The Straight Dope on the 2nd Amendment

[Razorsharp]

*Originally posted by Hamlet *
**I just get a little testy when people misrepresent the current state of the law. **

"misrepresent the current state of the law.", that has such an ugly connotation, as if one is deliberately trying to deceive.

All I was doing was lending some insight into how the legislatures and judiciaries will circumvent the Constitution for expedience rather than for what is judicious.

As the Court in U.S. v. Farmer said: “so long as the actual crime the defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.”

But, with regards to Lautenberg, the crime the defendant was sentenced to occurred prior to the effective date of the new statute.

The critical question in evaluating an ex post facto claim "is whether the law changes the legal consequences of acts completed before its effective date."Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981).

The Lautenberg Amendment most certainly did change the legal consequences of the act of misdemeanor domenstic violence.

A statute does not violate ex post facto principles where it applies to a crime that “began prior to, but continued after” the statute’s effective date.

Not applicable, for the crime did not continue after the statute’s effective date.

**I’ve tried to point out what I think is the fairly obvious answer to your concern, that contrary to Razorsharp’s and your assertion, the statute created a new crime, and did not inflict additional punishment on a domestic violence conviction. **

Despite all of the window dressing, the Lautenberg Amendment did inflict an additional punishment for the commission of misdemeanor domestic violence.

Prior to the amendment, one did not loose the right to own firearms. After the amendment, those convicted of misdemeanor domestic violence lost the right to own firearms. To say that this is not an additional penalty to the act of misdemeanor domestic violence, but an altogether new law, is convoluted.

Now, to apply an additional penalty to one who both commited an offense and was adjudicated of that offense prior to the new law’s enactment, makes for an ex post facto violation.

Just ask Ol’ Joe, who lost his job as a result of the Lautenberg Amendment, if he had an additional penalty tacked on to his sentence.

[BF]

OliverH wrote:

Wishful thinking does not provide a sound basis for policy

Without a doubt, the most relevant statement you have made re the gun debate. Just about every gun-restriction legislation enacted in the last 30 years has been based on reducing crime. And yet in some states with the strictest gun laws, it has been shown that their crime rates have gone up.

[Jimmy1]

Extank

An most excellent example of legalistic hair-splitting if I ever saw one.

There wasn’t any legal hair-splitting. There wasn’t any legal-ease used in my post. Rather I looked at Federalist 29, the one you think is so dispositive on this issue, and found the author’s method of argumentation, something you evidently decided to ignore. The author is speaking in regards to keeping a militia and not about an individual right to bear arms unrelated to the militia. The author’s entire discussion is in regards to a militia and nothing more.

The author’s method of argumentation begins by stating that it is impractical to impose upon the citizens the regular convening necessary to acquire the degree of perfection. This is impractical so he suggests what he believes to be a better alternative. He proposes the people be properly armed but this is not all. They are to be armed but once again assemble them once or twice a year to aid them in maintaining some degree of perfection that is expected of what? That is expectef of a militia. So even in his alternative the ability to bear arms is in relation to the state’s keeping of a militia and not some individual right to bear arms unrelated to the militia. This is not legal-ease but logical analysis of an argument and there is a difference.

You apparently completely ignored the following paragraph. And haven’t read your Blackstone (Tucker ed.).

I read the following paragraph and there is not much substance there. Just a regurgitation of what has been said before by other people and already sufficiently addressed. Had I thought you presented some new compelling angle but was flawed I would have taken notice of it. But no new angle was presented just a re-hash of what has been stated before and repudiated.

Finally Blackstone is not the “law” in the United States so I could not care less what Blackstone has to say. The U.S. Supreme Court Justices very rarely, and I mean rarely, less than one percent, ever mention Blackstone as a source for interpreting the law.

And neither does the Constitution explicitly state that individuals have the right to possess guns unrelated to a militia, but that does not mean that the people do not have that right.

Razorshapr

Let me say the Second Amendment does to an extent explicitly say possessing guns is related to the militia. The way the words and phrases in the amendment are structured does lend itself to some degree of clarity that the right to bear arms is related to the serving in a militia.

However, this same sentence structure can also lead to the opposite conclusion. Is it explicit? To a degree maybe but not as clear as some would prefer but it is not as murky as you suggest.

Finally just because the Amendment does not preclude an activity does not mean you have it as a right. This is an odd form of construction and interpretation, one the Court or courts do not use. The First Amendment does not explicitly preclude an individual to have the liberty to take as many spouses as they want but few if any would say this proves it is a right. Nor does the First Amendment specifically preclude the taking of human life as a ritual in religious ceremonies but few if any would conclude that since the Amendment does not prohibit it, it therefore must be a right. Just because the Amendments do not preclude a specific action or conduct does not mean it is therefore, a right. This is not how interpretation or construction of the amendments work.

