Mass shootings in El Paso, Texas and Dayton, Ohio

[Danoff]

I read the summary. Individual gunrights is a recent phenomena and the NRA has a large part in creating the narrative that led to supreme court case.

You sure do seem interested for someone who seems uninterested. I get that you have a narrative that you don't want to challenge...

 

[PocketZeven]

You sure do seem interested for someone who seems uninterested. I get that you have a narrative that you don't want to challenge...

Sorry I dont really understand your comment. Could you explain? Did I say I was unintrested? Which narrative did I want unchallenged?

I was curious about your opinion about the previous history of the 2nd amendment. Most importantly the recent change to individual rights. I always assumed its current interpretation was much older.

 

[Danoff]

Sorry I dont really understand your comment. Could you explain? Did I say I was unintrested? Which narrative did I want unchallenged?

I was curious about your opinion about the previous history of the 2nd amendment. Most importantly the recent change to individual rights. I always assumed its current interpretation was much older.

The DC v Heller majority opinion explains why the current interpretation is the right that was codified the entire time in the 2nd amendment. You're going to force me to read it again and quote it to you aren't you?

For someone who seems uninterested in the 2nd amendment (not bothering to read the majority opinion, sticking to a summary, listening to someone summarize it badly in a ted talk), you seem very interested in the 2nd amendment (constantly posting on it, opining on it, and generally engaged in the discussion).

The narrative that you don't want to have challenged is the it is an invention of the NRA.

 

[PocketZeven]

The DC v Heller majority opinion explains why the current interpretation is the right that was codified the entire time in the 2nd amendment. You're going to force me to read it again and quote it to you aren't you?

For someone who seems uninterested in the 2nd amendment (not bothering to read the majority opinion, sticking to a summary, listening to someone summarize it badly in a ted talk), you seem very interested in the 2nd amendment (constantly posting on it, opining on it, and generally engaged in the discussion).

The narrative that you don't want to have challenged is the it is an invention of the NRA.

The Supreme court at that time made that conclusion. The 2nd amendment has been interpreted differently by courts before. In the past it has most often been interpreted as a protection from the government.

https://en.wikipedia.org/wiki/List_of_firearm_court_cases_in_the_United_States

When did I claim it is an invention of the NRA? Nonetheless they were instrumental in the narrative of individual rights. pre 1970's the NRA was a non-partisan organisation.

You are focusing on the Heller courtcase, I acknowledged and respect that this is the law now in the USA, however i am specifically asking your opinion on the pre 1970's interpretation. I have not pressed or suggested the current interpretation should be presented to the supreme court again.

edit: a 5-4 ruling is a majority, but barely. It would have taken exactly 1 person in the whole of the USA to have changed the interpretation of the current 2nd amendment.

 

[Danoff]

The Supreme court at that time made that conclusion. The 2nd amendment has been interpreted differently by courts before. In the past it has most often been interpreted as a protection from the government.

https://en.wikipedia.org/wiki/List_of_firearm_court_cases_in_the_United_States

When did I claim it is an invention of the NRA? Nonetheless they were instrumental in the narrative of individual rights. pre 1970's the NRA was a non-partisan organisation.

You are focusing on the Heller courtcase, I acknowledged and respect that this is the law now in the USA, however i am specifically asking your opinion on the pre 1970's interpretation. I have not pressed or suggested the current interpretation should be presented to the supreme court again.

edit: a 5-4 ruling is a majority, but barely. It would have taken exactly 1 person in the whole of the USA to have changed the interpretation of the current 2nd amendment.

It could be the dissenting opinion for all I care. What I care about is that it was a persuasive argument. Opening pages, I bolded the parts I want you to focus on:

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64. 478 F. 3d 370, affirmed.

For more detail, you can refer to the cited pages. Here's the full text:

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

None of the prior court cases limited the 2nd amendment to militia. The surrounding context (state laws and drafts) of the amendment indicates that an individual right was precisely what was on the minds of legislators. You have to keep in mind that at the time of the bill of rights it was considered pointless to even write. James Madison (who wrote the bill of rights) argued that the Bill of Rights should not even be written, since no one in their right mind would construe the federal government's powers as being able to infringe on those rights which were written in the Bill of Rights. He considered it entirely redundant and it went forward over his protest.

The supreme court carried out the history project you're asking for, and they reached the conclusion that it is and always was intended to be an individual right.

Edit:

I'm reading through it and I got only part way into the very first section - the grammatical analysis - and honestly you cannot help but come to their conclusion. Not only was this a common and non-limiting drafting technique at the time, it also amounts to a basic logic operation If A Then B. If militia then right to bear arms. But it is well known and understood that it is a logical fallacy (I think it's called denying the antecedent) to then conclude Not A then not B. B is not dependent on A, A is dependent on B. Not B implies not A. Not A does not imply not B.

Anyway, they go into so much extraneous depth in analyzing that clause (well beyond what I just wrote above), there seems to be no doubt.

Edit 2: Page 7 is also equally devastating... and so far this is just interpreting the phrase based on the words written and the document itself.


Edit 3: I do love this opinion. It's so unbelievably thorough. Watch how they destroy this dumb argument:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Edit 4: Oh man, I forgot how good this was.

