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The Right to Bear Arms

13567

Posts

  • MatrijsMatrijs Registered User
    edited March 2008
    First off, I don't understand where all this "individual right to bear arms" nonsense is coming from. The second amendment makes it quite clear that the right to bear arms results from membership in a "well-organized militia". Not part of a militia? No right to own a gun. The goal of the amendment was to protect the right of states to form militias independent of the federal government.

    Secondly, the Second Amendment only restricts the power of the federal government. If any state wishes to ban firearms within its borders, it's completely within its rights to do so.

  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    D.C. isn't a state, and it says "shall not be infringe," which would seem to include all authorities.

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    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • sigmachievsigmachiev Registered User
    edited March 2008
    I've done a lot of research on this supreme court line up for my own law review and work articles. So some predictions: one, this will go for Heller (like the appeals court did), and two, it won't be as big of a clusterfuck as the pseudo 4-4-1 split about race being a determining factor in public school placement. I wont go so far as to say it'll be unanimous, but there are some so-called liberal justices who I can see weighing in on the side of this being unconstitutional. And I'd bet the farm that Kennedy (the very important "swing vote" justice for this group) goes with Roberts and Co.

    SMASH CODE: 4768-7151-3741
  • GooeyGooey Registered User regular
    edited March 2008
    Scalfin wrote: »
    Gooey wrote:
    Perhaps the more effective legislation would be for Virginia (and other states) to ban gun sales to out-of-staters? Even Texas does that.

    Gun shows are unregulated, and it's now illegal to track rogue sellers due to Tihart.

    I go through an NCIS check every time I buy a gun at a gunshow. Your states just need *gasp* effective gun control laws.

    Edit - As far as Tiahart goes, the information is restricted from private use. Law enforcement agencies still have access to the data.

    919UOwT.png
  • MedopineMedopine __BANNED USERS
    edited March 2008
    Matrijs wrote: »
    First off, I don't understand where all this "individual right to bear arms" nonsense is coming from. The second amendment makes it quite clear that the right to bear arms results from membership in a "well-organized militia". Not part of a militia? No right to own a gun. The goal of the amendment was to protect the right of states to form militias independent of the federal government.

    Secondly, the Second Amendment only restricts the power of the federal government. If any state wishes to ban firearms within its borders, it's completely within its rights to do so.

    It is not "quite clear" or this case wouldn't be being heard in the highest court in the land right now.

    Just to summarize what some of the justices were saying in argument:

    If it's not an individual right, why is it listed in the Bill of Rights?
    If it's only meant to modify the militia clause, why wasn't it placed with the militia clause?
    Why does it say "the people" instead of "the militia"?

  • MatrijsMatrijs Registered User
    edited March 2008
    Scalfin wrote: »
    D.C. isn't a state, and it says "shall not be infringe," which would seem to include all authorities.

    Actually, no. The fourth, fifth, and sixth amendment protections, for example, were not applied to the states until the Fourteenth amendment was ruled to "incorporate" those protections. These rulings mostly occurred during the sixties and seventies, so for almost two hundred years, states weren't touched by the first, fourth, fifth, sixth, and eighth amendments. The second, third, seventh, and portions of the fifth, sixth, and eighth amendments still do not apply to the states.

    I suppose you are correct that Washington DC isn't a state, but I would still argue that Washington DC's municipal government, as it is not strictly part of the federal government, is excluded from the second amendments restrictions.

  • MatrijsMatrijs Registered User
    edited March 2008
    Medopine wrote: »
    Matrijs wrote: »
    First off, I don't understand where all this "individual right to bear arms" nonsense is coming from. The second amendment makes it quite clear that the right to bear arms results from membership in a "well-organized militia". Not part of a militia? No right to own a gun. The goal of the amendment was to protect the right of states to form militias independent of the federal government.

    Secondly, the Second Amendment only restricts the power of the federal government. If any state wishes to ban firearms within its borders, it's completely within its rights to do so.

    It is not "quite clear" or this case wouldn't be being heard in the highest court in the land right now.

    Just to summarize what some of the justices were saying in argument:

    If it's not an individual right, why is it listed in the Bill of Rights?
    If it's only meant to modify the militia clause, why wasn't it placed with the militia clause?
    Why does it say "the people" instead of "the militia"?

    This is the funny thing about the Supreme Court. If you read their decisions on these sorts of hot-button issues, they rarely claim that the issues are complex or confusing. Instead, they more often argue that the issues are clear and obvious.