Rather the conduct or action must be found to exist within the “rights” or “language” of the amendments and if they are not found to so exist, then they are not rights guaranteed or protected by the amendment. I would stick to arguing the individual right to bear arms is included in the amendment and not attempt to use a method of interpretation where a positive is yielded by the mere fact of silence by the amendment on the issue.

[ExTank]

Jimmy1: How does your argument sustain itself in light of the doctrine of implied powers? Besides, it falls down upon simle reasonability.

State Militia Officer: Okay Farmer Brown. I see that you have your own rifle, powder horn and bag of lead shot. You’re now in the militia.

Farmer Brown: Great! Proud to be serving my country, Sir.

State Militia Officer: Now, there are a few conditions, provisos and what-not we must clarify before you leave muster with your rifle.

Farmer Brown: Such as?

State Militia Officer: Well, for one, you cannot use your rifle for self defense. Whatsoever.

Farmer Brown: What?!

State Militia Officer: That’s right. Mr. Madison, the Secretary of the Constitutional Convention, didn’t explicitly state that you had the right to keep and bear arms for anything other than serving in the militia.

Farmer Brown: That’s ridiculous!

State Militia Officer: Nope. That’s the Law of The Land. Furthermore, you cannot use your rifle for target practice when you get back home. At all.

Farmer Brown: Then how am I ever going to get any good with it?

State Militia Officer: Not my problem, bub. But I will say this: if you can’t shhot worth a damn, you’ll be on KP duty for the whole muster. I can’t use a man who cannot load quickly, and then aim and fire accurately.

Farmer Brown: That’s not fair!

State Militia Officer: Don’t tell me about it. Secretary Hamilton, the author fo the Implied Powers Doctrine, didn’t explicitly say in Federalist #29 that you have a right as a citizen to bear arms for any purpose other than serving in the militia.

Farmer Brown: Say What!?

State Militia Officer: Yep. Oh, and the last thing: you cannot take your rifle and go hunting with it.

Farmer Brown: But I must! I have no other means of providing meat for my family! We’ll starve if I cannot hunt.

State Militia Officer: Tough luck for you. Now, Private Brown, have you anything else to say?

Farmer Brown: But what about all of that stuff about the people’s right to keep and bear arms?

State Militia Officer: Only as long as you’re part of a well regulated militia.

Farmer Brown: But I am! The militia is the whole body of citizens capable of bearing arms in defense of the nation!

State Militia Officer: Says who?

Farmer Brown: The damned dictionary! Read it!

State Militia Officer: The English used in the Constitution and Bill of Rights isn’t the same English in the dictionary, obviously.

Farmer Brown: So let me get this straight. I have a right to buy a gun.

State Militia Officer: Inasmuch as it’s suitable for service in the militia, yes.

Farmer Brown: I can keep it in my home.

State Militia Officer: Sure. You don’t think we’re going to store your gun for you, do you?

Farmer Brown: But I cannot practice with it, I cannot hunt with it, and I cannot defend myself, my family or my property against thievs and Indians with it.

State Militia Officer: Nope, nope and especially nope.

Farmer Brown: So what can I do with it?

State Militia Officer: Have it ready to hand so that when we call you, you can quickly grab it and come to milita muster. Any other questions?

Farmer Brown: Just two: the first is, what happened to the 9th amendment? The one saying that the enumeration of certain rights are not meant to deny or disparage other retained by the people?

State Militia Officer: There’s nothing in the Constitution or Bill of Rights explicitly stating you have a right to self defense, defense of property or persons, or of the right to hunt. What your other question?
Farmer Brown: How Do I Get Outta This Chicken Shit Outfit?

[Razorsharp]

*Originally posted by OliverH *
**I am sorry that it bothers you that I discuss on an academic level of evidence, but being in academia, that’s what I do.
**

Ha, you mean like this?

Sorry, but I rather think that you confuse your personal interpretation with the actual meaning of the constitution. But it is telling that you care more for wifebeaters than their wives.

[Hamlet]

*Originally posted by Razorsharp *
"misrepresent the current state of the law.", that has such an ugly connotation, as if one is deliberately trying to deceive.

I actually gave you the benefit of the doubt, and figured rather than deliberately trying to deceive, you just didn’t do any research.

*Originally posted by Razorsharp *
But, with regards to Lautenberg, the crime the defendant was sentenced to occurred prior to the effective date of the new statute.

Precisely the opposite. The Lautenberg Amendment created a new crime of possession of a weapon by a person with a prior domestic conviction. As the cases have ruled, anyone who is charged under that crime can only be sentenced for firearm possessions that occur AFTER the statute took effect. If they were sentenced for possessing a firearm BEFORE the statute took effect, that would be a Ex Post Facto violation. As the quote from Farmer clearly indicates, any application of the Lautenberg Amendment would have had to occur after it was enacted.

*Originally posted by Razorsharp *
Not applicable, for the crime did not continue after the statute’s effective date.

