The second amendment is an anachronism. It deals with an ad hoc citizens militia in a frontier society. The militia system produced an ineffective military and internal conflict. The militia system was abandoned after it’s disastrous performance during the war with Mexico. The second amendment should have been modified at that time. We now have an unmanageable mix of propaganda and weaponry. It is no wonder that SCOTUS avoids wading into it.
I would say they’re dodging them because they pretty much know where everybody stands and don’t currently have the numbers to do anything more radically pro-gun than Heller.
“Militia” has no bearing on your right to keep and bear arms, Heller made that clear to me. "Militia’ is only important as to what arms you can bear, based upon the worst SCOTUS dec- Miller. (Miller should never have been heard as there was no opposition.)
Look, Heller was the obvious reactions to three cities passing laws that pretty much banned guns. The anti-gun crowd finally pushed SCOTUS too far with those laws. SCOTUS had to react.
Heller does make it clear that the right to own a gun for self defense is a Constitutional right.
The original wording of the 2nd didn’t include “Militia” . It was added at the insistence of delegates who were against a standing army. That is why it is worded like that- rather poorly, I admit. The idea is that it protects two things- the right of the states to have a militia (so that we are not dependent on a standing army, but that is now a dead issue) and the rights of the individual to own a gun- which may, of course be used in the Militia.
Which means there is an individual right to militia arms.
200+ years ago that meant the Kentucky squirrel rifle. Today it means so called assault weapons.
Those who claim there is a right to bear arms but not those arms are borrowing from both conflicting understandings of the 2nd. In otherwords, they want their cake and eat it too. It’s just not legally possible. Either there is an individual right to bear militia arms or there is no individual right to bear any arms.
Yes, and that is the point. The second deals with the “security of a free state” and the issue of a standing army not with an individual right.
The way the 2A is worded (as in the case of the rights in the First), it is assumed the right exists, and the prohibition (as interpreted by case law) is against restrictions that have the intent or effect of making it entirely or mostly academic.
Then there is the other clause which is that the armed citizenry are to be relied upon to make up a militia. This IMO is not entirely mooted by the fact of the creation of an official centrally organized militia subordinate to the CinC, as in a dire situation you should be able to contemplate having armed volunteers deputized to assist in the defense of the home soil, but it can be reasonably interpreted in the sense that in 2020 we’re not going to realistically expect the average able bodied nonfelon male between 17 and 45 to equip himself like a light infantryman, so the state’s militia branch will take care of equipping and training those who commit to doing most of the actual expected warfighting or rebellion-quelling( * ), and we’d rather not have some rando assemble his own heavy weapons platoon not subordinate to the state’s authority. So congratulations, you ARE the citizen militia, and in the TOE, you are rearguard security personnel rated only for semiautomatic small arms. Knock yourself out with those.
( * ) I mean, the amendment language says the militia exists “for the security of a free state” and the militia clauses in the main body of the Constitution contemplate the militia is to be used against insurrection invasion and lawbreaking under orders of the CinC. Nowhere does it mention operating independently of the state’s authority.
Interesting, and the words and sentence structure are clear. The second doesn’t assume any right. The entire amendment is in the context of ‘a well regulated’ militia. It addresses ‘state security’. The issue was between a citizen militia and a standing army. The militia limped along until the war with Mexico demonstrated that it was not viable.
A rational view of the BOR protects our rights. But the first does not allow Puritans to continue lynching Quakers and the second doesn’t allow everybody to run around armed to the teeth. We are a country of laws.
The reason that the 2nd is so hard to understand is because it was never meant to apply to the states, only to the federal government.
It never meant for an individual right to have guns, it meant for the states to regulate guns within their jurisdictions.
Most states and municipalities had laws limiting or even banning guns.
Incorporating it into the states is what has caused all of the problems.
Assembly? I know that there are parts of sentences saying that, while on parole or after, you can not have contact with certain individuals (i.e. you can’t go hang out with the old gang).
Oh, I disagree completely. You can have the right to bear arms, while which type of arms can be regulated. And, I know what the argument is going to be. The second ammendment says
(why, yes, I’ve had this argument before)
Yes, and the text of the First amendment says
but no one is complaining about their human sacrifices or how it’s illegal to start a riot or how I have to pay for a permit for my scheduled march or… Reasonable restrictions can be put on these “rights”
Quite frankly, I’m a centrist. I have no problem with you owning 37 guns; why do you have a problem registering them? I’m not stopping you from owning them, I just want to be able to trace their purchase when a felon owns one and uses it in a crime. Where did he get it? The gun problem in Chicago comes from people legally purchasing guns (suburbs? Yeah, but then you have the 5-day waiting period. Gun show in Indiana / Kentucky? No waiting period!) then illegally selling them in the city. Without registrations, it is EXTREMELY difficult to prove the crime. I don’t have a problem with bans on “assault weapons” (you don’t need a semi-automatic shotgun for home protection); I do have problems with federal laws removing liability from the manufacturers. Can’t get an automatic? Buy a bump-stock! We don’t care - we can’t get sued!
Oh, crap. I’m ranting again. Sorry.
The First Amendment as originally written also “never meant to apply to the states, only to the federal government”:
Thus, the guarantees of the First Amendment regarding freedom of religion, speech, the press, assembly, and petition obviously originally applied only to the federal government (“Congress shall make no law…”). For example, whatever the religion clauses of the First Amendment mean, they surely prohibit an officially established church, yet Massachusetts did not dis-establish the Congregationalist Church in that statue until 1833 (and that dis-establishment was not the result of any judicial action under the First Amendment of the United States Constitution, but was part of the ordinary political processes of the Commonwealth of Massachusetts).
But in 1868 we had the Fourteenth Amendment, which (among other things) provides that:
This has since been held to “incorporate” nearly all of the federal constitution’s protections of individual rights in the Bill of Rights against action by state (and local) governments. There is evidence that this is exactly what is intended; during the process of introducing and ratifying what would become the Fourteenth Amendment, Michigan Senator Jacob M. Howard declared (as quoted in an article in Slate magazine) that the “great object” of the amendment was to:
Dr, Winston,
You give good rant.
The right to vote, in a number of states.
That strikes me as a more basic right than the right to bear arms; though it’s certainly arguable that the founders didn’t think so, as it was at the time allowed to only a small percentage of the people.
Actually, I was startled to learn a while back that there ARE First Amendment fundamentalists who believe that any and all restrictions of speech, including criminalization of forms like extortion, are unconstitutional.
People are weird.
Oh, I’m certain there are. They’re probably as numerous as TRUE 2nd amendment fundamentalists, just not as well funded. The NRA and similar groups are made up PRIMARILY of non-fundamentalists (I’ve seen surveys that the majority of NRA members are for gun registrations, so not “fundamentalists”); they’ve been hijacked by a rabid nutjob, and most of them don’t care enough to cancel their membership. George HW Bush gave up his membership. My father had a membership because he belonged to a hunting club, and it came with the fees for the club. When he quit the club, he quit the NRA; I’m willing to bet that a majority of the NRA membership are in that situation: they belong to a club that includes NRA membership automatically; they didn’t choose on their own to join the NRA.
That is totally untrue. If you read the discussion and history of the 2nd ad, yes, the members of the convention certainly wanted to allow individuals to own guns, many thought that was a given, in fact.
The whole militia clause was added as a compromise due to a vocal group against a standing army.
So we may have an actual reason:
And that was one of my theories in the OP. Your cite solidifies my belief that this is the answer.