But again, militia is being taken as a singular noun- a group of people, or the organization they comprise- and then pluralized on top of that to miliitias, to refer to multiple such groups. No such construction was ever used in the latter 18th century. Militia was already a plural noun, and the unit of which it was a plural were the armed individuals who were eligible to be mustered. If you were to paraphrase the Second Amendment today, it would be something like “A well practiced armed population, being necessary to the security of a free State, the right of the people to own and carry Arms, shall not be infringed.”
To be sure the Second Amendment is worded so strangely that I wish I could go back in time and quiz the drafters on exactly what they meant and why they worded it that way. But the drift in how words and phrases have changed in meaning in the last 200+years has to be taken into account.
What do you base this on? And do you think that states can and should also be able to ban or abridge the other rights in the Constitution, or the various Amendments, or just wrt the 2nd, which you think is a special case?
Correct - the Ninth does not confer any specific rights, and it does not give the power to determine new rights to the State. The Tenth gives all powers that are not explicitly assigned to the federal government to the states, or the people. The power to determine what are the new, un-enumerated rights that the Ninth says possibly exist is not assigned to the government. Therefore, the power to decide what are the un-enumerated rights the Ninth mentions belong to the states or the people.
So any Supreme Court decision that says “such and such a right proceeds from the Ninth Amendment” is wrong by definition.
Do you believe that only groups of people have the right to be secure against unreasonable searches and seizures? So the government, if they wanted to, could search any individual they liked for any reason, but if he or she joined a group, the government could not?
It seems there was a partisan split on the court in the early 1960’s during the Warren court. At the end of his career chief justice Warren was asked what he felt was the most important case during his tenure. Mind you that included things like Brown v Board of Education. His answer was Baker v Carr which dealt with redistricting in Tennessee.
The case so split the court that it ultimately claimed two supreme court justices (literally). One had a nervous breakdown (Whittaker…the swing vote) and left the court and one had a serious stroke also forcing him off the court (the one with the stroke said it was this case that did him in).
Two of the characters on the court were justices Douglas and Frankfurter who were diametrically opposed, hated each other with a passion and openly hostile towards each other (Douglas would read a book in court when Frankfurter was talking) and apparently both were complete dicks in general.
The amendments limit the Federal government. Just reading the first amendments, some issues are with the individual, some with states. The 2nd seems to limit the Federal government in dealing with local security issues. With this brief text, it seems states can limit guns within the state, or ban them from criminals, as we do now. No federal law on guns is implied.
Strange or not it is the only place in the constitution where they provided a rationale for the amendment. The Heller decision chose to effectively dismiss that part.
The Preamble provides a rationale for the whole document, for whatever a rationale is worth in a legal document; I don’t see that it should make any material difference, one way or another.
In any case, the militia rationale of the Second Amendment has not been dismissed. It’s just not specifically necessary for every individual case–just as we don’t need to see every other application of the law demonstrate its contribution to more perfect union.
I am not necessarily a gun fan, but I always wondered when this argument about militia comes about that can’t we just claim an individual right to gun ownership as a substantive due process right arising from the 2nd Amendment?
The supreme court frequently engages in trying to determine the intent of the FFs when they wrote the constitution and its amendments. Having a rationale put right in the document is absolutely of use in determining what they intended.
Until Heller the prevailing view was that the 2nd amendment afforded a collective right to having guns. Heller changed that to an individual right. This is expressed in Stevens’ dissent in Heller:
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The supreme court frequently engages in trying to determine the intent of the FFs when they wrote the constitution and its amendments. Having a rationale put right in the document is absolutely of use in determining what they intended.
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Except that the way Madison originally drafted the thing it was in two distinct and separate parts, and it was only in committee that it was changed to one sentence. It’s pretty clear from his own writings what Madison felt about this. I agree with you that it’s important to look at what their original intent was on stuff like this, though that doesn’t make the case that this was originally intended as a collective right (it doesn’t actually even make sense from the perspective of the FF’s). That said, we need to evaluate these things in terms of today, since the FF’s didn’t intend this stuff to be cast in concrete, but instead change as the times change.
Agreed. But I don’t think it makes any operational difference. (I think Stevens is wrong there, in presuming that “the people” has a different meaning in the Second than in other parts of the Constitution.)
It does. But no groups, such as militia, are mentioned in connection with the “people.” You have to read it in context. Other amendments refer to “the accused” in trials. Those are individuals.
I am a big fan of Madison and hold him in high regard and his thoughts on this matter are certainly worth noting. That said, what counts is the final revision as decided by committee and enacted by the constitutional congress and not what Madison initially intended.
I disagree that it doesn’t make sense from a FF perspective. They were looking to a way to protect the country without forming a standing army. They were not looking at home defense. Certainly having guns was just a thing back then. They probably did not even consider writing it for individual defense. Why would they? This is the only place in the constitution that guarantees access to a thing. Of all the things they would want to guarantee you can have a gun is foremost in their minds? I doubt it. Far more likely they were trying to ensure the US could defend itself against other nations.
As for it being a living constitution I agree completely that it should be. Justice Scalia, however, was an originalist and he is not alone in that view.
Perhaps that is why this is the one place they included a rationale. It is a way for them to tell people, “Hey folks…this one is a bit different than all the rest, pay attention.”
Guns were around as needed, then. It was assumed people could have them, but nobody imagined a federal issue. Guns were a local issue and any rules or laws (are there any, from 1770s?) about guns would be state law. Arms of other sort may have been limited. Cannons were for armies.
The Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It doesn’t say “an individual,” and uses plurals for houses, papers, and effects.
And the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Does this mean that the states are free to establish a religion?
I am pretty sure you could buy any weapon you were of a mind to back then. For instance you could own your own warship, cannons and all. Privateers were given letters of marque to hunt enemy ships all the time. I think that was prevalent in the War of 1812.
If you could have your own frigate I am hard pressed to think what they would not let you have.
None of these ideas deal with states. States could limit the rights, so could a local ordinance. No guns within city limits does not fall into 2nd amendment rule. A militia could be rounded up as needed by a local authority.