Without the preposition, “bear arms” normally meant (as it continues to mean today) what JUSTICE GINSBURG’s opinion in Muscarello said.

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Oh you supreme court justices, so witty.


Edit 5:

Oh man, page 15, using their own rationale against them.

Edit 6:

Ok, I have to hang it up for now at page 19 and get back to work. What a fantastic read! Thanks for dragging me back into it, it had been years since i had read this and it is wonderful.

Edit 7:

I cheated... so much for the NRA!

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

Edit 8:

Militia is a force of individuals which can oppose a standing army to prevent tyranny. It is not the standing army itself, it is the citizenry.

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that selfdefense had little to do with the right’s codification; it was the central component of the right itself.

Edit 9:

And of course, the oppositions argument is carried through it its contradictory nonsensical conclusion here:

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee— it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.

You see how it falls apart so pathetically.

Edit 10:

Ok I have to work again after this. But first... pages 27 through 30 go through a lengthy discussion of various state constitutions which enshrine an individual right to bear arms for use on their own lands and for their own purposes. And you're thinking to yourself the whole time "ok but honestly the federal constitution doesn't have to be the same, why are we talking about the state constitutions then?". But of course the opinion has the perfect answer to that question waiting at the conclusion. This quote has less sting to it if you haven't read the leadup to it, but I didn't feel like posting page and after page of the opinion.

The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause.

Yes, of course. It would be out of left field for it to mean something else given the entire context of everything that was known and said at the time.


Edit 11:

So much for the NRA! Apparently the NRA means some dude in 1825 whose opinion jived with the legal scholars at the time and writings of the people who actually codified the 2nd amendment at the time.

In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows:

“The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . .

“The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.

“The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.20

Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See id., 122–123. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed

And of course this part

Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. JUSTICE STEVENS suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post, at 34. That is wrong. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. 3 Story §1858. He then equated the English right with the Second Amendment:

“§1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.)

This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended . . . and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Andrews v. State, 50 Tenn. 165, 183 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story §1890, n. 2; §1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States §450 (reprinted in 1986).

They're beating a dead horse here. But I love that they let the beating continue, because it's such an important question. Yes, this is the 20th time they've killed the militia interpretation, but this particular instance is also persuasive.


I like this bit too

We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary.

“The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832).

Edit 12:

I'm reminded of the moron in the youtube video saying that nobody before the NRA thought that the 2nd amendment was an individual right... seems that it was the other way around, almost I everyone did.

An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever.

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

I'm just quoting the whole thing at this point. I'll try to post less.

pages 44-47 are equally devastating to the comment about the NRA. And show people in the mid 1800s explaining why the "militia" bit is not limiting.

Edit 13:

Ok I made it to page 54 and i have to quit. They're moving on to what the 2nd amendment doesn't cover, and it's quite significant. But it's somewhat off-topic for the question at hand. So I think this is the last edit to this marathon post.

 

[PocketZeven]

It could be the dissenting opinion for all I care. What I care about is that it was a persuasive argument. Opening pages, I bolded the parts I want you to focus on:



For more detail, you can refer to the cited pages. Here's the full text:

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

None of the prior court cases limited the 2nd amendment to militia. The surrounding context (state laws and drafts) of the amendment indicates that an individual right was precisely what was on the minds of legislators. You have to keep in mind that at the time of the bill of rights it was considered pointless to even write. James Madison (who wrote the bill of rights) argued that the Bill of Rights should not even be written, since no one in their right mind would construe the federal government's powers as being able to infringe on those rights which were written in the Bill of Rights. He considered it entirely redundant and it went forward over his protest.

The supreme court carried out the history project you're asking for, and they reached the conclusion that it is and always was intended to be an individual right.

Edit:

I'm reading through it and I got only part way into the very first section - the grammatical analysis - and honestly you cannot help but come to their conclusion. Not only was this a common and non-limiting drafting technique at the time, it also amounts to a basic logic operation If A Then B. If militia then right to bear arms. But it is well known and understood that it is a logical fallacy (I think it's called denying the antecedent) to then conclude Not A then not B. B is not dependent on A, A is dependent on B. Not B implies not A. Not A does not imply not B.

Anyway, they go into so much extraneous depth in analyzing that clause (well beyond what I just wrote above), there seems to be no doubt.

Edit 2: Page 7 is also equally devastating... and so far this is just interpreting the phrase based on the words written and the document itself.


Edit 3: I do love this opinion. It's so unbelievably thorough. Watch how they destroy this dumb argument:




Edit 4: Oh man, I forgot how good this was.



Oh you supreme court justices, so witty.


Edit 5:

Oh man, page 15, using their own rationale against them.

Edit 6:

Ok, I have to hang it up for now at page 19 and get back to work. What a fantastic read! Thanks for dragging me back into it, it had been years since i had read this and it is wonderful.

Edit 7:

I cheated... so much for the NRA!



Edit 8:

Militia is a force of individuals which can oppose a standing army to prevent tyranny. It is not the standing army itself, it is the citizenry.




Edit 9:

And of course, the oppositions argument is carried through it its contradictory nonsensical conclusion here:



You see how it falls apart so pathetically.

