What does the second amendment mean?

Hard On The Wind

Super Anarchist
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279
GMT-8
When deciding if Obama is shitting on the 2nd it might be worth discussing what the amendment means or doesn't. I thought this article is relevant. It says that the Supreme Court has been changing it's mind over the years as to what it really means. I find it to be odd that they can't make up their mind about it.

The Second Amendment of the United States Constitution reads: "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." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.


This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521). The plaintiff in McDonald challenged the constitutionality of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.

Recent case law since Heller suggests that courts are willing to, for example, uphold:

regulations which ban weapons on government property. US v Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (upholding defendant’s conviction for bringing a handgun onto post office property);

regulations which ban the illegal possession of a handgun as a juvenile, convicted felon. US v Rene, 583 F.3d 8 (1st Cir. 2009) (holding that the Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment);

regulations which require a permit to carry concealed weapon. Kachalsky v County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York law preventing individuals from obtaining a license to possess a concealed firearm in public for general purposes unless the individual showed proper cause did not violate the Second Amendment.)
 

jocal505

moderate, informed, ex-gunowner
14,221
284
near Seattle, Wa
Yes, the situation is evolving, so the combination of solutions might be expected to evolve.

What works in one place might not work in another; what works now may not work ten years from now.

Yes, the courts and constitution have flexed before, and have been fine-tuned for the better as well.

 

Pertinacious Tom

Importunate Member
61,295
1,680
Punta Gorda FL
In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.
Wrong in three different ways.

1. They considered Mr. Miller's case because he was part of "the people" and thus covered by the amendment. If they thought he had to be a member of a militia, they would not have considered his case, since he was not.

2. Mr. MIller didn't show up so the government argued the case that defined our rights for decades unopposed. The quote suggests that there was evidence. Had someone been present to give evidence, the court would have been shown that short shotguns had been used in warfare and in personal defense. But no one showed up and no evidence was presented. It was the lack of evidence that the court cited.

3. The decision talked about the effectiveness of militia forces, not "the military."

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made.


By "such forces" they were referring to people who ordinarily worked as a "labourer, artificer, or tradesman" and who would "appear bearing arms supplied by themselves."

To ensure that the people could appear bearing appropriate weapons like .22 caliber revolvers, the second amendment prevents the government from disarming the people.

 

John Drake

Banned
12,078
0
Portmeirion
No surprise JoCal sees The Bill of Rights as fluid.

I think the question is easily answered. Ask yourselves this; Why is there a Second Amendment? To answer that you would have to consider who would possess or claim the authority to take away personal fire arms. That answer should be blatantly clear, the government would be the only entity in a position to take away personal fire arms. So, who is The Second Amendment meant to limit? Well it isn't the gun owner, so it must be the government.

 
G

Guest

Guest
When deciding if Obama is shitting on the 2nd it might be worth discussing what the amendment means or doesn't. I thought this article is relevant. It says that the Supreme Court has been changing it's mind over the years as to what it really means. I find it to be odd that they can't make up their mind about it.

The Second Amendment of the United States Constitution reads: "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." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521). The plaintiff in McDonald challenged the constitutionality of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.

Recent case law since Heller suggests that courts are willing to, for example, uphold:

regulations which ban weapons on government property. US v Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (upholding defendant’s conviction for bringing a handgun onto post office property);

regulations which ban the illegal possession of a handgun as a juvenile, convicted felon. US v Rene, 583 F.3d 8 (1st Cir. 2009) (holding that the Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment);

regulations which require a permit to carry concealed weapon. Kachalsky v County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York law preventing individuals from obtaining a license to possess a concealed firearm in public for general purposes unless the individual showed proper cause did not violate the Second Amendment.)
f_untitledmvm_4b54bbb-1.png


 

ShortForBob

Super Anarchist
33,888
2,562
Melbourne
"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."

I've read this over and over and can't make any grammatical sense out of it.

It seems to be saying clearly that something may not be infringed but what exactly?

"A well regulated Militia, being necessary to the security of a free State and the right of the people to keep and bear Arms, shall not be infringed." A bit better.