This may the basis for your misunderstanding. The crime for which a defendant will be sentenced under the Lautenberg Amendment would be for possessing a firearm, which would have to occur after the effective date of the legislation.

*Originally posted by Razorsharp *
Despite all of the window dressing, the Lautenberg Amendment did inflict an additional punishment for the commission of misdemeanor domestic violence.

No, what it did was regulate who can have firearms. Maybe yet another example will help. If tomorrow a statute goes into effect that says no lawyer can possess a firearm, it would not be “punishment” for the lawyers, it would be regulation of firearms. Hence no Ex Post Facto violation for the lawyers. The same is true for the Lautenberg Amendment. As I’ve quoted before, the mere fact that it takes into account something that happened in the past, does not make it retroactive.

*Originally posted by Razorsharp *
Prior to the amendment, one did not loose the right to own firearms. After the amendment, those convicted of misdemeanor domestic violence lost the right to own firearms. To say that this is not an additional penalty to the act of misdemeanor domestic violence, but an altogether new law, is convoluted.

To absolutely no one’s surprise, Constitutional interpretation can be convoluted. It can’t be boiled down to a simple one sentence statement. Using my prior example again, the lawyers are not being punished, they are being regulated. Now, I know you’ll just say that it is merely semantics, but it’s much more than that. The entire rationale behind the Ex Post Facto clause is to ensure that citizens can tailor their actions to legislation. In these cases, domestic violence misdemeanants are presumed to know that they may no longer possess firearms, and can tailor their actions there to.

*Originally posted by Razorsharp *
Now, to apply an additional penalty to one who both commited an offense and was adjudicated of that offense prior to the new law’s enactment, makes for an ex post facto violation.

As I’ve explained over and over, no it doesn’t. I’m all out of ideas on how to make the point.

*Originally posted by Razorsharp *
**Just ask Ol’ Joe, who lost his job as a result of the Lautenberg Amendment, if he had an additional penalty tacked on to his sentence. **

Any action that Ol’ Joe will be sentenced for will be for an action he takes after the Amendment took effect. He’ll be presumed to know it’s illegal, and will still have done it.

[OliverH]

*Originally posted by Razorsharp *
**Ha, you mean like this? **

Funny. Shows us about how you are reading documents on an issue. Sorry, tearing things out of contexts and looking only at those data you like is not going to give you any credibility.

Better luck next time.

[Razorsharp]

*Originally posted by Hamlet *
**Precisely the opposite. The Lautenberg Amendment created a new crime of possession of a weapon by a person with a prior domestic conviction. **

This is what’s known as Orwellian “newspeak”.

Let’s forget about a “prior” conviction for a moment.

If Ol’ George was charged with domestic violence today, one of the penalties that would result from a conviction would be the lose of his right to own a firearm. The lose of that right is dependent on the conviction, ergo, a penalty for the crime of domestic violence.

To call it “regulation”, instead of a penalty, is callin’ a turd a decoration.

[zwaldd]

*Originally posted by Hamlet *
**The Lautenberg Amendment created a new crime of possession of a weapon by a person with a prior domestic conviction. **

How can you not see that that is just a twisted way of saying that a person’s gun rights were taken away for a prior conviction? I mean, it is plain as day to me that “a new crime of possession of a weapon” was created for those with a prior conviction. You can state that 10 different ways and cite 10 different cases to illustrate it, but it doesn’t change the fact that a person was stripped of a right for a prior conviction. He could just as well have been confined to his house, and since he would only be arrested for leaving his house after the law went into effect that makes it not ex post facto. That is a bold, baldfaced twist.

[Hamlet]

*Originally posted by Razorsharp *
**This is what’s known as Orwellian “newspeak”.

To call it “regulation”, instead of a penalty, is callin’ a turd a decoration. **

Originally posted by zwaldd
That is a bold, baldfaced twist.

And yet another last ditch effort using rhetoric to explain away a legal assertion that you disagree with. Color me surprised. The final example I gave, where legislation was enacted that forbid lawyers having firearms, illustrates what you continue to misconstrue, that the Amendment is regulatory and not punishment. Even if I conceed your point and admit that it may have what appears to be a punitive effect on persons with a prior domestic violence conviction, that does not mean it violates the Ex Post Facto Clause of the U.S. Concstitution. I have run out of different ways to explain it to you. I will just have to bow out and rest assured in the fact that my assertions are founded in legal precedent and have been ruled correct by almost every court that has ever considered this issue, whereas your assetions are . . . well, let’s just say not. I think I’ll sleep easy.

[Razorsharp]

*Originally posted by Hamlet *
** If tomorrow a statute goes into effect that says no lawyer can possess a firearm, it would not be “punishment” for the lawyers, it would be regulation of firearms. Hence no Ex Post Facto violation for the lawyers. The same is true for the Lautenberg Amendment. **

No, your analogy falls short because a law that would forbid lawyers from owning firearms, for no other reason than being a lawyer, would be an “equal protection” violation, and has no relationship to Lautenberg.

