Interestingly enough, I’ve read one constitutional scholar’s argument that restrictions on gays entering the military are violations of the 2nd Amendment. His position is that minorities like Blacks or Indians in America, Jews in Germany, or Muslims in Israel or the Soviet Union were historically prohibited or strongly discouraged from joining the army; the right to bear arms for the country was a privilege granted to “good citizens”. He argued that the real intent of the 2nd Amendment was a guarantee of every American’s right to enlist in the defense of their country.
MY two cents:
The constitution grants states the rights to own firearms. It is not an individual right
Even if individual firearm ownership is not a constitutional right, I still believe firearms should remain legal.
Blalron, I’m aware that there is jurisprudence taking that POV, but that’s one of the most ridiculous examples of special pleading I’ve ever run into. Equating “the people” referred to in the Second Amendment with the states means that the First Congress must have been schizoid, since in the very same resolution submitting the Bill of Rights to the states they made reference, in the Tenth Amendment, to “powers not delegated to [the Federal government being] reserved to the States respectively, or to the people.” To drive the point home, in the exact same enactment, your reading suggests that they use the term “the people” in two diametrically opposed senses. Fourth graders making up rules for their club know better than to do that!
I wish the Supreme Court would clearly explicate what the Second Amendment means, but they seem to not want to touch it with a thirty foot pole. I think I could understand why.
If they did declare that it was a right, they would have to outline what specific types of firearms are protected by the constitution and which aren’t. No constitutional right is absolute. You have freedom of speech, but you still can’t shout “fire!” in a crowded theater.
Considering that inaccurate muskets that took a long time to reload was what was in common use back when the Second Amendment was written, its hard to figure out just what guns the founding fathers would have considered protected if they were around today.
Not a job I would want to take on if I were on the Supreme Court.
Your presumption is erroneous. The Fourteenth Amendment doctrine of incorporation of the Bill of Rights is selective, not comprehensive, and in fact several of the amendments comprising the Bill of Rights have never been incorporated, specifically, the Second, Third, and, I believe, the Seventh.
It may be the case that the Second Amendment embodies a fundamental freedom, but you have to make the case for that, not just declare that it is.
Well, the Fifth Circuit engaged in an exhaustive analysis of the individual right to bear arms, and concluded it did exist as a federal constitutional right. Although the declaration is arguably dicta, it’s persuasive, well-researched, and good reading. See U.S. v. Emerson, 270 F.3d 203 (2001).
- Rick
futureman wrote:
So the 5 foot 110 woman doesn’t need a gun to protect herself from the 6 foot 200 pound rapist with a knife? I don’t need to participate in three shooting sports over the weekend which involve breaking clay targets and putting little holes in paper? Who is the average person? The 80 million gun owners in this country? How does the average law-abiding person, who may own one or more guns, infringe on your right to the pursuit of life, liberty and happiness?
Isn’t it, though?
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Analogously, you have a right to firearms, yet, you aren’t allowed to randomly shoot people.
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The people were to act as a military force when needed - it seems clear that modern (in the sense of up to date at any given time) individual arms were what was in mind. Today’s Brown Bess is probably the M16.
Bricker, I have no nuts in this fire. I’m with Howard Dean on this one: the regulation of firearms is and needs to be a local issue.
Oh, and the Constitution doesn’t grant any rights. It recognizes them. It grants (limited) powers to the government. I cringe every time I see ‘The Constitution grants the right…’. Of course, I do a lot of cringing.
When facing enemy (foreign or domestic) of superior strength, in both numbers and hardware, it becomes a matter of tactics.
SenorBeef:
Who / what grants the rights according to you?
Pay her no mind, Marc, she’s just got a bee in her bonnet ‘cause I gave her a good spankin’ over the inherent hypocrisy that resides in both feminism and in their pet cause of “freedom of choice”.
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”
–The Declaration of Independence–
I don’t know, I’d say that the need for a firearm at 9:oo Friday night in Manhatten can be easily justified. Bernard Getz needed one, but he was presecuted by the doctrine of liberalism.
And I think that having to abide by a law designed to soothe my neighbor’s paranoia, violates my persuit of happiness.
The great thing about inalienable rights, no one can “referendum” them away.
Sure they can. It just takes a larger number of votes to do it.
Yet the US Supreme Court’s ruling to the contrary in Miller is the law of the land, ja? That makes your cite not just “arguably” dicta - and dicta, as you and other lawyers have repeatedly and painstakingly explained to us here, don’t actually mean squat.
No. Emerson distinguishes Miller - it doesn’t contradict it.
Emerson is dicta because the conclusion they reached - that there is an individual right to bear arms - was not necessary to their resolution of the case.
- Rick