Edit 10:

Ok I have to work again after this. But first... pages 27 through 30 go through a lengthy discussion of various state constitutions which enshrine an individual right to bear arms for use on their own lands and for their own purposes. And you're thinking to yourself the whole time "ok but honestly the federal constitution doesn't have to be the same, why are we talking about the state constitutions then?". But of course the opinion has the perfect answer to that question waiting at the conclusion. This quote has less sting to it if you haven't read the leadup to it, but I didn't feel like posting page and after page of the opinion.



Yes, of course. It would be out of left field for it to mean something else given the entire context of everything that was known and said at the time.


Edit 11:

So much for the NRA! Apparently the NRA means some dude in 1825 whose opinion jived with the legal scholars at the time and writings of the people who actually codified the 2nd amendment at the time.




And of course this part



They're beating a dead horse here. But I love that they let the beating continue, because it's such an important question. Yes, this is the 20th time they've killed the militia interpretation, but this particular instance is also persuasive.


I like this bit too



Edit 12:

I'm reminded of the moron in the youtube video saying that nobody before the NRA thought that the 2nd amendment was an individual right... seems that it was the other way around, almost I everyone did.





I'm just quoting the whole thing at this point. I'll try to post less.

pages 44-47 are equally devastating to the comment about the NRA. And show people in the mid 1800s explaining why the "militia" bit is not limiting.

Edit 13:

Ok I made it to page 54 and i have to quit. They're moving on to what the 2nd amendment doesn't cover, and it's quite significant. But it's somewhat off-topic for the question at hand. So I think this is the last edit to this marathon post.

5-4 ruling in conservative leaning Supreme Court. You seem to portray it as a landslide and logical ruling. Which it wasnt. Before Heller SCOTUS never defined the 2nd amendment as an individual right to keep and bear arms.

The text:

"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."

This is one sentence. It defines that arms are neccessary to form a well regulated Militia, that in turn is neccessary to the security of a free state. The whole purpose of the amendment was to protect the states and to prevent tyrannical governments (like the british empire) to disarm and oppress them.

Dissent of the opposing 4 SCOTUS:

"The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

If the purpose of the second amendment was to give individuals the right to keep and bear arms, outside the context of a well regulated militia. Why wasnt it written clearly like it was defined in the declaration of rights of Pensylvania and vermont

"The parallels between the Second Amendment and these state declarations, and the Second Amendment ’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias."

If the second protected the individual rights to keep and bear arms for hunting and selfdefence why wasnt it defined as in declaration of right of Pensylvania and Vermont.

" In 1901 the President revitalized the militia by creating “ ‘the National Guard of the several States,’ ” Perpich, 496 U. S., at 341, and nn. 9–10; meanwhile, the dominant understanding of the Second Amendment ’s inapplicability to private gun ownership continued well into the 20th century. The first two federal laws directly restricting civilian use and possession of firearms—the 1927 Act prohibiting mail delivery of “pistols, revolvers, and other firearms capable of being concealed on the person,” Ch. 75, 44 Stat. 1059, and the 1934 Act prohibiting the possession of sawed-off shotguns and machine guns—were enacted over minor Second Amendment objections dismissed by the vast majority of the legislators who participated in the debates.37 Members of Congress clashed over the wisdom and efficacy of such laws as crime-control measures. But since the statutes did not infringe upon the military use or possession of weapons, for most legislators they did not even raise the specter of possible conflict with the Second Amendment ."

at the start of the 20th century the dominant opinion was, that gun restriciton laws were not infringing on the second amendment.

"after reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U. S., at 178."

I highlighted the "unanimously" . the Miller courtcase also expressively stated that the amendment did not protect sawed-off shotguns because they were not “ordinary military equipment" and more importantly restricitve federal and state laws did not ingringe the second amendment.

To support his point, Stevens also looked to debates during the ratification of the amendment, where discussions of the militia focused on military service instead of individual ownership.

“The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger,”

So how did RBG think about the case:

“If the court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new,” she said. “It gave a qualified right to keep and bear arms, but it was for one purpose only — and that was the purpose of having militiamen who were able to fight to preserve the nation.”

“The Second Amendment has a preamble about the need for a militia … Historically, the new government had no money to pay for an army, so they relied on the state militias. The states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment.”

There is no basis in the claim that the purpose of the complete second amendment was to protect the individuals right to keep and bear arms for and individuals self-protection. Just humor me and try to see within the context of the timeframe it was written. Can you really say with 100% confidence this amendment was added to give individuals rights to keep and bear arms outside the primary purpose to preven the government disarming and weakening states. Right after a civil war? The government was not stable and had much more dessidents at the time. This amendment was to give the states the peace of mind that it would be illegal for the federal government to disarm individual states for the purpose of tiranny.

The definition of tyranny:

TYRANT, government. The chief magistrate of the state, whether legitimate or otherwise, who violates the constitution to act arbitrarily contrary to justice. Toull. tit. prel. n. 32.
2. The term tyrant and usurper, are sometimes used as synonymous, because usurpers are almost always tyrants; usurpation is itself a tyrannical act, but properly speaking, the words usurper and tyrant convey different ideas. A king may become a tyrant, although legitimate, when he acts despotically; while a usurper may cease to be a tyrant by governing according to the dictates of justice.
3. This term is sometimes applied to persons in authority who violate the laws and act arbitrarily towards others. Vide Despotism.

