Guns.. for the one millionth time

[freethinker44]

The argument that I am making is that it is not two separate sentences, they do stand together, however the reference of the right to bear arms, means that it shouldnt' be infringed on in case the need for a well regulated milita was to arise.

True, and that may even be what the founders meant by it, but even that is a small interpretation. And any interpretation can be reinterpreted.

 

[9-10ths_Penguin]

It is amazing the means people will go to in order to try and make their arguments.


opcorn:
Let the semantics wars continue!

Don't you think that the question of what the law actually says is relevant to how it should be interpreted?

 

[freethinker44]

BTW: as I noted in my post just now, there are two different versions of the 2nd amendment and they have commas in different places. The version you guys are discussing is the one passed by Congress; the version passed by the states has more commas.

I'd say that if the different punctuation changes the meaning, then the Second Amendment was never fully ratified.

No, the version ratified by the states has only one comma.

There are two principle versions of the Second Amendment: one version was passed by Congress, while the other is found in the copies distributed to each individual state and later ratified by them

As passed by the Congress: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.

As ratified by the States: 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 one ratified by the states is the official version, since only states can ratify amendments, congress merely suggests them.

2nd Amendment

 

[CMike]

Yes, the people in a well regulated milita have the right to bear arms. That's all the second amendment says, the rest is interpreted by the supreme court and they can over turn their rulings any time. Heck, sometimes sitting judges will even over turn rulings that they themselves ruled on.

The Supreme Court's job is not to write or unwrite law.

It''s to interpret law when it's murky based on the intention of the authors.

 

[CMike]

I guess it's dependent on how you read the sentence.

Can the first part stand on it's own as a complete sentence without the second part? The use of a comma seems to indicate No to me. However it can also mean that people aren't part of a militia, but if the situation was to be called for a milita (well regulated to be formed), then the people should have the right to bear their own weapons. Which I think at the time it would be far cheaper for people to have their own weapons then have the government pay to have them issued?

It doesn't say that, does it?

 

[CMike]

Actually, with the (admittedly clunky) use of commas in the version that was ratified by the states ("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"), it's the well regulated militia that shall not be infringed, not the people's right to bear arms.

It doesn't say that, does it?

 

[freethinker44]

The Supreme Court's job is not to write or unwrite law.

It''s to interpret law when it's murky based on the intention of the authors.

The supreme courts job is to interpret the constitution. Congress writes it, the supreme court decides what it means. Part of that whole separation of powers thing. And actually, the supreme court can unwrite a law if they feel the law violates the constitution.

 

[9-10ths_Penguin]

It doesn't say that, does it?

It does, actually.

And as this article touches on:

- the 18th century understanding of the term "bear arms" meant something like "serve as a soldier", not "carry around a gun".

- the Supreme Court upheld the Second Amendment as protecting a collective right, not an individual one, until the 1960s.

 

[9-10ths_Penguin]

The Militia is not the Army, the Militia has always been with the people. No branch of the Government had the power to create the Militia. Therefore, as per the residual powers the power belongs to the people or to the individual states.

Actually, the Constitution itself puts the responsibility for the militia on the federal government.

In Article I, Section 8:

The Congress shall have Power [...]

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Whatever one thinks "the Militia" means, if they're talking about something that:

- isn't subject to the federal government's orders
- isn't organized, armed, or disciplined by the federal government
- doesn't have officers appointed by state governments, or
- isn't trained by state governments according to rules established by the federal government

... then whatever it is they're talking about isn't "the Militia" referred to in the US Constitution.

 

[9-10ths_Penguin]

No, the version ratified by the states has only one comma.

I thought I was sure, but not I'm not. I've found some sources that say the version ratified by the states had the three commas; your source says that it only had one... and now I've found other sources that say that the punctuation varied widely and nobody's really sure who ratified which version.

the one ratified by the states is the official version, since only states can ratify amendments, congress merely suggests them.

2nd Amendment

Unless the amendment is brought forward at a constitutional convention (which the Second Amendment wasn't), it needs to be ratified by both Congress and the states.

 

[freethinker44]

it needs to be ratified by both Congress and the states.

It's not ratified by Congress, it is proposed by them. I guess you can call that process a ratification by Congress, but since Congress has no real authority past proposing the amendment, there is really no need. The final authority on whether or not an amendment becomes part of the constitution is when 3/4 of the states ratify it. So whatever version Congress is mulling over is irrelevant because it is the version the states ratify that becomes law.

http://www.archives.gov/federal-register/constitution/

 

[9-10ths_Penguin]

It's not ratified by Congress, it is proposed by them. I guess you can call that process a ratification by Congress, but since Congress has no real authority past proposing the amendment, there is really no need. The final authority on whether or not an amendment becomes part of the constitution is when 3/4 of the states ratify it. So whatever version Congress is mulling over is irrelevant because it is the version the states ratify that becomes law.

