sense of civic responsibility that you and I do, and it is a mistake to have a discussion with them as if they did. Where do you get these bizarre fantasies? The ruling is invalid; as **Abatis** notes, _Heller_ and/or _MacDonald_ pretty much invalidated _Cases_ and _Tot_, and my contention has always been that there’s no “collective right” adjunct to the _Miller_ ruling as antis have steadfastly claimed there was. That nonsense came out of _Tot_, as I tried to show you in that royal smackdown in The Pit a few years back. And as you see fit to mention _my_ name along with “…We need not comply with it” please show some evidence that I have ever said or posted anything in this nature, or retract the statement. The worst thing I’ve said about you in this thread is to attribute to you a position _you’ve_ stated over the years, and I can and _will_ back it up with cites, if necessary. Oh fuck, who am I kidding? From long experience with you, I know you are neither adult enough or have sufficient integrity to retract outrageous conjecture dressed up as a veiled insult disguised as deate. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 3, 2011, 3:04pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/129 "2011-05-03T15:04:59Z")
> [@ExTank](#): > > Oh fuck, who am I kidding? From long experience with you, I know you are neither adult enough or have sufficient integrity to retract outrageous conjecture dressed up as a veiled insult disguised as deate. **ExTank** , I specifically gave everybody a chance to back off here. Personal insults don’t belong in this forum. I’m giving you a formal warning for this one. ---
**Author:** ![CutterJohn](https://avatars.discourse-cdn.com/v4/letter/c/91b2a8/32.png) [@CutterJohn](https://boards.straightdope.com/u/CutterJohn)\ **Post date:** [May 3, 2011, 4:05pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/130 "2011-05-03T16:05:57Z")
I don’t see how any reading of it prevents citizens from owning weapons. Even if you read it as authorizing ownership only because militias are cool, then that still authorizes every day average citizens to own guns, since that is what militias are composed of. So if its “People can own guns, and militias are cool”, then people can own guns, and form militias. If it is “People can own guns because militias are cool”, then people can own guns so they can form militias. Even if it were “People can own guns if they are in a well organized militia” then it would change nothing but require the joining of a well organized militia, which would be easy to set up. Grab a few friends, call yourself the Milwaukee Mauraders or something, put your names on a file and assign each other ranks like Chief Beer Taster and Head Peon. Then go buy your guns. I don’t see how you can read it to say you can’t own a gun, nor what purpose you use that gun for once you own it. The most restriction I can fathom gleaning from that statement is having to be in a militia to legally own a gun., which isn’t that restrictive since a militia is a not a government institution, nor in any way incorporated. For my money its always been essentially “We want people to be able to form private citizen militias, and since a militia without guns is useless, people can own guns so they may arm themselves and form said militias.” ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [May 3, 2011, 5:21pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/131 "2011-05-03T17:21:39Z")
> [@CutterJohn](#): > > I don’t see how any reading of it prevents citizens from owning weapons. Even if you read it as authorizing ownership only because militias are cool, then that still authorizes every day average citizens to own guns, since that is what militias are composed of. > > (snip) > > Even if it were “People can own guns if they are in a well organized militia” then it would change nothing but require the joining of a well organized militia, which would be easy to set up. Grab a few friends, call yourself the Milwaukee Mauraders or something, put your names on a file and assign each other ranks like Chief Beer Taster and Head Peon. Then go buy your guns. But gun owners are not made up of just everyday average citizens. They’re made up of poor, rich, athletic, physically disabled, young, and old. The “why don’t you just form a militia” argument has some troubling issues. 1. First and foremost, when people decide to do exactly that - form a group and call themselves a “militia” - it terrifies Liberals to the point of near-incoherence and invites a government crackdown. And with good cause in some cases, and some (not all) of the so-called “militias” are essentially crazed religious white separatist groups where the leader has eight 10-year old wives (3 of them pregnant) and has written a 3,200-page manifesto claiming the IRS is secretly run by a tribunal of elder god Hastur the Unspeakable, the Loch Ness Monster, and a robotic President Rutherford B. Hayes. 2. Having the mandates of a militia brings on many things which most gun owners do not want. You can expect for a militia to be effective that it must be funded via some means, almost certainly by its members. It must have meeting places, places to practice, standards for equipment, standards for proficiency, etc. It probably, if it wants to remain legal (and not allow convicted felons to handle or use firearms), needs to be intrusive into the criminal and psychological backgrounds of its members. It needs bylaws, and voting, and committees, and logos, and crepe-paper banners, and someone to bring Doritos and A&W Root Beer. 3. Meanwhile, even if a militia _does_ do all of those things, and is a perfect straight-arrow organization with no racist, governmental overthrow, tax protest, drug dealing, or other under or over-tones, it will face the main challenge of the fact that law enforcement tends to react very negatively to anything or anyone which threatens its unionized monopoly. All you have to do to understand the problems of a militia made up of average Americans - the salts of the earth - the stout Yeomen and Yeowomen of this great heartland of ours - in other words, dumbasses of jaw-dropping magnitude - is attend a dispute at a local Homeowner’s Association over which specific genome of grass is allowed to be in lawns, and then think about throwing in a few dozen rifles and handguns to the mix. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 3, 2011, 8:23pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/132 "2011-05-03T20:23:57Z")