The Lautenberg Amendment hinges on the commission of a crime. The retroactive application of the law, with regards to the previous commission of a crime, is an ex post facto violation.

[Jimmy1]

Extank why are you talking about implied powers? Implied powers has no place in this argument. You jump from one issue to a multiple of other issues. The Second Amendment, nor the first five for that matter, do not have anything to do with implied powers in regards or relation to anybody. Rather, the first five amendments, including the Second, are restraints on what the Federal government can do and these amendments do not lend themselves to the existence of implied powers.

The First Amendment, nor the Second, Third, Fourth, or Fifth operate as a source of implied powers but rather function to prohibit state action. None of this is relevant.

The issue is whether or not an individual has a right, via the Second Amendment, to own a gun unrelated to serving in the militia. If this is not true, then the state can prohibit ownership of any and all guns for all non-military individuals.

Finally this argument is not about what an individual who does bear arms in conjunction with serving in the militia may do with his gun at home. The issue is does an individual have a right to bear arms unrelated to the militia. This is the only issue and not whether or not they would be able to hunt with it, or use it in self defense of property or their own life from intruders. Stick to the issue Extank.

[zwaldd]

*Originally posted by Hamlet *
And yet another last ditch effort using rhetoric to explain away a legal assertion that you disagree with.

Did you miss the argument that preceded the rhetoric?

Even if I conceed your point and admit that it may have what appears to be a punitive effect on persons with a prior domestic violence conviction, that does not mean it violates the Ex Post Facto Clause of the U.S. Concstitution.

The point is not that the law has a punitive effect on persons with a prior conviction; a non-ex post facto law would have an effect on those people as well as people with no conviction at all. It’s that the punitive effect is applied only to persons convicted, including those convicted before the law was passed.

[Razorsharp]

*Originally posted by Jimmy1 *
**The issue is whether or not an individual has a right, via the Second Amendment, to own a gun unrelated to serving in the militia. If this is not true, then the state can prohibit ownership of any and all guns for all non-military individuals. **

The people had the right to keep and bear arms prior to the Constitution. The Second Amendment acknowledges the previous existance of that right.

"…the right of the people to keep and bear arms shall not be infringed"

The mentioning of the militia is only secondary to that right. The purpose of the militia was to guarantee the “security of the free state”.

Now that the Constitution has already acknowledged the right of the people to keep and bear arms, can individual states prohibit the ownership of firearms? Let’s refer to the Fourteenth Amendment.

***" No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" ***

[ExTank]

Sorry the irony whooshed you, Jimmy. An apparently weak jab at the way various special interest groups like to interpret the Constitution to their own ends. Like, most “liberal” tend to take an extremely broad view of the 1st amendment, demanding that the general right to free speech be broadly; that the intent certainly implies that it has ramifications beyond mere “speech” or traditional printeing “press[es]”

And yet, let the subject of firearms and the people’s right to keep and bear arms, and suddenly these broad constructionists turn into strict constructionists.

Me, I side with SCOTUS in U.S. vs. Verdugo-Urquidez. When the Constitution says “state,” it means geo-politically delineated governments, and when it says “people,” it means the masses of inhabitants, the citizens, of those states.

“A well regulated militia, being necessary to the security of a free state…”

Not “these states,” “the various states,” or even “the[se] United States.” Just “…a free state…”

“A well regulated, militia…”

"A…"

Main Entry: [2]a
Function: indefinite article
Pronunciation: &, (’)A, Canad 'a
Function: indefinite article
Etymology: Middle English, from Old English An one
Date: before 12th century
1 : — used as a function word before singular nouns when the referent is unspecified <a man overboard> and before number collectives and some numbers <a dozen>

Does anyone want to lay any money that the definition of “a” hasn’t changed in 200 years? Any Bill Clintons reading this? “Define ‘a’ for me if you would, please, Mr. Starr.”

…well…

Main Entry: [3]well
Function: adverb
Inflected Form(s): bet·ter /'be-t&r/; best /'best/
Etymology: Middle English wel, from Old English; akin to Old High German wela well, Old English wyllan to wish —more at WILL
Date: before 12th century
1 a : in a good or proper manner : JUSTLY, RIGHTLY b : satisfactorily with respect to conduct or action <did well in math>
2 : in a kindly or friendly manner <spoke well of your idea>
3 a : with skill or aptitude : EXPERTLY <paints well> b : SATISFACTORILY c : with good appearance or effect : ELEGANTLY <carried himself well>
4 : with careful or close attention : ATTENTIVELY
5 : to a high degree <well deserved the honor> <a well-equipped kitchen> — often used as an intensifier or qualifier <there are… vacancies pretty well all the time —Listener>
6 : FULLY, QUITE <well worth the price>
7 a : in a way appropriate to the facts or circumstances : FITTINGLY, RIGHTLY b : in a prudent manner : SENSIBLY — used with do
8 : in accordance with the occasion or circumstances : with propriety or good reason <cannot well refuse>
9 a : as one could wish : FAVORABLY b : with material success : ADVANTAGEOUSLY <married well>
10 a : EASILY, READILY <could well afford a new car> b : in all likelihood : INDEED <it may well be true>
11 : in a prosperous or affluent manner <he lives well>
12 : to an extent approaching completeness : THOROUGHLY <after being well dried with a sponge>
13 : without doubt or question : CLEARLY <well knew the penalty>
14 : in a familiar manner <knew her well>
15 : to a large extent or degree : CONSIDER ably, far <well over a million>
usage see GOOD