To my opinion the amendment has no real purpose in the context of modern times. Human rights are much better defined and guarded then during the time of the writing of the second amendment.

Edit1 :

To be clear I respect the laws of your country, however why are common sense background checks, laws related to gunrestriction blocked by the conservatives everytime? Even the laws that the majority of the US citizens and conservatives support? The NRA has everything to do with that. If the respublican really did what their voters would want, federal gunlaws requiring backgroundchecks would have been passed a long time ago.

Edit 2:

What if gunlaws go in effect and that you are required to obtain a license within a defined period of transitional time and register your guns. You require to apply for a license at a local police station, undergo a more extensive backgroundcheck, undergo a training course and test, registering your guns with the police and then you are free to keep your arms.

Not following the new law would mean fining and confiscation, when it is known you own a gun, untill you obtain a license and register the guns.

 

[Danoff]

5-4 ruling in conservative leaning Supreme Court. You seem to portray it as a landslide and logical ruling. Which it wasnt. Before Heller SCOTUS never defined the 2nd amendment as an individual right to keep and bear arms.

It was. The majority opinion is inescapable, and exposes the minority opinion in horrific fashion. It's a landslide.

The text:

"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."

This is one sentence. It defines that arms are neccessary to form a well regulated Militia, that in turn is neccessary to the security of a free state. The whole purpose of the amendment was to protect the states and to prevent tyrannical governments (like the british empire) to disarm and oppress them.

This is actually stated in the majority opinion, that the purpose of the amendment (the reason that the natural right was codified in the constitution), was to prevent tyrannical government through disarming of the citizenry. Not all natural rights were codified in the constitution. The framers didn't think it was necessary, Madison didn't think any of them were necessary. He was wrong.

If the purpose of the second amendment was to give individuals the right to keep and bear arms, outside the context of a well regulated militia. Why wasnt it written clearly like it was defined in the declaration of rights of Pensylvania and vermont
...
If the second protected the individual rights to keep and bear arms for hunting and selfdefence why wasnt it defined as in declaration of right of Pensylvania and Vermont.

As explained in the majority opinion, it was very clearly written. It was written in reference to a pre-existing right, and established one purpose (one, not the only) for codifying that pre-existing right.

at the start of the 20th century the dominant opinion was, that gun restriciton laws were not infringing on the second amendment.

Gun restriction laws still do not always infringe the second amendment. And that was the finding of the majority opinion as well.

I highlighted the "unanimously" . the Miller courtcase also expressively stated that the amendment did not protect sawed-off shotguns because they were not “ordinary military equipment" and more importantly restricitve federal and state laws did not ingringe the second amendment.

The majority opinion agrees with that interpretation and did not overturn it with DC v Heller. They even expressly address it with a particular discussion of Miller.

To support his point, Stevens also looked to debates during the ratification of the amendment, where discussions of the militia focused on military service instead of individual ownership.

This was addressed, at length, in the majority opinion.

So how did RBG think about the case:

The majority adopted RBG's definitions of "bear arms" (look for the smiley face in my previous post).

There is no basis in the claim that the purpose of the complete second amendment was to protect the individuals right to keep and bear arms for and individuals self-protection.

I quoted you excerpts from a treatise on the basis, and a link to the whole essay.

Just humor me and try to see within the context of the timeframe it was written. Can you really say with 100% confidence this amendment was added to give individuals rights to keep and bear arms outside the primary purpose to preven the government disarming and weakening states.

Eh... 99% confidence.

Right after a civil war? The government was not stable and had much more dessidents at the time. This amendment was to give the states the peace of mind that it would be illegal for the federal government to disarm individual states for the purpose of tiranny.

That was a stated purpose, which was not limiting, in the "prefatory" clause.

To my opinion the amendment has no real purpose in the context of modern times.

Self-defense. Which is actually the same purpose it had at ratification.

Human rights are much better defined and guarded then during the time of the writing of the second amendment.

Maybe. But it doesn't obviate the need for self-defense.

To be clear I respect the laws of your country, however why are common sense background checks, laws related to gunrestriction blocked by the conservatives everytime? Even the laws that the majority of the US citizens and conservatives support? The NRA has everything to do with that. If the respublican really did what their voters would want, federal gunlaws requiring backgroundchecks would have been passed a long time ago.

The 2nd amendment is not in the way of background checks. If anything, the majority DC v Heller decision bolsters your argument here. Your "militia" argument is dead 100 times over.

 

[PocketZeven]

Your "militia" argument is dead 100 times over.

Just ignoring the dissenting opinion, because of a ruling that lost by 1 vote does not mean it is dead 100 times over. There is not other reason to include a well regulated militia, necessary for the security of a free state in the same sentence. Much clearer would have been for example if the right to keep and bear arms, necessary for self protection/preservation shall not be infringed. Which were much clear defined in state bill or rights at the time.

Previous rulings have defined within that context back and forth and hardly 100 times over.

in 1868 North Carolina Constitution stated

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; and, as standing armies in time of peace are dangerous to liberty, they ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power

Arkansas:

"That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms."

source: https://en.wikipedia.org/wiki/List_of_firearm_court_cases_in_the_United_States#Salina_v._Blaksley

Even if I translate it in dutch The whole sentence has context with each other. If it was an individuals right. The right to keep and bear arms shall not be infringed would have been enough.

