Not really. We’re not debating which types of arms are protected but whether the protection is afforded to the individual or to a militia.
Did you miss the part where Heller settled that question?
That’s true, but you should understand that “legislative intent” is a term of art that, depending on what school of interpretation you subscribe to in matters of constitutional law, is not the sort of intent you’re talking about when reading the constitution.
In that context, ‘intent’ is more likely to mean less the original intent of the authors and more intent that can be implied from the document as a whole. For example, take privacy rights. No where in the constitution will find a right to privacy. However such a right is considered penumbral to various other rights that are explicitly laid out. This is more the type of intent you look for with the constitution.
No disagreement, but that opened a new vein of inquiry:
Was the intent of the Bill of Rights (or the Constitution as a whole) to prevent trespasses against a person by the government by instituting divisions and limits to the power of the government it was creating? If not, what was the intent? (I really hope it wasn’t kinky sex games. But with Ben Franklin involved, you never know. 
)
Also, I know very few people who would mind so much that you grant additional protections based on the intent of the Constitution versus taking something that’s stated away.
And who but the POTUS gets to decide when the militia are called into the service of the United States?
Congress does:
Even then, how does the “unorganized militia” fit into this? It’s defined as all males between 17 and 45 who are NOT in the National Guard or Naval Militia (whatever that is).
I’m a member of the unorganized militia; shouldn’t my right to bear arms not be infringed, even if it’s not considered an individual right independent of the militia?
Since the stated purpose of the Bill of Rights was to enshrine certain protections against intrusion by the central govt, I think you can only contravene any rights explicitly granted in the most extraordinary situations. One situation that comes to mind might be if, due to the passage of time, some irreconcilable conflict were to evolve between 2 provisions that didn’t exist originally. I’m sure you can probably come up with other situations too.
But whatever the case, the idea is that it would be a very high bar. That would be in contrast to the opposite situation where, as you’ve observed, additional protections are conjured up from what already exists.
That’s not to say however that rights don’t or can’t come with restrictions - sometimes onerous restrictions. And at some point, regulation of a right can effectively nullify it. I know that here in NJ, you feel like a trained seal at Sea World by the time you jump through all the hoops you need to buy a hand gun. I don’t know that I call the regulations onerous just yet, but you do get the feeling that the state would be perfectly happy to regulate legal firearms out of existence.
And is Congress state or federal?
I would agree that this is a reasoned judicial construction. Obviously paper and the transmission of information is protected under this amendment. It’s similar to saying, “Okay, you can keep and bear arms, but we are outlawing ammunition.”
But, internet blogs? Maybe they are sufficiently distinct from quill pen and paper such that they aren’t protected. The text of the amendment surely doesn’t protect them.
There’s also a rule of construction that judges use (when it suits them) that when a statute is unambiguous on its face, then it is improper to look at legislative intent. It says what it says. But then we run into absurd results like quill pens but no paper.
Or some guy has a private meeting in the oval office and hauls a 55 gallon drum full on ink in to dump on the President and claims you can’t stop him because the amendment says “at all times.”
IOW, both schools of thought have their pros and cons, but I think the proper judicial method is somewhere in the middle. But as far as the 2nd amendment, I don’t think you can ignore the bare “the right of the people to keep and bear arms shall not be infringed” even if it contains a prefatory, dependent, and explanatory clause. There is certainly an individual rights component to it, but that also doesn’t mean I can “bear” a machine gun in an audience with the President.
But construction of the amendment sheds light on that. In 8th grade English class we were taught dependent and independent clauses. Dependent clauses are merely explanatory and can be dropped without changing the meaning of the sentence. What if the amendment read:
“Putting down slave insurrections, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed”
Would we still have the RKBA? I say absolutely yes. The dependent clause is an explanation for the right, but the right doesn’t disappear simply because the reason behind it is no longer there. That’s the plain text argument.
The other side wants to delve into the “intent” of the framers and try to show that, regardless of the text, the framers only meant for militia members to carry arms. And further, National Guard members are the only militia today.
I contend that such exploration is unnecessary by the plain text of the amendment. If it was for militia only, and Joe Six Pack isn’t a militia member, then another amendment can remove the right, but we don’t go behind the plain text to come up with an unknowable “intent” when the language is clear.
When there is an ambiguity like “equal protection under the law” we have to dig deeper.
Federal. But not POTUS. And, of course, Congress is made up of representatives of individual states, the Presidency is not.
Legally speaking, that’s not strictly true. All men aged 17 through 45 not in the National Guard or Naval Militia (whatever that is) are part of what’s called the “unorganized militia”.
10 USC § 311 - Militia: composition and classes
Current through Pub. L. 113-31. (See Public Laws for the current Congress.)
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
That’s why I say look at the intent. Was it the transmission of information and opinion freely? Then blogs are covered. Was it to have the ability to draw mustaches on photos? Then blogs aren’t covered.
See, the right to bear arms should allow the man the ability to carry everywhere (assume we are all tree hugging hippies and no one will whip out a pistol and shoot the president). Wandering into the president’s office with a gun? No problem.
(Now add back in real people) Brandishing? That’s intimidation. Pointing? That’s threatening/menacing. Shooting? That’s attempted murder or actual murder. See, all of that is fine, in my opinion.
Requiring that you lock your guns up when not directly in possession? Spiffy. Background checks (with mental health check and person-to-person sales requiring them too)? Spiffy. Restricting for people convicted of violent crime? Spiffy. Making a person criminally liable if his gun is stolen and he doesn’t report it and it commits a crime? Spiffy. Criminal liability if your crazy son steals your guns and shoots up anything? Spiffy.
Taking them away? No. The overwhelming majority of gun owners in this country are law abiding, aren’t crazy, and are safe with guns. They shouldn’t get punished because some people aren’t that. I have a problem with the minority ruining it for the majority.