    Oddly enough, I have answers to those questions:
    1) The Bill of Rights wasn't originally a Bill of Rights granted to individuals so much as it was a list of restrictions on the power of the federal government. Remember, most of these rights were not extended to protect from state action until the 1960s or later, and only after the passage of the Fourteenth Amendment. This is simply another restriction on federal power. Notice the close relationship with the ninth and tenth amendments.
    2) Let me turn this question around. There's a doctrine in judicial review of the law that states that, where two conflicting interpretations of a given statute exist, one which either negates or ignores the existence of a particular clause or word, and one which does not, the interpretation which acknowledges the entire phrasing of the law is to be preferred. To simplify, if the word or phrase is there, it must have some meaning as far as what the law does. If the founders intended to grant a universal personal right to bear arms, why did they add in this seemingly redundant clause?
    3) There are any number of reasons for this. First, the founders could have feared the nationalization of state militias. Second, the founders might have wanted arms for the various state militias to be decentralized, the idea being that a hypothetical tyrannical national army couldn't sweep in and capture the state weapons stockpile, thus rendering the state helpless. The idea that the founders intended for the second amendment to create a universal, personal right is not the only possible conclusion from that particular phrasing.

  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Gooey wrote: »
    Scalfin wrote: »
    Gooey wrote:
    Perhaps the more effective legislation would be for Virginia (and other states) to ban gun sales to out-of-staters? Even Texas does that.

    Gun shows are unregulated, and it's now illegal to track rogue sellers due to Tihart.

    I go through an NCIS check every time I buy a gun at a gunshow. Your states just need *gasp* effective gun control laws.

    Edit - As far as Tiahart goes, the information is restricted from private use. Law enforcement agencies still have access to the data.

    While many do require it, they don't have to.
    The Tiahrt Amendment blocks police departments not involved in specific investigations, and even then is limited to the department's district. This means that they can't use the data to find rogue dealers or where the guns are coming from.

    That no funds appropriated under this or any other Act with respect to any fiscal year may be used
    to disclose part or all of the contents of the Firearms Trace System database maintained by the
    National Trace Center of the Bureau of Alcohol, Tobacco, Firearms and Explosives or any
    information required to be kept by licensees pursuant to section 923(g) of title 18, United States
    Code, or required to be reported pursuant to paragraphs (3) and (7) of such section 923(g), to
    anyone other than a Federal, State, or local law enforcement agency or a prosecutor solely in
    connection with and for use in a bona fide criminal investigation or prosecution and then only such
    information as pertains to the geographic jurisdiction of the law enforcement agency requesting the
    disclosure
    and not for use in any civil action or proceeding other than an action or proceeding
    commenced by the Bureau of Alcohol, Tobacco, Firearms and Explosives, or a review of such an
    action or proceeding, to enforce the provisions of chapter 44 of such title, and all such data shall be
    immune from legal process and shall not be subject to subpoena or other discovery, shall be
    inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall
    testimony or other evidence be permitted based upon such data, in any civil action pending on or
    filed after the effective date of this Act in any State (including the District of Columbia) or Federal
    court or in any administrative proceeding
    other than a proceeding commenced by the Bureau of
    Alcohol, Tobacco, Firearms and Explosives to enforce the provisions of that chapter, or a review of
    such an action or proceeding;

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    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    MikeMan wrote: »
    Kartan wrote: »
    I really hate to rain on your "glorious uprising against fascist gouverment oppression" parade here, but please consider this:


    I didn't realize I was having a fascist gouverment oppression parade, but thanks for letting me know. I also respectfully disagree with your assumption that the military would "ZOMG PWN UR ASS SO DONT EVEN TRY". I don't want to derail this thread and go into battlefield tactics, how our government would crush the puny civilians and all of the other inane tangets threads in D&D go off on, but our country was founded on an armed rebellion against the supposed "world's greatest military super-power". That's precisely why the 2nd amendment is there. It is a measure to keep balance to the power of the military, and it's role in a civilian government. Take it out, and you give too much power to one side.

    You gotta be kidding me.

    One: Britain would have crushed us if they hadn't given up and gone home to deal with their real threat, France. They didn't see it as worth it anymore.

    Two: As Than pointed out, if a true tyrant were in charge of the military, there would be not a fucking thing you could do against that military. The full force of the US Army, Navy, and Air Force against your fucking house, without any problematic little guidelines like "Don't seek to kill as many civilians as possible?"

    Are you insane? What are you gonna do, fire your little pistol at an F-22 as it flies overhead, raining bombs on your town? Yeah, that'll work well.

    Get fucking real.

    In the part where I said I didn't want to get off on military strategy and tangents, I thought about making a joke about you guys bringing up F-22s engaging civilians or something. Thank you so much for proving what an imagination you have.

    Surely you've followed the fucking war going on for the past 5 years. Insurgents armed with AKs, crap ammo, IEDs, and little training have managed to inflict huge casualties.

    As I said before, the 2nd amendment is there so the military does not have a monopoly on all weapons. That doesn't mean we should arm ourselves with cruise missles, vehicle mounted M-60's, and so forth. It means we're not completely fucking defenseless. In the revolutionary war, they had a lot more than muskets. Cannons, frigates, forts. Doesn't mean every citizen was allowed to own their own war fortress. It meant they could mobilize to at least put up some resistance if they were called upon. It also means that if some asshole breaks into my house in the middle of the night to do me harm, I have something to fight back with instead of begging for my life like. And frankly, that scenario is a lot more likely than the implied purpose of the 2nd.