"Een goed opgeleiden militie, nodig voor de veiligheid van een vrije staat, het recht van de mensen om wapens te houden, zal geen inbreuk op worden gemaakt."

But even if the I would agree with your opinion, would a requirement of a license and registration be infringing on the second amendment?

edit:
Also people seem to interpret the 2nd amendment as the "right of self defense", which it isnt.

 

[Eunos_Cosmo]

Its pretty clear, considering the context at the time of writing, that the intent of the 2nd amendment was to provide a civilian militia because the founders considered a standing army of the state a threat to democracy. It set up a limit on the government to not prohibit the organization of said militia.

The fact that we have a vast standing army pretty much invalidates (or at least undermines) the 2nd amendment wholesale. It really should be repealed and rewritten with a narrower and more clearly defined scope. I think it probably will be at some point in the next few decades.

 

[Blood Eagle]

We have the right to form militias. We have the right to keep and bear arms.

 

[Eunos_Cosmo]

We have the right to form militias. We have the right to keep and bear arms.

Unless you live in Wyoming. Its clear nobody cares about the militia right anymore.

 

[Rallywagon]

We have the right to form militias. We have the right to keep and bear arms.

This is how I understand the second. Since none of the founders were illiterate, the use of a comma delineates a separate idea. A well regulated militia is needed for the security of a free state comma (new idea) the right of the people to keep and bear arms comma (new idea) shall not be infringed.
The Gov cannot infringe on the right of individuals to form a militia, nor infringe on the right of the people to keep and bear arms.

 

[Blood Eagle]

This is how I understand the second. Since none of the founders were illiterate, the use of a comma delineates a separate idea. A well regulated militia is needed for the security of a free state comma (new idea) the right of the people to keep and bear arms comma (new idea) shall not be infringed.
The Gov cannot infringe on the right of individuals to form a militia, nor infringe on the right of the people to keep and bear arms.

This is also my understanding and yes, commas make the difference.

 

[Eunos_Cosmo]

Original Text: “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.”

How they should have written it (and my thought on its intent): “A well-regulated Militia, being necessary to the security of a free State (ie: the right of the people to keep and bear Arms) shall not be infringed.”

To paraphrase "A well-regulated militia (see disambiguation*) shall not be infringed."
*A well regulated militia is necessary to the security of a free state and is made up of civilians bearing arms

It's not a separate idea, but a clarification of what the first sentence means - but only as applied to the primary purpose.

Anyways, that's my take. Obviously the supreme court disagrees.

 

[Danoff]

Just ignoring the dissenting opinion, because of a ruling that lost by 1 vote does not mean it is dead 100 times over.

Indeed, that has nothing to do with it. It's dead 100 times over because the interpretation that it is limited by that clause is ridiculous due to 100 different arguments. It's dead 100 times over because it's not correct. Has nothing to do with agreement or disagreement.

There is not other reason to include a well regulated militia, necessary for the security of a free state in the same sentence.

Except for the majority opinion within DC v Heller explains this, in painstaking detail, multiple different ways. Yes it was important to them to include the clause even though it doesn't limit the rest.

Much clearer would have been for example if the right to keep and bear arms, necessary for self protection/preservation shall not be infringed. Which were much clear defined in state bill or rights at the time.

It's perfectly clear as written.

But even if the I would agree with your opinion, would a requirement of a license and registration be infringing on the second amendment?

Not inherently no. Again, this discussed in DC v Heller - the restrictions on what the 2nd amendment applies to.

Also people seem to interpret the 2nd amendment as the "right of self defense", which it isnt.

It exists because of a right of self defense.

Its pretty clear, considering the context at the time of writing, that the intent of the 2nd amendment was to provide a civilian militia because the founders considered a standing army of the state a threat to democracy. It set up a limit on the government to not prohibit the organization of said militia.

The fact that we have a vast standing army pretty much invalidates (or at least undermines) the 2nd amendment wholesale. It really should be repealed and rewritten with a narrower and more clearly defined scope. I think it probably will be at some point in the next few decades.

Original Text: “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.”

How they should have written it (and my thought on its intent): “A well-regulated Militia, being necessary to the security of a free State (ie: the right of the people to keep and bear Arms) shall not be infringed.”

To paraphrase "A well-regulated militia (see disambiguation*) shall not be infringed."
*A well regulated militia is necessary to the security of a free state and is made up of civilians bearing arms

It's not a separate idea, but a clarification of what the first sentence means - but only as applied to the primary purpose.

Anyways, that's my take. Obviously the supreme court disagrees.

The supreme court disagrees for painstakingly carefully written reasons, which destroy your interpretation wholesale. The right is not to a well-regulated militia, there's a whole section in DC v Heller explaining why that would be nonsensical based on Congress's involvement in militia.

 

[PocketZeven]

We have the right to form militias. We have the right to keep and bear arms.

Perhaps. But why would the people have the right to keep and bear arms. Without the first sentence it would leave it too much open for intepretation. All arms? For what purpose? It doesnt say selfdefense, killing, hunting, mass-shooting, targetshooting etc. Arms are used for both offense as defense. If someone steels from you are you proteted to use that gun to shoot and kill that person? If I feel bullied by someone can I go to his house and use my gun to threaten him?

