Yes, yes! By Jove, I think you’ve got it.
Now, for the $64 question: What does the Second Amendment say is that purpose. Be sure to use the words “Militia” and State in your answer.
[Quote]
a fundamental principle of legal interpretation that a law is to be construed in accordance with its intent./Quote]
Or not… While Traditional Intentionalism is a principle of statutory interpretation (and that is what I am using) there is also hightened textualism (which, seems to be what you are trying to use). There are also theories of public choice (ie, best interest of the public in deciding meaning of statute) and the Law & Economics school says (efficiency over everything else, Kaldor-Hicks equation, etc).
There is more than one way to deal with interpreting law (and that’s not even mentioning Heydon’s Case and Scalia’s view).
Oh, and yes, I am in the middle of Law School Finals ;).
So, do all the individual right interpretation advocates agree that it must include nuclear weapons, tanks, Stinger Missiles, gas generators, land mines, hand grenades, bombs, howitzers, beehive rounds, and every other military weapon ever built?
If it doesn’t, why doesn’t it? And if it does, do you really want everyone armed like that, in your hometown?
Tris
It was the intention that the people be armed to prevent any attempts at tyrany. If that required ‘militia’ or just a mob, that wouldn’t matter. The 'state’s may also join in, but it isn’t required.
There, happy? 
Even though it is controversal, I do believe it is only a matter of time before the 14th Amendment brings the 2nd Amendment to the states (this by no means indicates that the federal government was not bestowing an individual right… thus the amendment meant that the federal government could not eliminate the right of people to have arms, but the states could, and can until the 14th, takes the 2nd with it. The federal government still cannot deny the people their individual right; it is yet to see if the states can legally deny that right).
Because no right is total! Free speech can be reduced, freedom from unreasonable searches and seizures can be curtailed, why couldn’t an individual right to own guns?
Oooh, sorry. But the correct answer involves both “Militia” and “State.” And I so dearly though that we were making progress when you stated that the introductory clause expressed the purpose of the statute. Now, work on showing how that purpose is embodied in that clause, as opposed to a different clause entirely.
Oh… added (damn no edit tages being available on this forum):
If the federal government ever invalidated state militias (and by being able to nationalize state militias, it kind of comes close), the people would still be armed to prevent a bulwark against the federal government.
Also, find me a place in the Constitution where the word “State” is used to mean anything other than, e.g., Virginia or Ohio. Then explain how when they used “State” in the Second Amendment, they really meant something else.
Not the purpose, but the explination. They are different things. It is not a protection of state militias against federal laws, but a protection of people being able to own arms against federal laws.
After all, remember the explination (or even the purpose) is dicta in a court case for the holding. Analogize that to dependant and independant clauses.
Closer. We’re making progress. What you meant to say, I’m sure, was that the states would still be armed (through the people), if they chose, as a bulwark against the feds. See, it’s that pesky “State” thing again in the purpose clause.
Whoever said it meant anything else? The question is did they mean that to bestow a state right? It really doesn’t seem likely. It looks as they gave an explination as to why they are allowing people to have guns, the main one being that the people who can own guns (who also happen to be the militia) can defend themselves from federal intrusion.
Again, very close. It is a combination of both. Because they wanted to protect the states from federal military power, they protected individuals from federal infringements on the right to bear arms when those infringements would inhibit the state’s ability to maintain a militia.
Wrong. To the extent that a purpose is necessary to the outcome of the case, it cannot be dicta.
No. They mean to protect a particular “State” right (the militia) through a limitation on the power of the federal government to act on the (state-derived) rights of individual citizens. The former right informs and defines the latter, despite the best efforts of Charlton Heston to ignore the former.
Nope. The people would be armed against the bulwark of the federal government. See, it’s that pesky “People” thing again in the independant clause of the amendment.
The states could be tyrannical too, but it would be impossible to say the people could be armed also against the threat of a tyrannical state (that would be a violation of Federalism). Since the Bill of Rights was only put in to appease a few states in order for ratification, I can see them placing the explination clause to appease the states.
They easily could have written, the right of the STATE to bear arms shall not be infringed in order to protect state militias, but they said the right of the PEOPLE to bear arms shall not be infringed. Why say ‘people’ when they mean ‘state’, councellor?
But the dependant clause is NOT necessary for the independant clause.
I doubt it. It seems very much explanitory and not saying we are writing this simply to protect militias. If they wanted to protect state militias, it would be easy to give the states the right to bear arms. But they said the people have the right to bear arms, not the states. Why didn’t they say ‘the right of the states to have independant militias shall not be infringed’?
The militia is a state right, and does not involve individual rights.
WHY would the government seek to protect a state right by explicitly protectly an individual right. That doesn’t make sense. If they wanted to protect a state right, why not do so?
I ask, sir, what is the militia? It is the whole people, except for few public officials.
(George Mason)
But even assuming the 2nd Amendment absolutely does not confer upon individuals the right to bear arms, states can and do confer that right as they see fit, no? I mean, it’s not as if though the US Constitution imposes a ‘maximum’ set of rights, it grants a minimal set of rights, which the individual states are free to expand upon (assuming no conflict with Federal laws).
But I am no lawyer.
Which is correct?
1st : “the right of the PEOPLE peaceably to assemble”
2nd: "the right of the PEOPLE to keep and bear arms, shall not be infringed. "
4th : "The right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, "
9th : "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the PEOPLE ".
10th: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the PEOPLE "
We the PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
“The House of Representatives shall be composed of Members chosen every second Year by the PEOPLE of the several States,”
"to “be transmitted to the several Legislatures in order to be submitted to a convention of delegates chosen in each State by the PEOPLE thereof”
or… how does YOUR copy of the Constitution read?
1st : “the right of the STATES peaceably to assemble”
2nd: "the right of the STATES to keep and bear arms, shall not be infringed. "
4th : "The right of the STATES to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, "
9th : "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the STATES ".
10th: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the STATES "
We the STATES of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
“The House of Representatives shall be composed of Members chosen every second Year by the STATES of the several States,”
"to “be transmitted to the several Legislatures in order to be submitted to a convention of delegates chosen in each State by the STATES thereof”
The Second Amendment does not GIVE us the right to bear arms, it GUANANTEES us the right to bear arms.
The Constitution does not “GRANT” any rights in the Bill of Rights.
Those rights are endowed by our creator, and are “GUARANTEED” by the Constutition, not GRANTED by the Constitution.
Some people erroneously think that of our “Constitutional rights,” as if the government had conferred rights upon us by adopting the Constitution.
This is a symptom of a common misconception about the source of our American rights. If we aren’t clear about how we came to possess them, we won’t be able to effectively preserve our own rights, or champion the rights of others.
Thus, no one, no gun law, no state, no federal government, no president, not even an ammendment to the Constitution itself can take away the Right to Bear Arms which is something that is unalienable and GIVEN to us by the creator.
The government cannot take away something which it has not given.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men…”
If God indeed gives them to us, they are in fact “unalienable” as claimed in the Declaration of Independence. This means that no power other than God Himself can take them away from us. They can be ignored by rogue governments or other criminals, but that doesn’t change the fact that the rights are an integral part of us by virtue of our humanity.
But aren’t Amendments something other then ‘God given’? Maybe I am getting lost in the lingo, but it doesn’t make sense that people believed we had an unalienable right to not consume alcohol or Divine Prividence has granted us Presidential term limits.
I thought our unalienable rights are Life, LIberty, aand the persuit of Happiness (which for me, means guns, but…) The rest of our laws and whatnot were supposedly around to enable us to achieve/persue our ‘rights’.