    While it's true the founding fathers probably had no idea what the escalation of technology would lead to, they probably also had no idea what crime in this country would look like. They were concerned with people being able to defend themselves from the state. It's still a possibility, but needing to defend yourself from your fellow civilians has become much more relevant at this time.

  • mcdermottmcdermott Registered User regular
    edited March 2008
    Scalfin wrote: »
    Or you could just use a lock (would that be a trigger lock or a locked case?) I'm betting more people die from having an unsecured gun that from an oversecured one. Hell, an analyst on the issue said that there's data showing that the criminal is more likely to use it than you are.

    I think the oft-quoted stat is that your gun is more likely to kill you than save you, and it's taking into account suicides. Though I imagine it's possible that your gun is more likely to be stolen than used, in which case it's more likely to be used in a crime than prevent one (assuming that gun ownership in general doesn't passively prevent at least some crimes)...but I'd want to see a study showing that before I simply accept it as obvious.
    3) There are any number of reasons for this. First, the founders could have feared the nationalization of state militias. Second, the founders might have wanted arms for the various state militias to be decentralized, the idea being that a hypothetical tyrannical national army couldn't sweep in and capture the state weapons stockpile, thus rendering the state helpless. The idea that the founders intended for the second amendment to create a universal, personal right is not the only possible conclusion from that particular phrasing.

    Actually, it is the only possible conclusion. The second clause is quite clear...it's a right of the people, and it shall not be infringed. Hence it's a universal individual right. However, I do agree that in the context of the entire amendment (including the first clause) it's arguable that this individual right may have nothing whatsoever to do with home defense. Or hunting, for that matter.

    At that point really the second amendment only covers the private ownership of firearms, and would only necessarily cover a limited subset that would be suitable for individual use in a militia. Which is where you'd get into the downright silly situation where I have the right to own an AR-15, yet banning an over-under shotgun might be perfectly constitutional. And you could easily require that I keep it locked up and entirely disassembled, except when using it in a militia capacity ("bearing" it as part of the militia) or practicing with it (so to the range and back). I mean, you could argue that. But then as soon as you have people owning AR-15's and Beretta 92's (because sidearms are a perfectly capable militia weapon as well, and in fact I believe at least one state once banned all handguns but the current-issue military sidearms), you're going to see them stolen and used in crimes anyway (despite any safe-storage laws). So that would be somewhat pointless.

    Which is why I always find it amusing when politicians talk about wanting to protect the "rights of sportsmen." There is no such right. Under any reasonable interpretation of the second amendment, I have more right to "assault rifles" than I do to a bolt-action rifle for deer hunting, or to a revolver for self-defense.



    Also, regarding state vs. federal, I'm pretty sure we've moved beyond that point by now and the Bill of Rights (federal version) protects you from states as well. For instance, I know that fourth amendment protections apply to state governments as well, and search and seizure at least are not specifically mentioned in the text of the fourteenth (unlike due process, equal protection)...suggesting that all Bill of Rights protections fall under the more general aspects of the fourteenth amendment...privileges and immunities, maybe? But if the fourth applies to states, the second likely does as well, no?

    Well, actually seizure is mentioned in the fourteenth (deprive of property), but not search.

  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Bear was an exclusively military term, and I'd bet that keep has also changed quite a bit.

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  • MatrijsMatrijs Registered User
    edited March 2008
    mcdermott wrote: »
    Scalfin wrote: »
    Or you could just use a lock (would that be a trigger lock or a locked case?) I'm betting more people die from having an unsecured gun that from an oversecured one. Hell, an analyst on the issue said that there's data showing that the criminal is more likely to use it than you are.

    I think the oft-quoted stat is that your gun is more likely to kill you than save you, and it's taking into account suicides. Though I imagine it's possible that your gun is more likely to be stolen than used, in which case it's more likely to be used in a crime than prevent one (assuming that gun ownership in general doesn't passively prevent at least some crimes)...but I'd want to see a study showing that before I simply accept it as obvious.
    3) There are any number of reasons for this. First, the founders could have feared the nationalization of state militias. Second, the founders might have wanted arms for the various state militias to be decentralized, the idea being that a hypothetical tyrannical national army couldn't sweep in and capture the state weapons stockpile, thus rendering the state helpless. The idea that the founders intended for the second amendment to create a universal, personal right is not the only possible conclusion from that particular phrasing.

    Actually, it is the only possible conclusion. The second clause is quite clear...it's a right of the people, and it shall not be infringed. Hence it's a universal individual right. However, I do agree that in the context of the entire amendment (including the first clause) it's arguable that this individual right may have nothing whatsoever to do with home defense. Or hunting, for that matter.