But if you do include the first sentence it would make more sense too me. The right to keep and bear arms for the purpose of well regulated militia, essential for the security of a state will not be infringed. It also makes very much sense why they would add it in the era it was written.

edit:

It exists because of a right of self defense.

The supreme court disagrees for painstakingly carefully written reasons, which destroy your interpretation wholesale. The right is not to a well-regulated militia, there's a whole section in DC v Heller explaining why that would be nonsensical based on Congress's involvement in militia.

Where is the right to selfdefense stated in the 2nd amendment? It would have clearly stated it as the penselvania and vermont declaration of rights.

What if it would have said " the right to keep and bear a musket" Great, but for what purpose?

4 of that supreme court equally painstakingly dissents the arguments and that hardly destroys the interpretation. You cannot proclaim one section as the only truth and the dissent as nonsensical if previous rulings have ruled for both interpretations.

 

[Eunos_Cosmo]

The supreme court disagrees for painstakingly carefully written reasons, which destroy your interpretation wholesale. The right is not to a well-regulated militia, there's a whole section in DC v Heller explaining why that would be nonsensical based on Congress's involvement in militia.

I'm not persuaded by Heller.

 

[Danoff]

Where is the right to selfdefense stated in the 2nd amendment? It would have clearly stated it as the penselvania and vermont declaration of rights.

It's all covered in DC v Heller. All of it. Did you read the majority opinion?

THe 2nd amendment is the codification of a pre-existing natural right of self-defense. The reason for the express codification was included in the "prefatory" clause.

What if it would have said " the right to keep and bear a musket" Great, but for what purpose?

"Freedom of speech yes, but for what purpose".

4 of that supreme court equally painstakingly dissents

Not equal... not even close. Did you read it?

the arguments and that hardly destroys the interpretation. You cannot proclaim one section as the only truth and the dissent as nonsensical if previous rulings have ruled for both interpretations.

It's a matter of reading it and figure out that one of them is talking nonsense.

I'm not persuaded by Heller.

I do not understand how that is possible. Did you read it? What is your rebuttal to the 100 different ways they destroy the militia argument?

 

[PocketZeven]

I'm not persuaded by Heller.

I agree. Just have a look at the other amendment in the bill of rights. If the right to keep and bear arms was for the purpose of selfdefense or hunting or both. It would have said so. If you look at the amendments it has the exact same language, but each amendment always clearly seperated by "or", "nor" and "and".

1st
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

If the 2nd amendment was:
“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.”

Wouldnt that have been cut and clear? The absence of "and" seems to me what you and I are agreeing on.

It's all covered in DC v Heller. All of it. Did you read the majority opinion?

THe 2nd amendment is the codification of a pre-existing natural right of self-defense. The reason for the express codification was included in the "prefatory" clause.



"Freedom of speech yes, but for what purpose".



Not equal... not even close. Did you read it?



It's a matter of reading it and figure out that one of them is talking nonsense.



I do not understand how that is possible. Did you read it? What is your rebuttal to the 100 different ways they destroy the militia argument?

"freedom of speech" isnt bound to any purpose. You are free to lie, spread hatespeech, tell the truth etc. So essentially you agree the right to keep and bear arms is not bound to " selfdefense", but also killing. But as the freedom of speech, you are not exempt from its consequences.

I read a big portion. But you and I have both bias and probably read ut much differently.

Its funny, I read Scalia's arguments and I see he is talking nonsense.

Because you dont acknowledge or read the 100 different ways that enforce the argument.

 

[PocketZeven]

double

 

[Danoff]

I agree. Just have a look at the other amendment in the bill of rights. If the right to keep and bear arms was for the purpose of selfdefense or hunting or both. It would have said so. If you look at the amendments it has the exact same language, but each amendment always clearly seperated by "or", "nor" and "and".

It's in DC v Heller (broken record I know). They addressed this. A prefatory clause was common in drafting, and was not limiting of the remainder. You're completely and totally wrong in your assumption that they would have started listing any or all of the purposes such a right (that existed before the constitution) was somehow limited to.

“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.”

That's nonsensical. It's not grammatically correct. You cannot infringe a well regulated militia. You should not trust your grammar analysis of this amendment, and instead read what the experts have written. Luckily they explained it in great detail.

Wouldnt that have been cut and clear? The absence of "and" seems to me what you and I are agreeing on.

The absence of "and" makes it an actual english phrase.

"freedom of speech" isnt bound to any purpose.

It's bound to just as much purpose as the 2nd. And they both have limits.

I read a big portion. But you and I have both bias and probably read ut much differently.

You're trying to deny the antecedent. It's not bias that you're wrong. You're just wrong.

Its funny, I read Scalia's arguments and I see he is talking nonsense.

Because you dont acknowledge or read the 100 different ways that enforce the argument.

The majority opinion did a nice job of dealing with it. Did you have one in particular that you felt was unaddressed?

Edit:

Look... it's the "right" of the people to keep and bear arms. That's the "right" It's written as intended. The well-regulated militia is not the right, it is the introduction to the discussion of the actual right. We do not have a right to a well-regulated militia. A well regulated militia is simply, they assumed, necessary to the security of a free state.

It's very, very unmistakably clear.

 

[TenEightyOne]

If the 2nd amendment was:
“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.”