• as well 1 : in addition : ALSO <there were other features as well> 2 : to the same extent or degree : as much <open as well to the poor as to the rich> 3 : with equivalent, comparable, or more favorable effect <might just as well have stayed home>

One (#1, that is) works for me well enough, although I concede that 3a & b, 7, 8, 9 and 12 work just as well.

…regulated…"

Main Entry: reg·u·late
Pronunciation: 're-gy&-"lAt
Function: transitive verb
Inflected Form(s): -lat·ed; -lat·ing
Etymology: Middle English, from Late Latin regulatus, past participle of regulare, from Latin regula rule
Date: 15th century
1 a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning <regulate the industries of a country>
2 : to bring order, method, or uniformity to <regulate one’s habits>
3 : to fix or adjust the time, amount, degree, or rate of <regulate the pressure of a tire>
- reg·u·la·tive /-"lA-tiv/ adjective
- reg·u·la·to·ry /-l&-"tOr-E, -"tor-/ adjective

I think #1b(2) is most appropriate, although I’m sure some would see #1b(1) as just as, if not more so, suitable.

"…militia,…"

Main Entry: mi·li·tia
Pronunciation: m&-'li-sh&
Function: noun
Etymology: Latin, military service, from milit-, miles
Date: circa 1660
1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

I’m going with number 2. Before you get your knickers in a twist, check out Title 10 Armed Forces, Subtitle A General Military Law, Part I Organization And General Military Powers, Chapter 13 The Militia, Section 311 Militia Composition And Classes

I think that this would satisfy all three definitions of militia, yes?

"…being necessary to the security of a free state, the right of the people to keep and bears arms, shall not be infringed."

If, by your assertion, we can keep and bear arms only for service in a militia (and that’s already pretty damned broad), I want your TV, radio, computer and palm pilot so as to prevent mischief not covered under the explicit wording (speech and press) of the 1st Amendment. After all, the 1st only explicitly states that the people have a right to peaceably assemble. Under strict constructionist interpretation, Congress can prohibit the free speech of the people, and ban them from worshipping in any church whatsoever. After all, the 1st only prohibits Congress from making any laws respecting an establishment of religion, and the free exercise thereof. The religious establishments can exercise all they want. The people just can’t.

Go ahead and send me your stuff COD; it’s still a bargain.

However, if we want to broaden our views a tad, then you can keep all of your electronic gee-gaws if I can take my guns and go hunting, target shooting, or defend myself, my family or my property. As long as I don’t misuse my firearms in an unlawful or illegal manner, I’m pretty much free to do with them as I see fit.

Deal?

[Jimmy1]

Extank this argument is not about strict constructionist, textualists, or judicial activists. This is not a discussion about how the constitution is interpreted from these various points of view.

Nor is the discussion about the “use” of a gun. This discussion is not really about whether or not the Second Amendment allows you to hunt with your gun or use it for recreational purposes. Again “uses” of the gun is not the issue but rather this is a red herring, a smoke screen of the real issue which is, drumroll please, the real issue is “posssession” of a gun unrelated to being in the militia via the Second Amendment. This discussion is not about implied rights. This discussion is about whether or not there is an individual right to possess guns unrelated to the militia.

Next you want to argue for a more broadened interpretation. Your support for such a contention? Bad analogies, misinterpretations of the First Amendment, and not a shred of any Framer’s intent that is dispositive on this issue.
Your analogies are no good because the possession of my television, palm pilot, and laptop would be considered property in the Fifth Amendment Due Process Clause and the First Amendment would have absolutely nothing to do with the state’s seizure of them from me. So I am simply confused when you attempt to tie property interests in real property and tangible property into the First Amendment when this amendment has absolutely nothing to do with property interests in real property or tangible property. Not even the most broadened interpretation could lead one to the conclusion the First Amendment protects property interests in real property and tangible property.

Under strict constructionist interpretation, Congress can prohibit the free speech of the people, and ban them from worshipping in any church whatsoever. After all, the 1st only prohibits Congress from making any laws respecting an establishment of religion, and the free exercise thereof. The religious establishments can exercise all they want. The people just can’t.