Constitutional Amendment Process

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

"In either case, shall be valid"... i.e. if it meets neither case, the amendment isn't valid. It didn't meet the convention case (since there was no convention), so if it doesn't meet the other case (i.e. it's passed by a 2/3 majority in both houses of Congress), the it doesn't meet any of the available cases.

The Constitution provides no mechanism for the states alone to amend the Constitution without either Congress ratifying the amendment first, or a constitutional convention.

 

[Curious George]

It does, actually.

And as this article touches on:

- the 18th century understanding of the term "bear arms" meant something like "serve as a soldier", not "carry around a gun".

The Majority in Heller discusses the 18th century understanding of "keep and bear Arms," while the dissent and your author, who wrote an amicus, point to the military aspect of the phrase, it most certainly did not mean to serve as a soldier. I would agree that the choice of the phrase represents a military purpose which would imply that the "preforatory or Absolute clause" (depending on your angle) does limit the scope.

- the Supreme Court upheld the Second Amendment as protecting a collective right, not an individual one, until the 1960s.

While lower courts have indeed held that the 2nd amendment is a collective right, the Supreme court in Heller acknowledged it was an individual right stating:

a. "Right of the People." The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body...
We start therefore with a strong presumption that the second Amendment right is exercised individually and belongs to all Americans.

​

District of Columbia v. Heller, 554 U.S. 570, 579 (2008)

Even the Dissenting Justices Agree that it is an individual right!!!

"The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right." Surely it protects a right that can be enforced by individuals." District of Columbia v. Heller 554 U.S. 570, 636 (2008)

Furthermore, the 1876 case demonstrates that the second amendment does represent an individual right but it does not protect it.

"the Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
​

United States v. Cruikshank, 92 U.S. 542 (1876) (emphasis and bold added)

 

[Curious George]

Actually, the Constitution itself puts the responsibility for the militia on the federal government.

I hope you realize that the part of the Constitution which you quoted specifically states "the calling forth" this is in direct contrast to other armed forces which congress is given the power to establish. The standard is that where there is not an expressly granted power in the constitution then that power does not exist to the federal government.

 

[Curious George]

Actually, the Constitution itself puts the responsibility for the militia on the federal government.

In Article I, Section 8:


Whatever one thinks "the Militia" means, if they're talking about something that:

- isn't subject to the federal government's orders
- isn't organized, armed, or disciplined by the federal government
- doesn't have officers appointed by state governments, or
- isn't trained by state governments according to rules established by the federal government

... then whatever it is they're talking about isn't "the Militia" referred to in the US Constitution.

I can offer former statutes that demonstrate that the Militia was not armed by the Federal government.

The Federal government is given power to call forth the militia, and the president is given power to act as their Commander and Chief.

The states are presumably capable of establishing a militia, regulating a militia in any way they please with accordance to their state constitutions.

 

[freethinker44]

The Constitution provides no mechanism for the states alone to amend the Constitution without either Congress ratifying the amendment first, or a constitutional convention.

We're just arguing semantics here. We're both saying the same thing, only you are putting more emphasis on the role of Congress than I am. I didn't say the states can amend the constitution alone, I said Congress proposes it, the states ratify it. Obviously if Congress doesn't propose it, that is agree by a 2/3 majority that the constitution should be amended and what that amendment should be, than the states have nothing to ratify. Congress can't sign amendment into the constitution, only the states can, but the states can't propose an amendment. I guess they can ask Congress to propose an amendment, but ultimately that is the decision of Congress, just as ultimately the ratification of the amendment is left up to the states.

 

[9-10ths_Penguin]

I hope you realize that the part of the Constitution which you quoted specifically states "the calling forth" this is in direct contrast to other armed forces which congress is given the power to establish. The standard is that where there is not an expressly granted power in the constitution then that power does not exist to the federal government.

I'm not sure how that matters in this context. However "the Militia" came into existence, the Constitution gives Congress the right to regulate and control it. I hope you'd agree with me that no court would uphold the right of Congress to discipline and regulate the entire people of the United States, so it stands to reason that any interpretation of the Second Amendment that hinges on construing "the Militia" as the entire people of the United States doesn't actually work.