Wouldnt that have been cut and clear? The absence of "and" seems to me what you and I are agreeing on.

The absence of and is perfectly normal English now as it was then. The first subclause (being necessary to the security of a free state) is attached to the militia to which the following clause is also attached. The directive comes at the end.

The addition of and would be superfluous.

 

[PocketZeven]

It's in DC v Heller (broken record I know). They addressed this. A prefatory clause was common in drafting, and was not limiting of the remainder. You're completely and totally wrong in your assumption that they would have started listing any or all of the purposes such a right (that existed before the constitution) was somehow limited to.



That's nonsensical. It's not grammatically correct. You cannot infringe a well regulated militia. You should not trust your grammar analysis of this amendment, and instead read what the experts have written. Luckily they explained it in great detail.



The absence of "and" makes it an actual english phrase.



It's bound to just as much purpose as the 2nd. And they both have limits.




You're trying to deny the antecedent. It's not bias that you're wrong. You're just wrong.




The majority opinion did a nice job of dealing with it. Did you have one in particular that you felt was unaddressed?

Edit:

Look... it's the "right" of the people to keep and bear arms. That's the "right" It's written as intended. The well-regulated militia is not the right, it is the introduction to the discussion of the actual right. We do not have a right to a well-regulated militia. A well regulated militia is simply, they assumed, necessary to the security of a free state.

It's very, very unmistakably clear.

I get it. But your ignoring the opposing opinions. You only dismiss it, because the the ruling was 5-4. The roles would have been reversed if 1 justice voted the other way. I would perhaps say the exact thing that the ruling already explains how the 2nd amendment should be interpreted.

At the time it was viewed that the right to keep and bear arms was necessary to a well regulated militia that is essential to the defense of a state against tyranny. That is what we firmly agree on. This was added because they feared a tyrannical government could legally disarm people and endanger the freedom of the states. I don’t think militias are necessary to current times. If you take the complete amendment including the proclamation that a well regulated militia is necessary, do you think it is still up to date? Why add that language of militia if that wasn’t specifically written in and needed to be protected?

The whole first two sentences are now completely ignored and the amendment is now interpreted as the right to self defense. Keeping and bear arms are not essential to the right to self defense. The reasoning of the majority ruling is just as much an interpretation as the opposition and far from “clear”. The only people who could clarify are no longer with us.

But the way to move forward is to reinterpret the right to modern times. Just like the human rights movement has done to create a more equal world. Not to ban guns, but to make gunuse more responsible. Self defense is a right, but to keep, use and handle a firearm is a privilege. Guns are not kept and used the same as it was when the amendment was written. There should be a democratic way to achieve that.

Edit:

The absence of and is perfectly normal English now as it was then. The first subclause (being necessary to the security of a free state) is attached to the militia to which the following clause is also attached. The directive comes at the end.

The addition of and would be superfluous.

Perhaps but all the other amendments in the bill of rights do use “and”, “or”,”nor”. I am no linguist, but if the right to bear arms was an individual right, then why add the first part? If it was intended to protect the individuals right, then why didn’t they define it so. Legal language existed in the examples of the declaration of rights I quoted of Vermont and Pensilvania.

 

[TenEightyOne]

I get it. But your ignoring the opposing opinions. You only dismiss it, because the the ruling was 5-4. The roles would have been reversed if 1 justice voted the other way. I would perhaps say the exact thing that the ruling already explains how the 2nd amendment should be interpreted.

The majority doesn't matter, the prevailing decision is the one that gets handed down in law. Whether we agree or not it's useless to say "ah, but the law could have been interpreted differently". It ultimately wasn't.

 

[PocketZeven]

The majority doesn't matter, the prevailing decision is the one that gets handed down in law. Whether we agree or not it's useless to say "ah, but the law could have been interpreted differently". It ultimately wasn't.

I understand that precedent. But it doesn’t mean the discussion is said and done. There are many laws that still exist that are not of this time and outdated. It’s only logical to hold laws to the context of the present and future. That was essentially exactly why these amendments were added at that particular time and era. I truly believe, that without the NRA lobby the ruling would have been different and common sense federal laws concerning gun registration and background checks would have been in effect.

 

[Danoff]

I get it. But your ignoring the opposing opinions. You only dismiss it, because the the ruling was 5-4. The roles would have been reversed if 1 justice voted the other way. I would perhaps say the exact thing that the ruling already explains how the 2nd amendment should be interpreted.

At the time it was viewed that the right to keep and bear arms was necessary to a well regulated militia that is essential to the defense of a state against tyranny. That is what we firmly agree on. This was added because they feared a tyrannical government could legally disarm people and endanger the freedom of the states. I don’t think militias are necessary to current times. If you take the complete amendment including the proclamation that a well regulated militia is necessary, do you think it is still up to date? Why add that language of militia if that wasn’t specifically written in and needed to be protected?

The whole first two sentences are now completely ignored and the amendment is now interpreted as the right to self defense. Keeping and bear arms are not essential to the right to self defense. The reasoning of the ruling is just as much an interpretation as the opposition and far from “clear”. The only people who could clarify are no longer with us. But the way to move forward is to reinterpret the right to modern times. Just like the human right movement has done to create a more equal world. Not to ban guns, but to make gun use more responsible. Self defense is a right, but to keep, use and handle a firearm is a privilege. Guns are not kept and used the same as it was when the amendment was written.