Uh No. Justice Scalia is a strict constructionist, in other words a textualist, and there is not a Strict Constructionist I know of on this planet, including Scalia, who has interpreted the Free Exercise clause of the First Amendment to be reserved only for those belonging to a religious establishment. The two clauses are separate from each other. The Free Exercise clause has no relation to the Establishment clause in any way other than they are both in the First Amendment. So the Free Exercise clause does protect individuals not belonging to an Established Religion as well as those who do not. I suggest you do some reading on this subject otherwise you will continue to montonously make errors on the subject.

Re-read that portion of the First Amendment again. Congress shall make no law respecting and Establishment of Religion or prohibiting the Free Exercise thereof". Free Exercise of what? What is the “thereof” making reference to? Well “thereof” is referring only to religion. In other words the two clauses would read, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise of religion.” This is of course, as you noted, a strict constructionist interpretation, a textualist interpretation, or in other words a plain reading interpretation. Its necessary implication protects the free exercise of religion for those belonging to an establishment and those not belonging to an establishment.

This is what the Framer, James Madison intended, and can be reviewed in a series of cases and his own writings. Just visit the James Madison website and Rosenberger v. Rector as one case. Madison felt the Establishment clause operated to protect Everyone’s Free Exercise of religion because if the state can’t declare an official religion and force its citizens to be a member, then each individual necessarily is Free to choose to believe in a religion or religions and exercise any religious belief they want. See the concurring opinion of Justice Thomas in Rosenberger v. Rector. So this is, once again, not a very good example to use to lead one to the conclusion that an individual right to bear arms exists in the Second Amendment unrelated to the militia.

So if you can just please stick to the issue of gun possession and ownership and whether the 2nd amendment permits this only as in relation to the militia, and abstain from swaying into tangential territory with red herrings such as focusing upon what “uses” may be permitted, such as using the gun for hunting, then this will flow more smoothly.

Finally a broader interpretation is possible, however, given your reference to Federalist number 29 and how it deals primarily with gun possession and ownership in relation most likely to service in the state militia, the lack of the Framer’s intent to support such a broader interpretation, and the fact the wording and sentence structure does lend itself to either interpretation, then it boils down to you really don’t have much to advocate for such a broader interpretation to be taken of the Second Amendment.

[Jimmy1]

The people had the right to keep and bear arms prior to the Constitution. The Second Amendment acknowledges the previous existance of that right.

It does? Or does it acknowledge this right in relation to serving in a state militia? Isn’t it possible the Framer of the Second Amendment and the Framers decided to specifically “qualify” this right? Such as making this a “right” but only in relation to service in a state militia? After all this makes a great deal of sense. A well regulated militia by the states individual, in which the members of the militia bear arms, is necessary to a free state. The rationale being the formation and creation of state militias would make it much more difficult for the federal government to become tyrannical.

Tell me something Razorsharp. The Framers and Founding Fathers, as well as the citizens of that time, engaged in a lot of conduct prior to the framing of the amendments. Are you really suggesting that if the conduct existed anterior to the creation of the amendments, then the amendments protected this conduct?

The mentioning of the militia is only secondary to that right. The purpose of the militia was to guarantee the “security of the free state”.

That is one possible interpretation Razorsharp. I have not ever expressly denied this as a plausible interpretation. However, I think it is equally possible the structure of the Second Amendment does lead to the conclusion that the right to bear arms is in relation to serving in a state militia.

Now the Federal government cannot deny to the people a right to bear arms as this would preclude the formation of any meaninful militia by the states to check possible tyranny by the Federal government. But notice how this interpretation of the Second Amendment is only binding against the Federal government and in relation to the state militia. In my opinion this is one plausible interpretation.

At the very least the right to bear arms is not absolute and can suffer some reasonable restrictions. Just as the rights of the First, Fourth, Fifth, and Sixth are not absolute.

[OliverH]

*Originally posted by ExTank *
**Sorry the irony whooshed you, Jimmy. An apparently weak jab at the way various special interest groups like to interpret the Constitution to their own ends. Like, most “liberal” tend to take an extremely broad view of the 1st amendment, demanding that the general right to free speech be broadly; that the intent certainly implies that it has ramifications beyond mere “speech” or traditional printeing “press[es]”
**

You are comparing apples and oranges. Free speech is a right not just covered under the First Amendment, but also under the Universal Declaration of Human Rights, which has been ratified by the US (and drafted, to a large degree, by Eleanor Roosevelt).

**
And yet, let the subject of firearms and the people’s right to keep and bear arms, and suddenly these broad constructionists turn into strict constructionists. **

Probably because the right to bear arms has a much more narrow basis than the right to free speech. More narrow translates to less broad.

