My Issue With The 2008 Second Amendment Decision

[Skwim]

The amendment as ratified by the States and authenticated by Thomas Jefferson, the Secretary of State reads as follows:

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

On June 26, 2008, in District of Columbia v. Heller, the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled [5-4 majority] that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense. It also ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.
sourcfe
​

Personally, I feel this is an extremely bad ruling, and here's why, but first bear with me for a moment while I establish a point of grammatical structure.

If I, a swimming coach, said, Because you're a member of the swimming team, your right to go swimming can't be denied by the lifeguards " it means that, being a member of the swimming team you have a right to swim. Now, the very same meaning can be conveyed by reversing the order of the two clauses. "your right to go swimming can't be denied by the lifeguards because you're a member of the swimming team." See what's going on? No matter how you read it, your right to swim hinges on being a member of the team. Not a member? then the lifeguards could well stop you from swimming.

Now, taking a look at the Second Amendment we again read:

"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 reversing the order of the two clauses:

The right of the people to keep and bear arms shall not be infringed because a well regulated militia being necessary to the security of a free state,."
​

Both mean exactly the same thing, but most telling is the "because," in that it more clearly establishes the reason the right of the people to keep and bear arms shall not be infringed. But, what if there is no reason? Not a member of the swimming team, or no necessity for a well regulated militia? Then there's no guarantee you can swim, or any legal reason you have a right to keep and bear arms.

Now here's the kicker: because there is no "well regulated militia" composed of citizens using their own fire arms assembled to "secure a free state," and no foreseeable need for one, no Constitutional right of the people to keep and bear arms exists---or at least, should exist.

In my opinion (I know everyone's been waiting for this ), if you want to claim a Constitutional right to have a firearm, then you darn well better be a member of a well regulated militia that's been organized to secure a free state.

That said, I can only shake my head in disbelief at the court's ruling. And as it stands, the court's ruling treats the 2nd Amendment as simply stating, "the right of the people to keep and bear arms shall not be infringed." The clause "A well regulated militia being necessary to the security of a free state," being immaterial.
.

 

[Debater Slayer]

It has always struck me as a dogmatic and naive idea that constitutions should be clung to as if they were some sort of gospel truth. It doesn't matter what a Founding Father thought over a century ago if it doesn't apply to today's fast-changing world. Constitutions should serve people, not the other way around. If they no longer effectively function to that end, then they need to be changed.

 

[Nakosis]

The amendment as ratified by the States and authenticated by Thomas Jefferson, the Secretary of State reads as follows:

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

On June 26, 2008, in District of Columbia v. Heller, the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled [5-4 majority] that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense. It also ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.
sourcfe
​

Personally, I feel this is an extremely bad ruling, and here's why, but first bear with me for a moment while I establish a point of grammatical structure.

If I, a swimming coach, said, Because you're a member of the swimming team, your right to go swimming can't be denied by the lifeguards " it means that, being a member of the swimming team you have a right to swim. Now, the very same meaning can be conveyed by reversing the order of the two clauses. "your right to go swimming can't be denied by the lifeguards because you're a member of the swimming team." See what's going on? No matter how you read it, your right to swim hinges on being a member of the team. Not a member? then the lifeguards could well stop you from swimming.

Now, taking a look at the Second Amendment we again read:

"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 reversing the order of the two clauses:

The right of the people to keep and bear arms shall not be infringed because a well regulated militia being necessary to the security of a free state,."
​

Both mean exactly the same thing, but most telling is the "because," in that it more clearly establishes the reason the right of the people to keep and bear arms shall not be infringed. But, what if there is no reason? Not a member of the swimming team, or no necessity for a well regulated militia? Then there's no guarantee you can swim, or any legal reason you have a right to keep and bear arms.

Now here's the kicker: because there is no "well regulated militia" composed of citizens using their own fire arms assembled to "secure a free state," and no foreseeable need for one, no Constitutional right of the people to keep and bear arms exists---or at least, should exist.

In my opinion (I know everyone's been waiting for this ), if you want to claim a Constitutional right to have a firearm, then you darn well better be a member of a well regulated militia that's been organized to secure a free state.

That said, I can only shake my head in disbelief at the court's ruling.
.

The 2nd amendment limits Federal intrusion. State intrusion is a different matter.

Is DC a Federal controlled district? Maybe why they couldn't enforce the gun ban?

Could the states make a gun free zone if they wanted to?

 

[Skwim]

The 2nd amendment limits Federal intrusion. State intrusion is a different matter.

Not when it comes to matters of Constitutional guarantees. NO state may violate a constitutionally protected right. Although, it may impose restrictions where necessary, such as on convicted felons or the mentally ill having a right to own a firearm.

Could the states make a gun free zone if they wanted to?

I suppose, as long as it didn't violate a constitutionally protected right.

.