    At that point really the second amendment only covers the private ownership of firearms, and would only necessarily cover a limited subset that would be suitable for individual use in a militia. Which is where you'd get into the downright silly situation where I have the right to own an AR-15, yet banning an over-under shotgun might be perfectly constitutional. And you could easily require that I keep it locked up and entirely disassembled, except when using it in a militia capacity ("bearing" it as part of the militia) or practicing with it (so to the range and back). I mean, you could argue that. But then as soon as you have people owning AR-15's and Beretta 92's (because sidearms are a perfectly capable militia weapon as well, and in fact I believe at least one state once banned all handguns but the current-issue military sidearms), you're going to see them stolen and used in crimes anyway (despite any safe-storage laws). So that would be somewhat pointless.

    Yet, that is the law. In fact, this was exactly the rationale for allowing Congress to regulate the interstate sale of sawed-off shotguns. Since they had no military application, the Supreme Court ruled that they weren't covered by the Second Amendment. That would seem to imply that there is no universal personal right to bear arms.
    Which is why I always find it amusing when politicians talk about wanting to protect the "rights of sportsmen." There is no such right. Under any reasonable interpretation of the second amendment, I have more right to "assault rifles" than I do to a bolt-action rifle for deer hunting, or to a revolver for self-defense.



    Also, regarding state vs. federal, I'm pretty sure we've moved beyond that point by now and the Bill of Rights (federal version) protects you from states as well. For instance, I know that fourth amendment protections apply to state governments as well, and search and seizure at least are not specifically mentioned in the text of the fourteenth (unlike due process, equal protection)...suggesting that all Bill of Rights protections fall under the more general aspects of the fourteenth amendment...privileges and immunities, maybe? But if the fourth applies to states, the second likely does as well, no?

    Well, actually seizure is mentioned in the fourteenth (deprive of property), but not search.

    Only some parts of the Bill of Rights have been incorporated into the "due process" clause of the Fourteenth Amendment. The second amendment is not one of those.

    In fact, certain rights guaranteed by the Bill of Rights on the federal level (right to a jury trial in a civil case is one of these) have been explicitly limited by the Supreme Court to the federal level, even recently. It's by no means a general rule that the Bill of Rights applies to state governments. The particular guaranteed rights are examined on a case-by-case basis.

  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

  • MatrijsMatrijs Registered User
    edited March 2008
    popular uprising against tyrannical government argument.

    Again, the purpose of the amendment was to ensure that states had the power to maintain militias independent of a potentially tyrannical national government. While this argument does still hold some merit today, it doesn't at all justify unlimited private ownership of arms. States have the ability and the right to regulated their militias, and the right to bear arms only has any meaning within that context. In US vs. Miller, the Supreme Court found that,
    n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

    It all comes back to well-regulated militias.

  • MatrijsMatrijs Registered User
    edited March 2008
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

  • ThanatosThanatos Registered User regular
    edited March 2008
    Indeed, it could be argued that possession of weaponry would make it easier for a tyrant to get the military to turn on its own people.

    And again, Saddam Hussein had a much smaller military, with much less training, against a populace that was much better armed, 80% of whom hated him, and yet somehow you think that civilians in the U.S. are going to be able to hold off the greatest military power the world has ever seen? Are you on crack?

    Seriously, there are good arguments to be made for people owning guns; being able to fight off the government isn't one of them.

  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    You mean his using wording straight out of the Dred Scott case didn't already indicate his willful ignorance.

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  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    I fail to see how. In order to have a militia, the people need to be able to have arms, and not have that right infringed upon. I'm sure at the time, the first clause was more relevant, but today has lost it's more rigid definition and can be looked at as a "militia of the people". Meaning we are all effectively the militia. And in order for us to be "well-regulated", we can't go around with wiffle ball bats. Doesn't mean it removes the first clause. You say that it takes away the first clause's meaning, but it depends on how you define the militia.

  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    edited March 2008
    Doc wrote: »
    If they are committed to leveling your state then, yes, small arms aren't going to do much. If the Army wants to quell some sort of uprising among the population without turning the area into a sheet of glass then they are going to need to use people, and that's where the small arms would be better than nothing. Taking the gloves off doesn't turn Joe Soldier into invincible killbot 4000.

    Edit: too slow

    The best defense against either is going to be the chain of command all the way down to the guy with his finger on the button/trigger being extremely unwilling to blow up a bunch of US citizens in Ohio or wherever, despite what his superiors are telling them to do.

    Not privately owned firearms.

    There are a number of reasonable scenarios in which privately owned firearms would be a deterrent to tyranny (and are, in my mind, much more realistic than the idea of F-22s carpet bombing entire suburbs).

    I don't want to get into detail here, but I'd be willing to talk about it in a split.

    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
    the "no true scotch, man" fallacy.
  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    Thanatos wrote: »
    Indeed, it could be argued that possession of weaponry would make it easier for a tyrant to get the military to turn on its own people.

    And again, Saddam Hussein had a much smaller military, with much less training, against a populace that was much better armed, 80% of whom hated him, and yet somehow you think that civilians in the U.S. are going to be able to hold off the greatest military power the world has ever seen? Are you on crack?

    Seriously, there are good arguments to be made for people owning guns; being able to fight off the government isn't one of them.

    Ugh. I see we're getting side-tracked again. Greatest conventional military. Yes.