**
I’m going with number 2. Before you get your knickers in a twist, check out Title 10 Armed Forces, Subtitle A General Military Law, Part I Organization And General Military Powers, Chapter 13 The Militia, Section 311 Militia Composition And Classes

I think that this would satisfy all three definitions of militia, yes?
**

The problem is that a word by word analysis is distorting the meaning. The term ‘militia’ is qualified by the term ‘well regulated’. And the author of that phrase has made quite clear he does NOT consider a general militia to be worthy of the term ‘well regulated’.

**
However, if we want to broaden our views a tad, then you can keep all of your electronic gee-gaws if I can take my guns and go hunting, target shooting, or defend myself, my family or my property. As long as I don’t misuse my firearms in an unlawful or illegal manner, I’m pretty much free to do with them as I see fit.

Deal? **

Your argument is misleading in that you suggest that anyone intends to prohibit you from hunting or target shooting. Since that is not a valid premise, your argument collapses.

[Razorsharp]

*Originally posted by Jimmy1 *
It does? Or does it acknowledge this right in relation to serving in a state militia? Isn’t it possible the Framer of the Second Amendment and the Framers decided to specifically “qualify” this right? Such as making this a “right” but only in relation to service in a state militia?

Well, I suppose it is possible, but if that is what the Framers intended, why didn’t they just do that? To say that the Amendment’s purpose is to qualify the use of firearms only for use in the service of the militia requires you to add something into the Amendment via “interpretation.” Why not just take the Amendment at face-value, and recognize that the FedGov is prohibited from infringing on the right of the people to keep and bear arms whether for use in the militia or for personal use?

**After all this makes a great deal of sense. A well regulated militia by the states individual, in which the members of the militia bear arms, is necessary to a free state. The rationale being the formation and creation of state militias would make it much more difficult for the federal government to become tyrannical. **

Yes, it does make a great deal of sense, but it also makes a great deal of sense for the private individual to have access to firearms for personal protection.

Tell me something Razorsharp. The Framers and Founding Fathers, as well as the citizens of that time, engaged in a lot of conduct prior to the framing of the amendments. Are you really suggesting that if the conduct existed anterior to the creation of the amendments, then the amendments protected this conduct?

Well, I don’t really know what you are getting at. If the Amendment specifically mentions the “conduct”, then I would say that the “conduct” is protected. Wouldn’t you?

**However, I think it is equally possible the structure of the Second Amendment does lead to the conclusion that the right to bear arms is in relation to serving in a state militia. **

Yes, “possible”, but convoluted. See, the people exercized the right to bear arms prior to the existence of any militia.

[Jimmy1]

Yes, “possible”, but convoluted. See, the people exercized the right to bear arms prior to the existence of any militia.

Razorsharp this is indeed true but is it dispositive? The Framers also believed in using public funds to create private schools of a Christian denominational background and in fact did use public funds for the creation of such private schools and so would this make it Constitutionally permissible conduct under the Free Exercise clause?

Or is it possible there is some conduct the Framers’ intended to abate and even eradicate from practice by the formation of the U.S. Constitution?

It was custom for states to give tax benefits and breaks to those belonging to the Christian faith before the U.S. Constitution was composed and ratified. Now the Establishment clause does not “specifically” prohibit such conduct. Now since the Establishment clause did not specifically prohibit this particular type of religious tax break going only to christians, such a ritual existed anterior to the Constitution, then according to your reasoning this must have been Constitutionally permissible. Again this conclusion does not follow because, as I noted before, the Framers desired and intended for some activities to be abated or cease to exist under the operation of the U.S. Constitution. In fact, James Madison repudiated attempts by the Virginia legislature to pass laws giving tax breaks to christians alleging it is an impermissible act by the government. I think you get my point? Just because the conduct existed before the Constitution in and of itself means or proves very little.

So just because some conduct existed anterior to the formation of the U.S. Constitution or persisted afterwards does not mean the U.S. Constitution protects the activity in its entirety without any alteration.

Well, I suppose it is possible, but if that is what the Framers intended, why didn’t they just do that? To say that the Amendment’s purpose is to qualify the use of firearms only for use in the service of the militia requires you to add something into the Amendment via “interpretation.”

Well again you are trying to seek some positive right or an affirmation of Framers intent or approval by “silence”. Silence does not mean affirmation or approval for something. A great example woud be the tax benefits state legislature were known to give to christians. Now the Establishment Clause does not specifically prohibit this conduct but does this make it constitutional? Does the fact the Framers were silent on the issue of tax benefits to Christians mean it was their intent for such a practice to be protected by the Constitution as opposed to prohibited? No this is not true and an interpretation of the Establishment Clause is necessary in order for one to arrive to the conclusion the Establishment Clause would prohibit this paritcular type of tax break. Indeed James Madison was interpreting separation of church and state doctrine and principles when he argued before the Viriginia legislature not to pass any laws giving tax breaks to Christians.