 

[Curious George]

The amendment as ratified by the States and authenticated by Thomas Jefferson, the Secretary of State reads as follows:

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

On June 26, 2008, in District of Columbia v. Heller, the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled [5-4 majority] that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense. It also ruled that two District of Columbia provisions, one that banned handguns and one that required lawful firearms in the home to be disassembled or trigger-locked, violate this right.
sourcfe
​

Personally, I feel this is an extremely bad ruling, and here's why, but first bear with me for a moment while I establish a point of grammatical structure.

If I, a swimming coach, said, Because you're a member of the swimming team, your right to go swimming can't be denied by the lifeguards " it means that, being a member of the swimming team you have a right to swim. Now, the very same meaning can be conveyed by reversing the order of the two clauses. "your right to go swimming can't be denied by the lifeguards because you're a member of the swimming team." See what's going on? No matter how you read it, your right to swim hinges on being a member of the team. Not a member? then the lifeguards could well stop you from swimming.

Now, taking a look at the Second Amendment we again read:

"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 reversing the order of the two clauses:

The right of the people to keep and bear arms shall not be infringed because a well regulated militia being necessary to the security of a free state,."
​

Both mean exactly the same thing, but most telling is the "because," in that it more clearly establishes the reason the right of the people to keep and bear arms shall not be infringed. But, what if there is no reason? Not a member of the swimming team, or no necessity for a well regulated militia? Then there's no guarantee you can swim, or any legal reason you have a right to keep and bear arms.

Now here's the kicker: because there is no "well regulated militia" composed of citizens using their own fire arms assembled to "secure a free state," and no foreseeable need for one, no Constitutional right of the people to keep and bear arms exists---or at least, should exist.

In my opinion (I know everyone's been waiting for this ), if you want to claim a Constitutional right to have a firearm, then you darn well better be a member of a well regulated militia that's been organized to secure a free state.

That said, I can only shake my head in disbelief at the court's ruling.
.

First a point of semantics: The word because creates the contingency. This word is noticeably absent. Certainly the drafters of the constitution were familiar with the word because. Certainly they could have drafted a clause that was contingent on the other, but they did not.

Given the history of the right to bear arms and the constitution of the different states any construction that argues as you do, does so to deliberately misconstrued obvious intent.


While I agree that there are very much collective right arguments that, based on the text and the history of the right to bear arms, challenge whether an individual right exists, one cannot say that on grammar alone no right to keep and bear arms exists. Were we to go on grammar alone, nothing in the text is demonstrative that the purpose set forth is limiting the right which is preserved.

 

[Curious George]

The 2nd amendment limits Federal intrusion. State intrusion is a different matter.

Is DC a Federal controlled district? Maybe why they couldn't enforce the gun ban?

Could the states make a gun free zone if they wanted to?

Something you might find interesting:
Incorporation of the Bill of Rights - Wikipedia

 

[Skwim]

First a point of semantics: The word because creates the contingency. This word is noticeably absent. Certainly the drafters of the constitution were familiar with the word because. Certainly they could have drafted a clause that was contingent on the other, but they did not.

It's clearly implied. If it wasn't, the dependent clause would be meaningless and simply dangle there. And it was because it was left out in the Amendment that I went to the trouble of more clearly showing its meaning by rearranging the clauses.

 

[A Vestigial Mote]

Now, taking a look at the Second Amendment we again read:

"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 reversing the order of the two clauses:

The right of the people to keep and bear arms shall not be infringed because a well regulated militia being necessary to the security of a free state,."
​

Both mean exactly the same thing, but most telling is the "because,"...

I think the first/original statement ends up putting more emphasis on the conclusion: "the right of the people to keep and bear arms shall not be infringed" - and maybe seems just enough disconnected from the starting half of the sentence that it could be presumed that it means that said right simply shall not be infringed for any reason. Sort of along the lines of:

"Since a well regulated militia is necessary to the security of a free state, we will not allow anything to infringe upon the people's right to keep and bear arms."

Though, I suppose, if it had said, instead:

"A well regulated militia being necessary to the security of a free state, and the convenience of being able to hunt with the most advanced technology being a nice-to-have, the right of the people to keep and bear arms shall not be infringed."

it would basically do what you did by adding the "because" - that is, tying the conclusion directly to the reason(s) that conclusion is drawn.

I guess it all boils down to who "the people" are. Are "the people" everyone at large? Or are "the people" the members of a well regulated militia?

 

[sun rise]

The history of gun laws can be "fun" reading.

https://scholarship.law.duke.edu/cg...le.com/&httpsredir=1&article=4825&context=lcp

Firearms and Weapons Legislation up to the Early 20th Century by Mark Frassetto :: SSRN

An example of what was involved with "a well-regulated militia"
New Hampshire
:
1786 N.H. Laws 409, An Act For Forming And Regulating The Militia
Within This State, And ForRepealing All The Laws Heretofore Made For That Purpose, § 7
:
Every Non-Commissioned Officer and Soldier, both in the alarm unit and training band, shall be provided, and have constantly in readiness a good musket, and a bayonet fitted thereto,with a good scabbard and belt, a worm, priming-wire, and brush, a cartridge-box that will hold at least twenty-four rounds . . .