    We've blundered through the last two unconventional wars we've fought, and have failed to catch one man in the mountains of Pakistan for the past 6 1/2 years.

    This argument is silly. I'm done playing what-if. Militias are guaranteed under the constitution, like it or not. Relevant in today's society or not. Deal with it. What's up for grabs is the definition of a militia, whether it can be regulated by state or federal law, and what the second clause of the amendment has to do with militias, or whether or not it's an individual right, dependent of militias.

    So....back on track.

  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    edited March 2008
    Unfortunately, I have little confidence in the Roberts SCOTUS to come to a reasonable nonpartisan conclusion on this matter. How the Second Amendment should be interpreted is largely orthogonal to the question of gun ownership - gun owners are not militia-men nor well-organized, nor are the guns under question useful for any military purpose. If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    I'm pretty damn pro-gun, but the only reasonable conclusion from an even remotely literate reading of the Second Amendment is that there is no individual right to own guns, and certainly not handguns. I dislike the NRA because they represent the worst in conservative lobbyist tactics; notably the reduction of what should be a nuanced and fact-based debate into a bunch of stupid soundbytes and the proliferation of the myth that the Second Amendment guarantees such an individual right.

    Instead, Slate had an incredibly cogent article discussing a possible Constitutional foundation for a (reasonably restricted) right to own guns that is not based on the Second Amendment, but rather on the Ninth and 14th Amendments. But, of course, this will never affect anything beyond the readership of Slate, and we can pretty much count on the Roberts court to find the most twisted ass-backwards politicized reading of the law conceivable to justify their pre-existing biases on the subject.

    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
    the "no true scotch, man" fallacy.
  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    I fail to see how. In order to have a militia, the people need to be able to have arms, and not have that right infringed upon. I'm sure at the time, the first clause was more relevant, but today has lost it's more rigid definition and can be looked at as a "militia of the people". Meaning we are all effectively the militia. And in order for us to be "well-regulated", we can't go around with wiffle ball bats. Doesn't mean it removes the first clause. You say that it takes away the first clause's meaning, but it depends on how you define the militia.

    The militia clause is a, what's the word, conditional clause. It's structure is one in which the amendment is reliant on militiary conditions. It also says "well regulated," which gives the falsity in saying we are all in the militia, because that is totally unregulated.

    [SIGPIC][/SIGPIC]
    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • MatrijsMatrijs Registered User
    edited March 2008
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    I fail to see how. In order to have a militia, the people need to be able to have arms, and not have that right infringed upon. I'm sure at the time, the first clause was more relevant, but today has lost it's more rigid definition and can be looked at as a "militia of the people". Meaning we are all effectively the militia. And in order for us to be "well-regulated", we can't go around with wiffle ball bats. Doesn't mean it removes the first clause. You say that it takes away the first clause's meaning, but it depends on how you define the militia.

    Well-regulated doesn't mean well-armed. Well-regulated means disciplined, trained, orderly. The population at large owning guns just doesn't fit that description.

  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    Scalfin wrote: »
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    I fail to see how. In order to have a militia, the people need to be able to have arms, and not have that right infringed upon. I'm sure at the time, the first clause was more relevant, but today has lost it's more rigid definition and can be looked at as a "militia of the people". Meaning we are all effectively the militia. And in order for us to be "well-regulated", we can't go around with wiffle ball bats. Doesn't mean it removes the first clause. You say that it takes away the first clause's meaning, but it depends on how you define the militia.

    The militia clause is a, what's the word, conditional clause. It's structure is one in which the amendment is reliant on militiary conditions. It also says "well regulated," which gives the falsity in saying we are all in the militia, because that is totally unregulated.

    But it's "the right of the people to keep and bear arms", that is the declarative phrase. It's not really dependent on the militia. It's like saying, "I feel terrible, I am not coming into work today." You can replace whatever you want in the first phrase, but the second part is what actually matters and has the factual detail. No matter what you would change it to, you're still not coming into work. I think the militia phrase is the wording of the time, and the second phrase is the spirit of the amendment. My personal opinion.

  • enc0reenc0re Registered User regular
    edited March 2008
    Feral wrote: »
    If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    Are you claiming that shotguns and handguns don't have military applications?

  • MatrijsMatrijs Registered User
    edited March 2008
    Feral wrote: »
    Unfortunately, I have little confidence in the Roberts SCOTUS to come to a reasonable nonpartisan conclusion on this matter. How the Second Amendment should be interpreted is largely orthogonal to the question of gun ownership - gun owners are not militia-men nor well-organized, nor are the guns under question useful for any military purpose. If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    I'm pretty damn pro-gun, but the only reasonable conclusion from an even remotely literate reading of the Second Amendment is that there is no individual right to own guns, and certainly not handguns. I dislike the NRA because they represent the worst in conservative lobbyist tactics; notably the reduction of what should be a nuanced and fact-based debate into a bunch of stupid soundbytes and the proliferation of the myth that the Second Amendment guarantees such an individual right.