What you are saying (and I have said in the past) is that the second amendment might imply two rights. The individual right to effective self defense and a state right to maintain a militia. Consider that the federal government also has the right to discipline (train) the miltia.
This might mean that the federal government can’infringe on a state’s right to arm their militias with arms (including things like tanks, etc.) and that similarly, the states cannot cripple their militia for federal service by making them unfamiliar with the sort of arms that the federal government want them to be familiar with.
I personally think that the defense of tyranny argument doesn’t win a lot of converts from the middle of the road folks because we have always seemed to make democracy work without the armed revolution. Sure democracy was corrupted in the south during segregation and again these days with the influence of money in politics, gerrymandering and restrictions on voter access (like voter ID laws) but it always rights itself eventually, the corruption never seems to spin out of control and infect the entire system.
:eek::dubious:
I think its clear that the federal government can in fact regulate firearms. I can point to a dozen federal laws that regulate firearms. The NFA even restricts your ability to own a firearm based on the length of the barrel. This has all been subjected to judicial scrutiny and there is no constitutional issue with the notion that the federal government can pass federal laws regulating firearms.
Thom Hartmann is left, perhaps far-left political columnist. His “article” was debunked by a fairly well regarded historian.
http://www.theroot.com/articles/politics/2013/01/second_amendment_slave_control_not_the_aim.html
Almost three months to come up with a reply since the last post, and that’s what you got?
You are arguing form a position that is at odds with many fundamental constitutional principles.
I guess a civics lesson is in order.
One wouldn’t expect to find any notification of the existence of that right in the Constitution because the Constitution enumerates the powers of government not the rights of the people (as they are innumerable).
We the People granted to government specific, limited powers that are to be exercised by government to perform specific, limited duties we have assigned to it through the Constitution.
A principle that is inextricably meshed with conferred powers is retained rights . . . All powers that have not been conferred to government are retained by the people (and deemed “rights” – exceptions of powers never granted).
These intertwined principles of conferred powers and retained rights is where the insurrectionist theory comes from.
Government exercises those powers granted to it only with the consent of the governed. When government exceeds those powers granted to it and especially when it intrudes on and injures the rights of the people, the people possess the right (not because it is recognized by government but because they never surrendered it) to rescind their consent to be governed and reclaim those powers once transferred through the social compact. (with violence if necessary).
You can call this nonsense and inapplicable in our modern world but the framers, by enacting the 2nd Amendment, sought to preserve their vision of each government soldier being outnumbered (opposed was the word Madison used) by 17-20 armed citizens.
That ratio is spot-on today (actually it has widened a bit*) so the “insurrectionist theory” is alive and well . . .
*310,000,000 total population, 2.9 million active and reserve military, 75 million citizens, “with arms in their hands” = 25 armed citizens for each member of the standing army.
The Amendment has a dependent absolute clause and and independent restrictive clause . . . What is so difficult about that?
Yes a few early 1800’s state cases deciding issues relating to their constitutions have fallen on the “collective right” side. Bliss represents the road not taken.
If you want to read an Antebellum state case that directly informs on gun rights on the federal level, read Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840). It is the primer (@ pg 158) for reading US v Miller, 307 U.S. 174, (1939).
As far as federal courts go, the “collective right” (by way of the “militia right” and “state’s right” interpretations of the 2nd Amendment) did not appear until 1942 — Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) and U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) .
SCOTUS has never embraced any aspect of the “collective right” interpretation; Heller’s primary action was to invalidate those lower federal court “collective right” holdings and slap the Districts and Circuits back into Constitutional reality.
The Heller dissent’s state that the debate is over whether the 2nd secures an individual or “collective” right and in fact stipulate that the individual right theory is the interpretation represented in SCOTUS precedent on the 2nd Amendment:
[INDENT]JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
“The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.”
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting. . . .
"In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
INDENT The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting). . . . "[/INDENT][/INDENT]
To go back to the OP and the assertion that the “insurrectionary theory” is “nonsense”: A lot of people claim that whether or not that was the original intention, it’s irrelevant today- that democracy and standing armies get along just fine, and that in any case a citizen insurrection would have no chance against a modern army. Yes, the USA has had large standing military forces since the end of WW2 and we’re still a democracy. So do other democratic nations. But I dispute that worries about standing armies are archaic.
There are plenty of places in the world today where standing armies are the bane of democracy: countries which have had a revolving door of presidents-for-life (backed by the military) alternating with military juntas for decades, like Pakistan or Argentina, or the cesspool of dictatorship much of Africa is. Look at much of Latin America and the very cliche’ of “generales”. Look at Costa Rica, which banned standing armies in 1949 and has enjoyed peace and prosperity since. Maybe a country can have a standing army and still be a democracy, but that’s a bit like saying a country can have a king and still be free- it doesn’t mean monarchy is a good idea.
This is where it gets sticky for the various collective right advocates. Either they argue that the 2nd acts to enlarge the powers of Congress vis-à-vis its constitutional militia regulatory authority, or it is a right of the state to control its militia, by repelling federal interference in their militia powers. This is embraced by anti-gunners to argue for state controls on the possession and use of arms by that state’s citizens.
Yes, each theory negates the other and when one examines the legal record of courts deciding disputes between the states and federal government over militia, the 2nd Amendment is conspicuously absent from any party’s arguments and is never presented as a remedy for any conflict between the feds and a state.
In the end the “state’s right” theory fails as well.
The effect of federal preemption of state militia powers (begun in 1820) has proven the “state’s right” model to be merely a slick 20th Century legal fabrication.
The “state’s right” model was hatched and argued with only one intent; to defeat and dismiss claims of an individual rights injury in the courts of the United States. It held sway for 66 years until Heller threw it out on its ear.