Similarly, when Madison said a law designating a National Day of Prayer was not prohibited by the Establishment Clause he was interpreting this clause and it is once again important to note the Establishment does not specifically prohibit national days of prayers nor does it specifically mention anything about national days of prayer. But according to your reasoning this “silence” by the Establishment clause would serve to prove an affirmation of the Framers’ intent to have a National Day of Prayer deisgnated by the Federal government to be protected. Yet, for some reason, Madison labored in arguing such a practice did not implicate the Establishment and evidently found the “silence=consent or approval” approach to be insufficient in finding constitutionality on a subject.

Nor does the Establishment clause specifically say anything about paying Chaplains with public funds to open each session of Congress with a denominational prayer yet Madison was interpreting the Establishment Clause when he expressed his opinion that such a ritual implicated this provision of the First Amendment. But once again the Establishment clause does not expressly prohibit this type of ritual and relying on your reasoning, since the Establishment clause does not then it reflects an intent amongst the Framers to have this practice protected by the First Amendment. However, Madison once again found this “silence=intent to protect” argument not very persuasive and in fact Madison, being a Framer, is expressing his intention that this ritual most likely does violate the Establishment Clause despite the fact it is not specifically mentioned.

So just because an amendment does not specifically prohibit something does not mean this reflects an intention of the Framers to protect this “something” as a right. Silence in the amendments does not prove Framers’ intent. You seem to think it does but it really does not. You can’t get Framers’ intent or approval by silence in an amendment.

say that the Amendment’s purpose is to qualify the use of firearms only for use in the service of the militia requires you to add something into the Amendment via “interpretation.”

Well you are relying on just as much of an “interpretation” of the Second Amendment as I am. When Madison asserted something was or was not a violation of the Establishment clause he was “interpreting” that particular provision. This is perhaps most evident by the fact the Establishment clause was “silent” on many of the factual scenarios and thus required an interpretation of the Establishment clause to assess if these factual scenarios were permitted or prohibited by the Second Amendment. What an amendment says requires interpretation. I am doing nothing more than what James Madison and countless other Framers did when they asserted something was protected or unprotected by the Constitution, i.e. they were interpreting the Constitution to say X was protected by the Constitution or Y was not. Both of us are interpreting the Second Amendment and this is necessary to understand what it says.
Finally there is very little convolution in my interpretation nor am I adding anything to the amendment. I am not adding anything primarily because I am relying upon the fact that Federalist 29 does in fact support my interpretation of the Second Amendment and hence, reflects an intention of one of the Framers regarding state militias and its relation to gun possession and ownership. I am also relying upon a focus on sentence structure and the placement of the phrases in the Second Amendment and construing the phrases in context of the entire amendment and not in isolation. All of this plausibly leads to the conclusion that the Second Amendment does not really create an individual right to bear arms.

You want to isolate one entire phrase without looking at the context in which it is written. The Second Amendment expresses one thought and not a series of different thoughts. The Second Amendment is one sentence not a series of sentences related to expressing this one thought. The phrase you are focusing on is but one phrase among a few.

The Second Amendment opens by stressing the necessity of a well regulated militia in the security of a free state and then goes to the right of the people to keep and bear arms shall not be infringed. As I noted before a very non-convoluted interpretation would be the right of the people to keep and bear arms is a necessary condition to a well regulated militia. A well regulated militia is a necessary condition to the security of the free state. The author of the Second Amendment contemplates an acknowledgment that an unarmed militia will do very little for the security of a free state, especially against a government that has weapons. Hence, it will be necessary the people who serve in the militia be permitted to bear arms in order to have any deterrent effect against a tyrannical form of government.

Essentially, the federal government then would be prohitibed from enacting a blanket prohibition of the people to bear arms as this would necessarily result in an unarmed militia, something the Second Amendment seeks to ensure is armed state militia’s. However, all of this is in relation to the militia and the Second Amendment does not prohibit the “states” from enacting laws denying to individuals the right to bear arms.

The Second Amendment protects the “states” from the Federal government and it does not protect the “individual” from the action of the states. The entire purpose of the Second Amendment is to permit the states through the use of armed militias to operate as a check on the federal exercise of power and preclude or abate the federal government from becoming too tryannical or tyrannical at all. Hence, the Second Amendment protects the states from any action by the federal government regarding the right to bear arms but it does not protect the individual from the state.

This is position is of course supported by Federalist number 29 and the plain language, meaning, and arrangement of the phrases, taken as a whole and not in isolation, of the Second Amendment.

Simply calling it a “convoluted” interpretation is nothing more than a negative characterization designed with the purpose of making the interpretation sound so awful nobody would want to side with the argument or seek to find any credibility in it. Such tactics, or name calling, is nothing more than fallacious pseudoreasoning and does not address the reasoning of the opposing argument but rather just negatively charactizes it. If this is all that is sufficient to refute the truthfulness or likely truthfulness of an opposing argument, then all I would have to do is claim your interpretation Razorsharp is convoluted. But where would that get me? Logically absolutely nowhere.