Because in an impressive feat of legal ju-jitsu, the court managed to pay lip service to the Second Amendment while upholding a law mandating a special federal tax on certain classes of weapons.
Which is why we need machine guns, bazookas and Stingers. Or perhaps, the US should get out of the superpower business and not have a gigantic standing army.
The reason gun rights advocates are so absolutist is because over a decades-long slippery slope, the Second Amendment was nearly interpreted out of existence. Like in the novel Animal Farm, where the shining ideals of the revolution were “clarified” into a mockery of their original intent. Governments will always want more control; Second Amendment supporters simply insist that the Second be guarded against compromise as militantly as the First is.
Clarify please when “the Second Amendment was nearly interpreted out of existence”? I missed when there was a case that would have ended private ownership of firearms in the US.
There was no such Supreme Court case, but “interpreted” has meanings other than “decisions of the United States Supreme Court”. There are posts right here in this thread which advocate the view that the Constitution (including the Second Amendment) does not and ought not protect any right of private ownership of firearms (or arms generally). I think it’s pretty fair to describe that as “interpreting the Second Amendment out of existence”. Heller and McDonald were not theoretical advisory decisions–SCOTUS doesn’t do theoretical advisory decisions–they were cases that stemmed from criminal laws in force in the District of Columbia and the city of Chicago that limited–even drastically limited–private ownership of firearms. And in both cases, the laws had been upheld by lower courts (U.S. District or U.S. Court of Appeals); lower court actions had followed an interpretation of the Second Amendment–especially in the Heller case–which said that there is no private right to own firearms. (Or own other arms–in the case that sparked this thread, the Massachusetts Supreme Court upheld a Massachusetts law outlawing private ownership of electric “stun” weapons.)
MEBuckner was responding to ChinaGuy, who asked when the second amendment was interpreted out of existence. He correctly stated that it was interpreted out of existence in Chicago and DC, among other places. SCOTUS didn’t make those rulings out of the blue, they did it because real people were having their rights infringed by real laws. The OP may be theoretical, but ChinaGuy’s question was not.
I don’t, as only the Supreme Court has the ability to say whether the law exist. They say those interpretations are not correct, so the law exists. The rest of us can only say the Supreme Court got it wrong.
That said, it’s a silly thing to get upset about. We all know what you mean, even if we don’t agree with the wording.
My only issue is that I don’t see anything wrong with that. There is a valid argument that the beginning is a restrictive clause, and that, if you can prove it wrong, the rest goes out the window. We’d be on much better grounds if the Second Amendment instead mentioned “self defense” as an issue.
I think that’s the fundamental right that’s buried in the amendment. If you adhere to my non-textualist view, you could even interpret it that way, and get the right to bear arms out of that. But, textually, there are two possible interpretations.
And Heller was 5-4. One vote different and that’s a whole different ball game, the bans in DC and Chicago stand, and the right now recognized that has always been there would have been interpreted out of existence.
One thing to note about the Caetano ruling - it was issued unanimously. Not only that, but it was issued without oral arguments. Only the initial briefings, and the cert petitions were used. SCOTUS felt comfortable vacating the Mass. court ruling on that basis alone. The thing is, the Mass. court also ruled unanimously, 7-0. They all got it so very very wrong. Without Heller and McDonald, courts like the Mass. court would interpret the 2nd amendment out of existence.
I don’t understand how some people interpret the second amendment to mean only the militia should be able to keep arms. Could one of the pro gun control people in this thread please give a counter argument?
If I said “A tasty salad being necessary to the consumption of healthy food, the right of the consumer to keep and bear salad dressing shall not be infringed” then the salad dressing obviously belongs to the individual and not to the salad!
This does not address the scope of arms to be kept, but I would like to first establish that it is in fact, an individual right.
You didn’t address “nearly” interpreted out of existence. I have missed what inflection point where the Second Amendment nearly removed the private ownership of firearms in the US of A. I’ve seen hundreds of slippery slope arguments whereby a token change is interpreted to mean enslavement of the general population by the evil US government and/or a foreign is just a heartbeat away.