But how does one infringe a noun? or are they talking about infringing the "well regulated" bit..does this mean one may infringe an unregulated militia?

I'll play with it a bit

"the right of the people to keep and bear Arms or form a well regulated Militia(being necessary to the security of a free State) shall not be infringed."

Now that would make sense and change nothing.

But how sensible people can be so passionate about an obviously flawed phrase in a 300 yo document beats me.

Maybe you should amend the amendment.

 
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John Drake

Banned
12,078
0
Portmeirion
Aw Geezus. The first part is the justification for the second part, the third affirms the second as being undeniable.

The purpose is to grant individuals the right to take up arms to overthrow our government in the event it ignores the will of the people. It is the proverbial "big stick".

 
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ShortForBob

Super Anarchist
33,888
2,562
Melbourne
"A well cooked chicken, being necessary to the health of a consumer, the right of the people to keep and bear cooked chicken, shall not be infringed."

Does that sentence make sense? OR

"A well cooked chicken, being necessary to the health of a consumer (the right of the people being to keep and bear cooked chicken) shall not be infringed."

That does ...sort of (although I'm not sure how one infringes the rights of a well cooked chicken)

I'm not being facetious, just trying to demonstrate the grammatical failings of two sentences with the same structure.

 
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G

Guest

Guest
"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."

I've read this over and over and can't make any grammatical sense out of it.

It seems to be saying clearly that something may not be infringed but what exactly?

"A well regulated Militia, being necessary to the security of a free State and the right of the people to keep and bear Arms, shall not be infringed." A bit better.

But how does one infringe a noun? or are they talking about infringing the "well regulated" bit..does this mean one may infringe an unregulated militia?

I'll play with it a bit

"the right of the people to keep and bear Arms or form a well regulated Militia(being necessary to the security of a free State) shall not be infringed."

Now that would make sense and change nothing.

But how sensible people can be so passionate about an obviously flawed phrase in a 300 yo document beats me.

Maybe you should amend the amendment.
I'm sorry. You're officially an idiot. And a troll.

 

jocal505

moderate, informed, ex-gunowner
14,221
284
near Seattle, Wa
"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."

I've read this over and over and can't make any grammatical sense out of it.

It seems to be saying clearly that something may not be infringed but what exactly?

"A well regulated Militia, being necessary to the security of a free State and the right of the people to keep and bear Arms, shall not be infringed." A bit better.

But how does one infringe a noun? or are they talking about infringing the "well regulated" bit..does this mean one may infringe an unregulated militia?

I'll play with it a bit

"the right of the people to keep and bear Arms or form a well regulated Militia(being necessary to the security of a free State) shall not be infringed."

Now that would make sense and change nothing.

But how sensible people can be so passionate about an obviously flawed phrase in a 300 yo document beats me.

Maybe you should amend the amendment.
I'm sorry. You're officially an idiot. And a troll.
Does Cuntfinder the Great find himself short of invectives today?

 

ShortForBob

Super Anarchist
33,888
2,562
Melbourne
"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."

I've read this over and over and can't make any grammatical sense out of it.

It seems to be saying clearly that something may not be infringed but what exactly?

"A well regulated Militia, being necessary to the security of a free State and the right of the people to keep and bear Arms, shall not be infringed." A bit better.

But how does one infringe a noun? or are they talking about infringing the "well regulated" bit..does this mean one may infringe an unregulated militia?

I'll play with it a bit

"the right of the people to keep and bear Arms or form a well regulated Militia(being necessary to the security of a free State) shall not be infringed."

Now that would make sense and change nothing.

But how sensible people can be so passionate about an obviously flawed phrase in a 300 yo document beats me.

Maybe you should amend the amendment.
I'm sorry. You're officially an idiot. And a troll.
Does Cuntfinder the Great find himself short of invectives today?
Nah, he just can't make sense of the sentence either :D

 

Gouvernail

Lottsa people don’t know I’m famous
37,361
5,069
Austin Texas
The way I see it the commas are deliberate.

