The main clause is OBVIOUSLY ‘the right to bear arms shall not be infringed’. It is an independant clause, while the clause you are stating is a dependant clause.
Seeing as the Bill of Rights was a guarentor of individual rights (check Amendment 1, 3, 4, 5, etc), the only way to read the 2nd Amendment is that it guarentee’s individuals to own guns.
Any attempts to say it is to prevent Federal government to intrude on the states’ right to a militia, has no concept of American history. There was a reason the 14th Amendment was required to apply the Bill of Rights to the states, because the Amendments were to prevent the Federal Government from doing things to the people. When writing the amendment, the founders had NO conception that the federal government would be able to prohibit something the states decide. The only time that was decided was after the Civil War.
This whole idea that the 2nd Amendment is to prevent the government from preventing the states from setting up militias is utterly foolish and a total disregard for American history.
This touches on something I’ve wondered about, actually. If the First Amendment is intended to guarantee people their absolute and inalienable natural rights, and the Second Amendment is meant merely to stop the federal government from encroaching on the states’ “rights,” then why is the First Amendment phrased as “Congress shall make no law…” and the Second as “…the right of the people to keep and bear arms shall not be infringed?” It sounds there like the First Amendment is the one that specifically only restricts the federal government, and the Second Amendment is the one that’s guaranteeing a general right that can’t be infringed by any entity.
I mean, I’m not actually arguing that the right to own guns is more fundamental than the right to free speech, or anything; I’m just honestly puzzled by it. I mean, surely it wouldn’t be constitutional for the state of Louisiana to pass a law making it illegal for me to criticize the governor, right? But the First Amendment pretty clearly addresses Congress and only Congress without saying anything about states, so where does that come from?
It comes from the idea that the Bill of Rights as a whole was seen as a limitation on what the federal government could do, not on what the states could do. Elsewhere there is specific language about what states can’t do: pass bills of attainder, ex post fact laws, etc. Absent that language, the Constitution is a charter for the federal government, any limiting language limits that government.
It doesn’t specifically say states, but there was no indication that the states had any reason to disarm the citizens or ever would. The federal government was the potential tyrant, and the fear was it would disarm the cirizenry to keep them subjugated.
I missed this part of your question: the reason the Bill of Rights applies to state governments now is because of something called the “incorporation doctrine”: certain rights “fundamental to ordered liberty” were incorporated in the 14th Amendment’s due process clause when that Amendment was passed. Prior to that you had no 1st Amendment protection from the state, no 6th Amendment right to counsel in state proceedings (and didn’t until 1963), no right to be protected by the 4th Amendment from unreasonable search and seizure, etc. etc.
So? Laws are to be interpreted and applied according top their original intent. In this case, the law explicitly states its intent: To protect the state militia.
You may wish to get out a copy of the Constitution and reread it, amigo. In fact, the Bill of Rights is almost exclusively about the government and limitations of its power. You know, Congress shall make no law and all that stuff?
Damn liberal activists, always trying to read stuff into or out of the Constitution just to suit their political agendas. :rolleyes:
It’s right there, ISiddiqui. First clause: Militia and State. Stop reading selectively.
And your (selective) sense of history authorizes you to disregard the text of the amendment?
But the order of clauses has nothing to do with which is dependent, and which is independent. The nominative phrase that is paired with the predicate “shall not be infringed” is " the right of the people to keep and bear arms".
Nevertheless, Lib, it is a fundamental principle of legal interpretation that a law is to be construed in accordance with its intent. The express intent of the Second Amendment is to protect the state militias. Accordingly, the intent of the amendment is not violated if the states themselves restrict the right to bear arms, or if the federal government restricts the right to bear arms in a way that does not affect the state militias. That would not be the case if the amendment read “The ability to shoot stuff being necessary to the freedom of individuals, the right of the people to keep and bear arms shall not be infringed.”
One could, of course, take the position that the absolute nature of the second phrase of the actual amendment, viewed in isolation from the first, means that the substantive right is also absolute. But we also know that the other amendments in the Bill of Rights are rather less than absolute even though they are often couched in absolute language. You won’t get very far fighting a child pornography charge with the argument that it’s protected by the right to a free press because, in fact, the First Amendment was not intended to protect child pornography.
And if it is entirely to protect the right of private ownership of arms, it cannot, by its own language be limited to some arms, or some owners. It must include letting every man jack of us tote machine guns, and ride around in tanks. Stingers all around! And where are my nukes? Hey, I never signed any Geneva Accords, so I want my anthrax, too!
I feel this would be detrimental to the general welfare of the people for whom this document was originally written, because the facts over which it is meant to provide governance have changed dramatically. Others feel that daily shootouts in the streets, and armed resistance against the peaceful prosecution of felons are worth risking everything for, because they want to stand and die in their doorways, when the feds come to get them. I think there must be a better way.
The second amendment says that the right of the people to keep and bear arms shall not be infringed. Not “the militia”, not “members of the militia”…the people. Last time I checked, there are no American citizens that are not also people.
Considering the armed rebellion that took place shortly before the drafting of the Constitution, it is evident that the drafters had substantial reason to guarantee that weapons would remain in the hands of the people. They expressed this notion time and time again, as Susanann pointed out.