Snarkiness aside, I would like to hear examples of Lumpy’s exact quote (emphasis added): “The reason gun rights advocates are so absolutist is because over a decades-long slippery slope, the Second Amendment was ***nearly ***interpreted out of existence.”
It was originally envisioned that people called to militia service would bring their own guns. The 1795 Militia Act actually required able-bodied men to own a serviceable musket. Militia service did NOT mean you were drafted and issued a service arm by the government.
When it was written muskets were the most dangerous arms a citizen would typically own. If it was acknowledged in the Second that individual citizens being necessary to protect the United States from foreign invaders was vital the the nations interests why restrict civilian arms at all? Ever?
The Founding Fathers knew they were fallible and that their ideas must change with the times. It’s silly as shit to point to a 250 year old document and say things should not change because we’ve done it this way for so long.
So ok, as Cecil points out the second part of the Second is absolutely crystal clear. Is it? Did James Madison envision Davy Crockett nuclear bazookas? Cause I don’t see anywhere in the Amendemnt where there are limits on arms civilians can own. If gun right activists where honestly fighting for principle they’d fight for the whole hog.
That’s why there is an amendment process. Perhaps we need to amend the 1st to explicitly protect the Internet, tv, and radio? Especially since the 9th and 10th are irrelevant.
Because it was feared that a federal ban on civilian arms ownership would geld the militias and open the way to a potentially tyrannical standing army- more or less what happened in other words.
Did James Madison envision Internet porn?
We’re trying. Right now we’d settle for repealing the 1934 NFA.
It’s quite silly indeed to assert that militias are “the people” and standing armies are “potentially tyrannical”. Who composes each one and who commands them?
But it’s even more silly to assert that the Constitution provides means for its own violent overthrow, in addition to the parliamentary procedure for replacing it. And it’s counterfactual to claim the historical background is self-defense and not provision for a military force - the amendment itself says what it’s for. Please also note that the founders did, in fact, change their minds about having a standing army virtually immediately after ratification - have we been tyrannized for over two centuries by the governments we’ve voted for, and just never realized it?
NB: The *Heller *vote *today *would be 4-4, and there would be far less yapping from the absolutist side as a result.
I realize the first sentence was tongue in cheek, but I don’t find the case that we need to be armed in order to overthrow a tyrannical government. How armed were the Poles, the East Germans, the Russians, the Czechs, etc.? Guns don’t make a revolution possible, only the determination of the people can. Did Gandhi win by use of force? Did MLK?
Swords, bows, crossbows, battle axes, hatchets, pole axes, daggers, dirks, pikes, tomahawks, spears, were all common when the 2A was written. So these without question.
Except that a “militia” in the 18th century was a self-and-family-and-town-and-country defense force. That’s why it was considered all adult males and not just those who mustered into regiments under a commander. The militia was an instrument of public safety, not just of war. They were more like the police. The men of a village were expected to defend the village and their families and farms from criminals because the government did not provide that service.
And they still don’t. Cops just catch criminals after the crime has been committed, unless you’re very lucky. Until the government issues a personal bodyguard to every citizen, it’s still up to you and you alone to defend yourself and your family. If you’re rich, you can hire it out, but poor and middle class people have to do it themselves. That’s what guns are for, because you can’t expect Grandma or Mr. Pencilneck to defend themselves from hardened criminals with their fists.
Militias are no longer needed to stop invasions. That’s what the Army is for. Militias are no longer needed to catch criminals after the crime has been committed. That’s why we have cops. But nobody has (or will any time soon) replaced the need for self-defense (or defense of other innocents when their lives are threatened). That’s why the courts decided self defense was the main reason behind the 2nd Amendment. That’s what’s left of the “militia” concept.
Or perhaps, the US should get out of the superpower business and not have a gigantic standing army.