Quoth **Abatis** : > [@](#): > > The Constitution is a charter of conferred powers. We the People surrendered limited powers to the government through the Constitution and retained that not surrendered. > > Congress was granted warmaking powers and thus the exclusive power to control the weapons of war follows that. Because of this supremacy, laws that restrict access for the citizenry and the states to the weapons of war are constitutionally legitimate. OK, so then it’d also be all right for the government to restrict access to guns, too, right? Because guns are also weapons of war. ---
**Author:** ![Abatis](https://avatars.discourse-cdn.com/v4/letter/a/d78d45/32.png) [@Abatis](https://boards.straightdope.com/u/Abatis)\ **Post date:** [May 3, 2011, 10:15pm UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/133 "2011-05-03T22:15:21Z")
> [@Chronos](#): > > Quoth **Abatis** :OK, so then it’d also be all right for the government to restrict access to guns, too, right? Because guns are also weapons of war. But the personal arms of the private citizen are not weapons of war and no power to impact them was ever granted to the federal government. Congress has zero legitimate interest in any weapons the citizen owns, especially now (since 1903) because there is no active militia law in force that permits any entity, federal or state to call up the citizens, organize, train and deploy them as militia. When there was a militia law in force there was a legitimate registration system called, “return of militia” which was a census and accounting of the militia and their weapons and accessories. The weapon that the citizen used to fulfill his duty was recorded as to type and caliber for commonality of arms. Since Congress has chosen to not rely on the citizenry by not having an active militia law, they have extinguished any and all interest they could legitimately have, in _ **any** _ arms owned by the citizenry. The power Congress does claim to regulate the personal arms of the private citizen is supposedly grounded in the power to regulate commerce between the states, not in the militia clauses. Why those laws are defended as pertaining to Congress’ power to regulate the militia is one of those inexplicable conditions that only those who endorse usurpation can explain. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 4, 2011, 12:08am UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/134 "2011-05-04T00:08:06Z")
> [@](#): > > But the personal arms of the private citizen are not weapons of war… They’re not? How so? And if Congress has chosen not to have a militia, how is that constitutional? The Second Amendment says right there that militias are essential. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [May 4, 2011, 1:26am UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/135 "2011-05-04T01:26:53Z")
> [@Chronos](#): > > Quoth **Abatis** :OK, so then it’d also be all right for the government to restrict access to guns, too, right? Because guns are also weapons of war. A legitimate and interesting question: where do you draw the line? The only hard guideline we have is Article One, Section Ten, Clause Three of the Constitution, which forbids the states from having “troops” and “ships of war”. As I mentioned upthread, taken with the rest of Section Ten and various provisions of Article One, it seems clear that the Constitution grants a monopoly to the Federal government on the power to wage a foreign war. So at a minimum it could plausibly be construed to reserve to the Federal government strategic weapons systems intended to project military power against a foreign government. I think a rule of thumb might be “what would a state government have no business possessing?” Certainly most would probably say nuclear, biological and chemical weapons, ICBMs, strategic bombers, aircraft carriers and attack submarines, etc. As to what is allowed? Well in the late Eighteenth and through the mid Nineteenth centuries, private citizens could own cannon and large stocks of gun powder. They could even own ships capable of being rapidly equipped to become privateers. We can only speculate what the Founders would say about tanks or attack aircraft, but the modern National Guards possess both. As far as private citizens go, for most practical purposes it probably hinges on the constitutionality of laws restricting access to explosives, since virtually all modern heavy military ordinance either uses explosive warheads or charges of propellant large enough to be considered destructive devices in their own right. I do think that any firearms which it is legal for the Special Weapons and Tactics team of a civil police force to possess ought to be legal (with appropriate oversight) for private citizens. ---
**Author:** ![Abatis](https://avatars.discourse-cdn.com/v4/letter/a/d78d45/32.png) [@Abatis](https://boards.straightdope.com/u/Abatis)\ **Post date:** [May 4, 2011, 1:37am UTC](https://boards.straightdope.com/t/parsing-the-second-amendment/579952/136 "2011-05-04T01:37:37Z")
> [@Chronos](#): > > They’re not? How so? No more than a militia Dragoon’s horse was a weapon of war and under the control of Congress when it was pulling wagon on his farm. When such part of a state’s militia is called into service of the nation then yeah, Congress has power over the arms o the militia . . . Otherwise? Nope! The private citizen and his arms are exempt from Congressional control by two degrees of separation; 1) he’s not enrolled in his state militia and 2), his state’s militia is not in service to the nation. > [@Chronos](#): > > And if Congress has chosen not to have a militia, how is that constitutional? “[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.” SCOTUS, 1886 . . . The armed citizenry FORMED INTO MILITIAS WHEN NECESSARY is a core part of the classical republic the founders established; a “general militia” needs no action of Congress to exist, only to function . . . And\*\*\* that \*\*\*is where government is derelict in their duty. My right to keep and bear arms is not dependent upon the government initiating or continuing any program or structure for the organization and training of the militia\* created by the Constitution\* because again, “the 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”. > [@Chronos](#): > > The Second Amendment says right there that militias are essential. And that term is contained within an inactive, dependent declaratory clause and as such is completely without legal weight. The 2nd Amendment has never been inspected to inform or held to instruct on militia structure, organization or control nor any aspect whatsoever regarding federal or state militia powers. [Previous page](https://boards.straightdope.com/t/parsing-the-second-amendment/579952.md?page=6)