"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."

The first and second comma set off a phrase telling readers about the well regulated militia . The authors wanted readers to know they considered that militia to be necessary to the security of the free state

The second and third comma set off the phrase about the right of the people to bear arms

Why?

Because the framers were VERY careful with their grammar and use of words.

If you remove the third comma, "the right of the people to keep and bear arms shall not be infringed" stands virtually alone.

Without that third comma, the important part about militias and their necessity is a phrase entirely dis-connected from the infringe wording.

The third comma makes it clear there are two things which cannot be infringed

Putting the amendment in today's lingo:

We gots ta have a homey boy group to keep an eye on da man, we gotta have weapons, ain't nobody gets to tell us how to organize or what weapons we can keep ready

Or

It says the government cannot infringe on the militia ( that is there to keep a free state) and the government can't infringe on the right to bear arms.

Or

It says

Because we intend to stay organized and keep the freedoms we just obtained by throwing the king off our backs,

The government may neither infringe on the militia or the people's rights to bear weapons

 
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G

Guest

Guest
Jocal, you probably don't realize it- but I take great pride and joy in you calling me "cunt finder". I found you and specious Ed and meli. So it must be true.

Thank you.

 

jocal505

moderate, informed, ex-gunowner
14,221
284
near Seattle, Wa
Thanks, Gouv.

The reason the well-regulatd militia was needed to face off against a possible tyrant involved Northern values.

In the North, slavery was not respected, and neither were slave-control militias.

There was some question whether a progressive president with a standing army could face off against slaveowners.

Standard historians roll with that theory. This gent, Saul Cornell, PhD, may lay it out most eloquently.

We wrote this gem a few days after Sandy Hook.

Sorry boys, the SAF has tried to fabricate an historical fraud.


This is his book

A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America

by Saul Cornell

Equally important, he describes how the gun control battle took on a new urgency during Reconstruction, when Republicans and Democrats clashed over the meaning of the right to bear arms and its connection to the Fourteenth Amendment. When the Democrats defeated the Republicans, it elevated the "collective rights" theory to preeminence and set the terms for constitutional debate over this issue for the next century.

A Well-Regulated Militia not only restores the lost meaning of the original Second Amendment, but it provides a clear historical road map that charts how we have arrived at our current impasse over guns. For anyone interested in understanding the great American gun debate, this is a must read.

Winner of the Langum Prize in American Legal History/Legal Biography(less)

Pasted from <http://www.goodreads.com/book/show/777280.A_Well_Regulated_Militia>



If you wanted a layout to challenge my historian (Saul Cornell) , you would find that your homework is done here.

48pgs Hardy vs. Cornell, A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America

David T. Hardy, A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America, 15 Wm. & Mary Bill Rts. J. 1237 (2007),

http://scholarship.law.wm.edu/wmborj/vol15/ iss4/6
This author, David Hardy floated the original theory of Individual Rights for guns, according to himself, from AZ in 1974. (Larry Pratt's GOA followed two years later, with the bitter staff from Goldwater's AZ faction). Hardy was the first to claim that the Federalist 26 and 49 are all about individual rights...but read them folks, any association would be peripheral...that being where militia guns are kept, in the homes.

Be careful about this author. He has made a career of defending WACO survivors, with a cottage industry of trying to discredit Michael Moore. David Hardy claims that the FBI fired 200 shots at Koresh followers, as they tried try to escape the flames http://www.jeffhead.com/liberty/flirdeath.htm (which Tom Ray claims the FBI started).

Hardy was quoted in the FOPA of 1985. John Ashcroft quoted Hardy after 2000, and for the PLCAA.

Seven out of eight of Hardy court decisions quoted in Heller are gleaned from southern courts.

BTW, Tom Ray can't really present a single constitutional scholar. When pressed, he used one Levinson article, without fanfare or introduction.

 
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ShortForBob

Super Anarchist
33,888
2,562
Melbourne
this is all very confusing. This document is supposed to be the final version ratified by 3/4 of congress...it makes more sense.

01450021.gif


 
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