    Instead, Slate had an incredibly cogent article discussing a possible Constitutional foundation for a (reasonably restricted) right to own guns that is not based on the Second Amendment, but rather on the Ninth and 14th Amendments. But, of course, this will never affect anything beyond the readership of Slate, and we can pretty much count on the Roberts court to find the most twisted ass-backwards politicized reading of the law conceivable to justify their pre-existing biases on the subject.

    I tend to think that the article is wrong on this subject. Restrictions on gun ownership, particularly on the state level, have a long tradition in the United States, as do public safety laws. Tradition alone doesn't create a right. Moreover, the approach of taking a few state constitutional guarantees of gun ownership and then forcing the same system onto all the other states seems entirely backwards to me. Isn't the whole point of federalism that states can have different laws?

  • MatrijsMatrijs Registered User
    edited March 2008
    Scalfin wrote: »
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    I fail to see how. In order to have a militia, the people need to be able to have arms, and not have that right infringed upon. I'm sure at the time, the first clause was more relevant, but today has lost it's more rigid definition and can be looked at as a "militia of the people". Meaning we are all effectively the militia. And in order for us to be "well-regulated", we can't go around with wiffle ball bats. Doesn't mean it removes the first clause. You say that it takes away the first clause's meaning, but it depends on how you define the militia.

    The militia clause is a, what's the word, conditional clause. It's structure is one in which the amendment is reliant on militiary conditions. It also says "well regulated," which gives the falsity in saying we are all in the militia, because that is totally unregulated.

    But it's "the right of the people to keep and bear arms", that is the declarative phrase. It's not really dependent on the militia. It's like saying, "I feel terrible, I am not coming into work today." You can replace whatever you want in the first phrase, but the second part is what actually matters and has the factual detail. No matter what you would change it to, you're still not coming into work. I think the militia phrase is the wording of the time, and the second phrase is the spirit of the amendment. My personal opinion.

    You're falling into the same trap that Scalia is. You cannot simply ignore that first clause. That would be subverting the will of the founders. They put it there for a reason; it has a bearing on the practical application of the law.

  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    It does. As I pointed out three pages ago, under law, all men between the ages of 17 and 45 are considered part of the militia. In order to have that militia, the members must be able to keep and bear arms.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • MatrijsMatrijs Registered User
    edited March 2008
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    It does. As I pointed out three pages ago, under law, all men between the ages of 17 and 45 are considered part of the militia. In order to have that militia, the members must be able to keep and bear arms.

    There are three problems with your claim. First, that would extend the right to bear arms to 17 year-olds, which no one is claiming. Second, that would restrict the right to bear arms to 17-45 year old males. No guns for women, no guns for old people. Third, if every male between the ages of 17 and 45 is considered to be in the militia, then surely it cannot be a very "well-regulated" one, can it?

  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    edited March 2008
    enc0re wrote: »
    Feral wrote: »
    If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    Are you claiming that shotguns and handguns don't have military applications?

    They have significantly less military application than full-auto rifles. I assume there's a reason we give our soldiers M-16s and not Ruger .22LRs.

    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
    the "no true scotch, man" fallacy.
  • electricitylikesmeelectricitylikesme Registered User regular
    edited March 2008
    Thanatos wrote: »
    Indeed, it could be argued that possession of weaponry would make it easier for a tyrant to get the military to turn on its own people.

    And again, Saddam Hussein had a much smaller military, with much less training, against a populace that was much better armed, 80% of whom hated him, and yet somehow you think that civilians in the U.S. are going to be able to hold off the greatest military power the world has ever seen? Are you on crack?

    Seriously, there are good arguments to be made for people owning guns; being able to fight off the government isn't one of them.

    Ugh. I see we're getting side-tracked again. Greatest conventional military. Yes.

    We've blundered through the last two unconventional wars we've fought, and have failed to catch one man in the mountains of Pakistan for the past 6 1/2 years.
    The only reason the US blunders is because it's not trying to setup dictatorships. When it comes to setting up dictatorships it's rather more effective.

  • enc0reenc0re Registered User regular
    edited March 2008
    Feral wrote: »
    enc0re wrote: »
    Feral wrote: »
    If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    Are you claiming that shotguns and handguns don't have military applications?

    They have significantly less military application than full-auto rifles. I assume there's a reason we give our soldiers M-16s and not Ruger .22LRs.

    Assault rifles (e.g. AK47, M16) are, without a doubt, the preeminent infantry arm of our time. However, it does not follow that they are the only arms covered by the 2nd, as you claimed earlier. In fact, since the preamble specifies the purpose of "arms," it stands to reason that all arms necessary to a well-regulated militia are covered.

    Oh, and WTF does caliber have to do with any of this?

  • Mai Guo-XunMai Guo-Xun Registered User
    edited March 2008
    I'd like to quote, for reference to my statement, the text of the second amendment in the version of the Constitution passed by the House and Senate, which is as follows:
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Now, I'm not going to suggest that I'm original enough to bring up a whole bunch of points that were not made before. However, I am going to put in my two cents so I can get in on the discussion on an open and declared footing.