 

[9-10ths_Penguin]

We're just arguing semantics here. We're both saying the same thing, only you are putting more emphasis on the role of Congress than I am. I didn't say the states can amend the constitution alone, I said Congress proposes it, the states ratify it. Obviously if Congress doesn't propose it, that is agree by a 2/3 majority that the constitution should be amended and what that amendment should be, than the states have nothing to ratify. Congress can't sign amendment into the constitution, only the states can, but the states can't propose an amendment. I guess they can ask Congress to propose an amendment, but ultimately that is the decision of Congress, just as ultimately the ratification of the amendment is left up to the states.

Here's the issue that I'm getting at: if the version of the Second Amendment that the states ratified is different in meaning than the one that Congress proposed, then we do have a situation where the states ratified an amendment that Congress didn't propose. I'm saying that in such a situation, the amendment is invalid.

 

[Curious George]

I'm not sure how that matters in this context. However "the Militia" came into existence, the Constitution gives Congress the right to regulate and control it. I hope you'd agree with me that no court would uphold the right of Congress to discipline and regulate the entire people of the United States, so it stands to reason that any interpretation of the Second Amendment that hinges on construing "the Militia" as the entire people of the United States doesn't actually work.

Your response suggested that I in some way spoke in error. I did not. By discipline you mean what exactly? I am well aware that congress has the power to provide for organizing, arming, and disciplining, the Militia- but what does that mean. There was a time in which some states declared that all "able-bodied" men were a part of the militia. So would congress uphold and regulate a provision for the discipline or organization of all able bodied men? The answer is it depends on the provision. If each respective state declared that all the population were now a part of the Militia then the federal government would not have the power to change that. Moreover, since the residual powers rest in the states and the people, unless the constitution of the state says otherwise the people do have the power to establish their own militia. So, given the correct constants the entire people of the respective states could constitute a militia. So, I guess the answer is- it depends on state law.

Indeed, extensive as their power over the militia is, the United States are obviously intended to be made in some measure dependant upon the states for the aid of this species of force. For, if the states will not officer or train their men, there is no power given to Congress to supply the deficiency.
​

Houston v. Moore, 18 U.S. 1, (1820)

If on the other hand the state drafts all persons into the Militia then the whole of the state population can be subject to the U.S. government acting within the Militia Clauses.

But even further, Congress' power to raise armies is plenary. So, Technically the government can through mandatory military service discipline, organize, and regulate all citizens.

 

[Curious George]

I'm not sure how that matters in this context. However "the Militia" came into existence, the Constitution gives Congress the right to regulate and control it. I hope you'd agree with me that no court would uphold the right of Congress to discipline and regulate the entire people of the United States, so it stands to reason that any interpretation of the Second Amendment that hinges on construing "the Militia" as the entire people of the United States doesn't actually work.

I am not sure if you know that I do not consider all people to be part of the militia. Nor, do I personally read the second amendment as granting a "right" of gun ownership. I would suggest that the 2nd amendment was designed to prohibit the government from sidestepping the states by infringing upon a the people's rights to keep and bear arms. It is essential to understand that a citizen of the U.S. has both State and Federal citizenship. Thus, If the state wanted to declare that all people within the state own a gun, and the federal government made it illegal to own a gun then a conflict would arise. Since the Militia clauses do indeed grant the federal government much power over the Militia, the States would want to protect their own interests for defense against threats both foreign and domestic. Now, since states can not have standing armies in a time of peace, we get the Militia. The Militia is different than an army, as I have said over and over again. A militia is largely composed of citizens.

Strange as it may now seem, the Framers feared that if the militia did not exist to protect state interests, the army might be used by the federal government to oppress the states and their citizens. Thus, Hamilton, in The Federalist No. 29 (along with Madison in The Federalist No. 46), declared that an essential purpose behind the states' reserved authority over the militia was to guard against the dangers of the federal army.

​

Perpich v. United States Dep't of Defense, 1988 U.S. App. (8th Cir. Dec. 6, 1988)

The problem however is that the nationalists wanted to ensure that this force was well trained also. The compromise is what you see in the constitution today. That is a division of power between federal and state and the second amendment.

Thus I believe that gun regulation should be left to the states as it deals directly with the public health and safety which is an area of State Concern. While I agree with the holding in Miller (1939) that the second amendment is linked to the Militia and I believe that the Heller ruling violated Stare Decisis, I do think that Americans have a right to gun ownership that is grounded not in any reading about a militia, but rather is based on self defense. I know many will claim that a gun "increases the risk" of harm to the gun owner, but unfortunately that is a statistical fact which is not a compelling interest to take away an individuals right to protect oneself. If a person wishes to take the statistical risk of increasing the harm in an effort to protect their self when the government bears no duty to protect that individual than it is well within that individuals right to assume that statistical risk (though they should guard against it through training).