 

[Skwim]

I guess it all boils down to who "the people" are. Are "the people" everyone at large? Or are "the people" the members of a well regulated militia?

Only those who are members of a well regulated militia have the right to keep and bear arms. If it was the right of everyone then the qualifying clause mentioning a well regulated militia becomes superfluous.

.

 

[Brickjectivity]

The terminology expects that the people will be able to form a militia for the defense of the country. It does not mention the professional paid army we have now. At the time of the Revolutionary War the British had a paid, professional army; but the minutemen opposed them using personally owned weapons, removing the unfair burden of taxation without representation and other burdens like having to house British soldiers. This 2nd amendment does not rule out also having a paid professional army, but it provides that citizens have the right to retain the ability to form a militia using our own weapons that we keep ourselves.

 

[Curious George]

It's clearly implied. If it wasn't, the dependent clause would be meaningless and simply dangle there. And being left out in the Amendment is why I went to the trouble of more clearly showing its meaning by rearranging the clauses.

That is not true. A declarative clause may certainly announce purpose without limiting the broader clause. It does not follow that the clause should be limited when there is no wording to indicate such.

 

[Kenny]

The amendment as ratified by the States and authenticated by Thomas Jefferson, the Secretary of State reads as follows:

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

As I read it, it seems like there are two points...

1. the right for a militia
2. the right of the people to keep and bear arms.

IMO as a lay minister attorney

 

[Skwim]

The terminology expects that the people will be able to form a militia for the defense of the country. It does not mention the professional paid army we have now. At the time of the Revolutionary War the British had a paid, professional army; but the minutemen opposed them using personally owned weapons, removing the unfair burden of taxation without representation and other burdens like having to house British soldiers. This 2nd amendment does not rule out also having a paid professional army, but it provides that citizens have the right to retain the ability to form a militia using our own weapons that we keep ourselves.

Actually, the whole Amendment, including the need for a well regulated militia, implies a present need, rather than an ability to form a militia later on if the need arises. What you're suggesting is that the Amendment read:

"Should the need for a well regulated militia being necessary to the security of a free state arise , the right of the people to keep and bear arms shall not be infringed."

.​

 

[`mud]

I'm tired of all this crap, I'm going to go out and shoot a squirrel,
with my AR15, all I need is the tail !

 

[A Vestigial Mote]

Only those who are members of a well regulated militia have the right to keep and bear arms. If it was the right of everyone then the qualifying clause mentioning a well regulated militia becomes superfluous.

.

Except as an unqualified "list" of examples as to why. Granted it is only one item, but the fact that the "because" is missing does somewhat (even if only slightly) leave it open.

Is the "well regulated militia" completely exhaustive of all cases in which it makes sense for "the people" to keep or bear arms?

 

[Revoltingest]

It has always struck me as a dogmatic and naive idea that constitutions should be clung to as if they were some sort of gospel truth. It doesn't matter what a Founding Father thought over a century ago if it doesn't apply to today's fast-changing world. Constitutions should serve people, not the other way around. If they no longer effectively function to that end, then they need to be changed.

Consider what our laws would be like if politicians weren't limited by the Constitution
& Supreme Court. A mere majority in Congress could do as they please. Would you
like the idea of Trump with a Republican majority having this limitless power?
I sure as Hell wouldn't. The Constitution is a difficult thing to change. This is good.

 

[suncowiam]

It has always struck me as a dogmatic and naive idea that constitutions should be clung to as if they were some sort of gospel truth. It doesn't matter what a Founding Father thought over a century ago if it doesn't apply to today's fast-changing world. Constitutions should serve people, not the other way around. If they no longer effectively function to that end, then they need to be changed.

I made the point of this in a different thread towards atheists discussing not with their own opinions but with what's written in the second amendment.

It becomes another debate based on the interpretation of passages which is the exactly same process that theists tend to do with each other.

 

[M83]

I was under the assumption that a "well-regulated militia" was already filled by the National Guard of each state. Maybe I interpreted it wrong. I'm fairly certain the Founding Fathers had no idea what weapon technology was going to become in roughly 150 years time. If people want to exercise their rights let them do it with black powder rifles.

 

[Duke_Leto]

Yes, it can be read as "Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." What it does not say is "The right of the people to keep and bear arms shall not be infringed only if they join a militia." You're reading into it something that doesn't exist.

The amendment exists because of the perceived necessity for the possibility of militias to exist. An effective militia cannot exist if firearms are restricted and the majority of people can't acquire one; therefore, "the right of the people to keep and bear arms shall not be infringed."