Also…
That’s from the original post. I just want to point out that that is a false statement. The US code states that (paraphrasing) all males between the ages of 17 and 45 are members of the militia. Therefore, that group would be protected by the second amendment even if it did only protect the rights of militia members.
States have cosovereignty with the federal government. The federal government has supremacy but the states have reserved powers. Determining the boundaries and overlap of the states and the federal goverment is an ongoing process. “State’s rights” is a shorthand way of raising this process.
Obviously, the race issue and civil rights have permanently tainted “state’s rights” as a concept, poisioning the use of the phrase in important issues like the federal government usurping an individual state’s police powers. The State of California versus the DEA, etc…
Hooray! No guns for girls! And gimme that shotgun, grandpa!
More seriously, however, your analysis is flawed. Once again, you’ve omitted a crucial word. In this case the word you’ve omitted is “unorganized.” As in, all males between the ages of 17 and 45 are designated as members of the “unorganized militia.”
Compare and contrast:[list=1]
[li]“well regulated Militia”[/li][li]“unorganized militia”[/li][/list=1]
Beagle: Succinctly stated, and a nice identification of the problem with the term “state’s rights.” I personally wish schools would start teaching it in terms of federalism, since it avoids the racial baggage and more neatly captures the give-and-take nature of the relationship between the states and the national entity to which they’ve ceded portions of their sovereignty.
Ah, so the founding fathers’ intent was for the militia to fight by kicking and spitting upon their enemies? Hey, I’m sure that would have worked in the American Revolution, had the colonists not been armed as their government’s army was. Or maybe the unorganized militia was meant to be the human shield division.
And I’m curious as to whether you read the section of the US code I cited, as it does provide for female militia members as well, as well as a wider ranger of male members than in my paraphrased section.
No, the intent was to prevent the federal government from restricting the ability of the state militias to arm themselves. Hence, the introductory clause.
You should read your own links. The statute says girls are only in the militia if they’re in the National Guard. Fork over the .45, baby.
By your silence on the matter, may I assume you are ready to say give up on the “unorganized” point?
To debate guns and state’s rights without debating guns would go something like this:
The Second Amendment establishes an individual (some say collective, Miller is not a great case, anyway) right to possess a firearm as regulated and interpreted (but there’s the ultimate issue, how) by the state and by the federal governments and courts.
Whether a particular arm constitutes an arm as per the Second Amendment is unclear. Miller’s ruling / dicta (that shotguns are not military weapons) is wrong, for example. Trench guns, security, close combat.But, Miller dealt with sawed off shotguns.
Each individual state can enact criminal firearms restrictions, limits on possession, even total bans.
For example, in Florida we have a 10-20-life statute for the possession or use of a firearm in the commission of a crime. No problem, traditional police power. Other states have bans or licensing laws.
The feds. Gun Free School Zones Act, problem. There is no general federal police power. The federal government has based some of its gun legislation on the Commerce Clause (Article I, Section 8, enumerated powers of Congress) The Gun Free School Zones Act was ruled unconstitutional (Lopez). Many other laws based on the Commerce Clause have been ruled constitutional, however.
It is safe to say that the law is fluid in this area. The SCOTUS will probably get involved soon.
Nitpick: Miller did not rule that shotguns were not military weapons. It ruled that the trial court should not have granted the defendant’s motion to dismiss because he had not provided any evidence that the shotgun bore a reasonable relationship to militia service.
Particularly interesting is that Miller makes it the defendant’s burden to show the gun is protected–i.e., the Second Amendment in some ways acts as an affirmative defense. But what’s absolutely crucial is that Miller conclusively establishes that the introductory “Militia” clause has a substantive effect on the scope of the guarantee in the second clause. Thus, whatever else the introductory clause is, it is most certainly not a nullity.
Actually, the founders intent was that there be no standing army. They believed that a standing army was a major threat to freedom. Their solution was an attempt to make a standing army unnecessary by guranteeing the existence (or at least right of existence) of the various state militias.
This solution has clearly failed. But so far, at least, our standing military presents no threat to our freedoms.
There was never any intent to gurantee an individual right to bear arms outside of the context of the militia. But then again, it probably never occurred to them that pervasive ownership of firearms would turn into empowerment of the criminal class more than the citizenry in some parts of the US.
Utterly ridiculousness. Who would threaten the state militias? The Federal Government?! HA! There was no contemplation that the Federal government could EVER infringe on those rights at all. It took a Civil War to establish that. The Constitution spells out the powers of the federal government elsewhere, why would they need an amendment right afterwards (which were only included by certain people wanted individual rights protected, and the drafters put it in to get the document ratified) that prohibited a federal power against the states? Obviously, looking at the Constitution, the federal government has no right to do so. Also seeing as the Bill of Rights was only added after calls for ‘individual rights’ to be enumerated in the Constitution, to state the 2nd Amendment was to protect a states’ right to militia is utterly ridiculous.
The only people NOT in the militia were women and slaves, which in that time (of course) could not be allowed to own guns. Of course they couldn’t vote either. It is telling that everyone that had political rights was considered in the ‘militia’.
The introductory clause is nothing more than description, a ‘why are we doing this’.
So, are you meaning to tell me that the law prohibiting yelling fire in a theater is unconstitutional because amendments can’t be limited? After all it says ‘no law’.