    Let's split the amendment into three parts, first one starting from the beginning to the first comma, "A well..", second part from the second comma to the third, "being necessary..", and the third part comprising from the third comma to the end of the amendment.

    First Section
    A well regulated Militia..

    We need to ask ourselves what a "well-regulated militia" is. Furthermore, is the "well-regulated militia" a condition to gun ownership use, i.e., can only members of the militia own one? Or is it the objective of gun ownership, i.e., citizens must have guns in the event that a crisis occurs in which the regular army is unable to be called to battle, further i.e., that citizens have the power, if necessary, to form an armed militia for the public good.

    Considering the historical context, c.f., Revolutionary War, Whiskey Rebellions (and others) and clashes with the Native Americans, I don't believe I'm so far off base to suggest that the latter was intended by the founding fathers. That is, I don't believe, myself, that it's that unreasonable that the founding fathers saw the condition of gun ownership prerequisite to the creation of a militia, not the creation of a militia prerequisite to gun ownership. Given the historical circumstances and the idea of tyranny at the time, it's not difficult to imagine.

    Second Section
    being necessary to the security of a free State..."

    I believe the strongest indicator of a Founding Father's belief in this would be Jefferson's statement that a revolution/rebellion every twenty years or so would be beneficial to the United States. I apologize for not having the quote on hand, but I believe it was in reference to the Whiskey Rebellion, and even his approval of such methods in order to fight what could be construed as tyranny.

    In other words, in many cases the Founding Fathers openly supported violent rebellion, supported by firearms and regular civilians, as a safeguard against tyranny. As long as we're talking about the Founding Fathers' intentions in drafting this amendment, I doubt this situation could be ignored, especially in reference to many of their reactions following the post-Revolutionary rebellions, in which many of the rebellious citizens were granted amnesty.

    Now, I'd like to remind you about the Whiskey Rebellion: when the Federal army fired the first shot, the rebels fled. This was, clearly, not a well-regulated militia, but, really, a ragtag group of rebels and farmers. And yet, this formation was approved of and even lauded by some of the Founding Fathers. Therefore, if the Founding Fathers could laud a group of rag-tag rebels on their actions in defense of what they saw as tyranny, why would they deny this very same group of people the right to defend the state against the very same tyranny by keeping such a provision to a well-regulated (taken, I suppose, here, to mean "state-funded and well-disciplined").

    Section Three
    the right of the people to keep and bear Arms, shall not be infringed."

    This is, as my fellow poster suggested earlier, the declarative part of the amendment. It states the fact of the matter, as well as also stating the result of the past clauses. In effect, it contains the only enforcable part of the amendment.

    Also, note the wording. "..the right of the people..". The amendment does not state, "the right of well-disciplined militias" or any such thing, but rather expressly delegates the right to bear arms to the populace at large, by using the general word people, contrary to specifically delegating the right to bear arms to any specific organ of the government or township, or expressly resting that right on the foundation of any organization. The closest the amendment comes to this is in the first section, wherein there is simply the statement that a militia is necessary to the safety of a free state.

    However, I would like to think that I've demonstrated that it is a possible, if not indeed probable interperetation of the wording that the Founding Fathers believed that the ownership of guns was a required prerequisite of the foundation of a militia, rather than the express domain of such founded militias.

    I would take this opportunity to agree with my fellow poster in suggesting the first two sections are conditional statements, that is, "this is the reason why we're allowing this," rather than statements establishing bounds to gun use, while the third section thoroughly establishes the right to bear arms to the populace at large for the purpose, as contained in the first two sections, of creating a militia should the need arise.

  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    edited March 2008
    enc0re wrote: »
    Feral wrote: »
    enc0re wrote: »
    Feral wrote: »
    If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    Are you claiming that shotguns and handguns don't have military applications?

    They have significantly less military application than full-auto rifles. I assume there's a reason we give our soldiers M-16s and not Ruger .22LRs.

    Assault rifles (e.g. AK47, M16) are, without a doubt, the preeminent infantry arm of our time. However, it does not follow that they are the only arms covered by the 2nd, as you claimed earlier. In fact, since the preamble specifies the purpose of "arms," it stands to reason that all arms necessary to a well-regulated militia are covered.

    Oh, and WTF does caliber have to do with any of this?

    I think maybe you're missing my point, and I really don't want to follow your bread crumb trail off the track I was on.

    Do you care to address my overarching point rather than get into a discussion on the merits of specific arms?

    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
    the "no true scotch, man" fallacy.
  • MatrijsMatrijs Registered User
    edited March 2008
    snip

    I would dispute very strongly your categorization of the views of the Founding Fathers on the subject of the Whiskey Rebellion and of armed uprising against the national US government. Jefferson might have supported it, but the majority of the Founders did not.

    In fact, the whole reason that the Constitution was created was to strengthen the federal government after the Whiskey Rebellion demonstrated the ineffectiveness of the national government under the Articles of Confederation. Hamilton, Washington, Madison, John Adams, and most of the others who were actually present at the drafting of the Constitution (unlike Thomas Jefferson, who was in France at the time) were strongly supportive of a strong federal government that could and would put down armed revolt.