The reasoning is more similar than you give it credit for. The 2nd amendment refers to what the supremes call an "ancient right" or natural right. That's why the amendment wasn't written to say "humans have a right to bear arms". It was written "the right to keep and bear arms shall not be infringed". It establishes a pre-existing right, a right that exists in the absence of the constitution, an ancient or natural right of man. The 2nd amendment was written as a way of stating the obvious - that we're not to infringe that existing right.

The government at the time was also very much concerned that congress would develop a standing army or "select militia", and that the standing army could be used to establish tyrannical rule. That's why they stated the obvious and wrote down that ancient right - because they were expressly worried about tyranny. A militia, of course, is not an army, it is the citizenry of the US. Brought up to modern day English, it might read "citizens being proficient at using firearms being necessary to the security of a free state, the right to keep and bear arms shall not be infringed". And I'm not sure you can so easily dismiss that as irrelevant today.

So on to guns. DC v Heller expressly states that the 2nd amendment does not provide a right to all firearms. The 2nd amendment doesn't even say "firearms" or "guns". It says "arms", which is significantly more general.

What constitutes infringement of the right to bear arms? Well, we know that lots of things don't based on supreme court interpretation. Denying felons firearms doesn't. Background checks don't. Licenses for automatic weapons don't. California's assault weapon rules don't. Classifying bump stocks with automatic weapons probably doesn't. Restricting certain sniper rifle technology doesn't. Restricting or licensing the use of certain explosives, doesn't. Rendering automatic traps in your home (such as to trigger a firearm doesn't).

The 2nd amendment is not in the way of basically anything you have proposed. Except possibly a NZ style ban of all semi-auto rifles. Which you haven't mentioned in quite some time. Most of what you say I think is consistent with 2nd amendment under DC v Heller.

 

[PocketZeven]

The reasoning is more similar than you give it credit for. The 2nd amendment refers to what the supremes call an "ancient right" or natural right. That's why the amendment wasn't written to say "humans have a right to bear arms". It was written "the right to keep and bear arms shall not be infringed". It establishes a pre-existing right, a right that exists in the absence of the constitution, an ancient or natural right of man. The 2nd amendment was written as a way of stating the obvious - that we're not to infringe that existing right.

The government at the time was also very much concerned that congress would develop a standing army or "select militia", and that the standing army could be used to establish tyrannical rule. That's why they stated the obvious and wrote down that ancient right - because they were expressly worried about tyranny. A militia, of course, is not an army, it is the citizenry of the US. Brought up to modern day English, it might read "citizens being proficient at using firearms being necessary to the security of a free state, the right to keep and bear arms shall not be infringed". And I'm not sure you can so easily dismiss that as irrelevant today.

So on to guns. DC v Heller expressly states that the 2nd amendment does not provide a right to all firearms. The 2nd amendment doesn't even say "firearms" or "guns". It says "arms", which is significantly more general.

What constitutes infringement of the right to bear arms? Well, we know that lots of things don't based on supreme court interpretation. Denying felons firearms doesn't. Background checks don't. Licenses for automatic weapons don't. California's assault weapon rules don't. Classifying bump stocks with automatic weapons probably doesn't. Restricting certain sniper rifle technology doesn't. Restricting or licensing the use of certain explosives, doesn't. Rendering automatic traps in your home (such as to trigger a firearm doesn't).

The 2nd amendment is not in the way of basically anything you have proposed. Except possibly a NZ style ban of all semi-auto rifles. Which you haven't mentioned in quite some time. Most of what you say I think is consistent with 2nd amendment under DC v Heller.

I don’t disagree there is overlap. But why is it still so easy to obtain and misuse guns in the USA? If the the Hellercase does not limit laws for licensing for all firearms (not only automatic) then why prevent it from happening. Easy acces to high risk tools, increases the chance of misuse. There should be laws in place to make sure that responsible people obtain these tools, responsibly use these tools and face consequences when misused. In some states it’s more difficult to vote, then to obtain a firearm.

 

[Northstar]

There should be laws in place

There are, but they don't mean much when they don't bother to enforce them and refuse to close loopholes like the gun show one.

 

[Danoff]

I don’t disagree there is overlap. But why is it still so easy to obtain and misuse guns in the USA? If the the Hellercase does not limit laws for licensing for all firearms (not only automatic) then why prevent it from happening. Easy acces to high risk tools, increases the chance of misuse. There should be laws in place to make sure that responsible people obtain these tools, responsibly use these tools and face consequences when misused. In some states it’s more difficult to vote, then to obtain a firearm.

Political will.

 

[Famine]

Its pretty clear, considering the context at the time of writing, that the intent of the 2nd amendment was to provide a civilian militia because the founders considered a standing army of the state a threat to democracy. It set up a limit on the government to not prohibit the organization of said militia.

The fact that we have a vast standing army pretty much invalidates (or at least undermines) the 2nd amendment wholesale.

This is a weird thought process.

If the 2A is predicated on the notion that a standing army of the state is a threat to democracy, how is it invalidated (or undermined) by an even larger standing army? Surely it just makes the threat - and thus the necessity for civilians to retain the right to bear arms - greater.