    Finally, your interpretation of the Second Amendment again falls into the trap of rendering the initial clause meaningless. It's there, in the text. It must have some implication on the administration of the rule. If the amendment was supposed to confer a personal, guaranteed right to bear arms, the first clause is unnecessary and redundant. So we can therefore conclude that the first clause is a necessary precondition to the second. If you're not in a militia, you don't have the right to bear arms.

  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Matrijs wrote: »
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    It does. As I pointed out three pages ago, under law, all men between the ages of 17 and 45 are considered part of the militia. In order to have that militia, the members must be able to keep and bear arms.

    There are three problems with your claim. First, that would extend the right to bear arms to 17 year-olds, which no one is claiming. Second, that would restrict the right to bear arms to 17-45 year old males. No guns for women, no guns for old people. Third, if every male between the ages of 17 and 45 is considered to be in the militia, then surely it cannot be a very "well-regulated" one, can it?

    If that were their intent, it would have said that the right of militia members to keep and bear arms will not be infringed. The first clause is the reason; the second clause is the action. Allowing non-militia members to keep and bear arms makes it easier to maintain a well regulated militia. And no, I don't necessarily consider the unorganized militia to be terribly well regulated; most of them probably are not practiced in the use of firearms. Somehow, I don't think that removing their ability to own a firearm would make them more regulated.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • MatrijsMatrijs Registered User
    edited March 2008
    Matrijs wrote: »
    Matrijs wrote: »
    I can't believe I'm about to say this, but I actually agreed with something Scalia said:

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.

    It does. As I pointed out three pages ago, under law, all men between the ages of 17 and 45 are considered part of the militia. In order to have that militia, the members must be able to keep and bear arms.

    There are three problems with your claim. First, that would extend the right to bear arms to 17 year-olds, which no one is claiming. Second, that would restrict the right to bear arms to 17-45 year old males. No guns for women, no guns for old people. Third, if every male between the ages of 17 and 45 is considered to be in the militia, then surely it cannot be a very "well-regulated" one, can it?

    If that were their intent, it would have said that the right of militia members to keep and bear arms will not be infringed. The first clause is the reason; the second clause is the action. Allowing non-militia members to keep and bear arms makes it easier to maintain a well regulated militia. And no, I don't necessarily consider the unorganized militia to be terribly well regulated; most of them probably are not practiced in the use of firearms. Somehow, I don't think that removing their ability to own a firearm would make them more regulated.

    You're trying to cut the phrase out of the amendment by rationalizing it away as "reasoning". The Founders didn't include reasoning in any of the seven other amendments in the Bill of Rights. Why should this one be an exception?

    Consider the terse wording of the eighth amendment:
    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    If your interpretation was correct, we would expect the Founders to have written something like
    These practices being contrary to the purpose of justice, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    But they didn't. That initial clause in the Second Amendment has an implication on the meaning of the amendment - otherwise it wouldn't be there.

  • enc0reenc0re Registered User regular
    edited March 2008
    Feral wrote: »

    I think maybe you're missing my point, and I really don't want to follow your bread crumb trail off the track I was on.

    Do you care to address my overarching point rather than get into a discussion on the merits of specific arms?

    Happily. Your overarching point:
    Feral wrote: »
    Unfortunately, I have little confidence in the Roberts SCOTUS to come to a reasonable nonpartisan conclusion on this matter. How the Second Amendment should be interpreted is largely orthogonal to the question of gun ownership - gun owners are not militia-men nor well-organized, nor are the guns under question useful for any military purpose. If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.

    Maybe I am missing your point. To me it seems whether the very weapon at issue (Heller wants a handgun) has "military applications" is part of your overarching point.

  • ThanatosThanatos Registered User regular
    edited March 2008
    Thanatos wrote: »
    Indeed, it could be argued that possession of weaponry would make it easier for a tyrant to get the military to turn on its own people.

    And again, Saddam Hussein had a much smaller military, with much less training, against a populace that was much better armed, 80% of whom hated him, and yet somehow you think that civilians in the U.S. are going to be able to hold off the greatest military power the world has ever seen? Are you on crack?

    Seriously, there are good arguments to be made for people owning guns; being able to fight off the government isn't one of them.

    Ugh. I see we're getting side-tracked again. Greatest conventional military. Yes.

    We've blundered through the last two unconventional wars we've fought, and have failed to catch one man in the mountains of Pakistan for the past 6 1/2 years.

    This argument is silly. I'm done playing what-if. Militias are guaranteed under the constitution, like it or not. Relevant in today's society or not. Deal with it. What's up for grabs is the definition of a militia, whether it can be regulated by state or federal law, and what the second clause of the amendment has to do with militias, or whether or not it's an individual right, dependent of militias.

    So....back on track.
    For those of you with reading comprehension problems:

    "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

    So, if it's not necessary...

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