My Issue With The 2008 Second Amendment Decision

[Curious George]

You haven't told us why the Framers included the prefatory clause of the amendment. What is its purpose, if the amendment were merely intended to prevent the government from taking away people's guns?

And, if a law such as the DC law, which merely prohibited the registration of a single particular type of gun, the most deadly type of gun, is unconstitutional, then how is it that laws prohibiting individuals to own machine guns and nuclear weapons constitutional?

Well apparently my long winded reply to you here did not post.

That you seem to think that nuclear weapons and guns are regulated for the same reasons is likely a source of the problem.

The purpose of the militia clause was to highlight a reason of the highest importance with regard to the restriction on the government. Nothing in that limits the forbidding of the federal government from infringing on the people's right to bear arms to only that purpose. Indeed, the government shall not infringe on the right of the people to keep and bear arms.

The drafters chose not to indicate a limit on the restriction. They instead associated the necessity of a militia with the right to bear arms. That such a right is associated with a militia in no way limits the restriction however. It certainly does not read the government shall not infringe on the militias right to keep and bear arms, no matter how much you want it to read so.

 

[Walter Bailey]

Well apparently my long winded reply to you here did not post.

That you seem to think that nuclear weapons and guns are regulated for the same reasons is likely a source of the problem.

The purpose of the militia clause was to highlight a reason of the highest importance with regard to the restriction on the government. Nothing in that limits the forbidding of the federal government from infringing on the people's right to bear arms to only that purpose. Indeed, the government shall not infringe on the right of the people to keep and bear arms.

The drafters chose not to indicate a limit on the restriction. They instead associated the necessity of a militia with the right to bear arms. That such a right is associated with a militia in no way limits the restriction however. It certainly does not read the government shall not infringe on the militias right to keep and bear arms, no matter how much you want it to read so.

In viewing this as an independent, individual right you’re ignoring the historical context: in 1789 there was both a large state government, standing militia system and a fear that the new Federal government would establish tyranny. In Federalist 46, Madison tries to allay such fears by pointing out that the states could prevent Federal oppression with their militia units. There was also a fear that the standing militia of the states, which was mostly privately armed, might be disarmed by a would be tyrant, hence the 2d Amendment.

 

[Curious George]

In viewing this as an independent, individual right you’re ignoring the historical context: in 1789 there was both a large state government, standing militia system and a fear that the new Federal government would establish tyranny. In Federalist 46, Madison tries to allay such fears by pointing out that the states could prevent Federal oppression with their militia units. There was also a fear that the standing militia of the states, which was mostly privately armed, might be disarmed by a would be tyrant, hence the 2d Amendment.

I am well aware of the history. My claim was that the intent of the 2nd Amendment was to prevent the federal government from taking weapons away from the people. The history is very clear about this. You can choose to view it from a collectivist perspective, but that is not the same as suggesting that the 2nd Amendment is limited to the militia. The 2nd amendment very clearly was intended to prevent the federal government from taking away weapons from the people.

 

[Walter Bailey]

The Amendment protects the rights of the states to maintain an organized militia by protecting the rights of individuals whose privately owned weapons armed that militia.

 

[Curious George]

The Amendment protects the rights of the states to maintain an organized militia by protecting the rights of individuals whose privately owned weapons armed that militia.

In part. Yet the right is a right of the people. Not a right of the state. Not a right of the militia. And while collectivist arguments make a lot of sense, the right was incorporated nonetheless.

 

[Walter Bailey]

This dichotomy between collectivist and individual rights that you are using is of recent coinage. It wouldn’t have been recognized by Madison or his contemporaries. The evidence that they considered both the rights of the states and those of the individual is clear, but they didn’t pit them against each other as you are doing.

 

[Curious George]

This dichotomy between collectivist and individual rights that you are using is of recent coinage. It wouldn’t have been recognized by Madison or his contemporaries. The evidence that they considered both the rights of the states and those of the individual is clear, but they didn’t pit them against each other as you are doing.

I disagree. Read the 10th amendment. The drafters clearly recognized the distinction though they may have felt the distinction was less relevant given the degree of control individuals had over their state.

 

[Nous]

If I may, the prefatory clause was clearly intended to ensure that state militia regiments could not be disarmed or replaced with a large standing army. At the time, every state has its own organized militia. And soon afterward, the organized militia was codified by act of Congress - the 1792 Militia Act- to require all men 18-45 to provide themselves with a good firearm and enroll in the militia of their state.

I agree with every word you have posted on this thread. Of course, you make it impossible to disagree because you've mostly posted a number of inarguable facts. Well done. Good job. You demonstrate an unusual degree of knowledge on the topic.

 

[Nous]

Well apparently my long winded reply to you here did not post.

That you seem to think that nuclear weapons and guns are regulated for the same reasons is likely a source of the problem.

The purpose of the militia clause was to highlight a reason of the highest importance with regard to the restriction on the government. Nothing in that limits the forbidding of the federal government from infringing on the people's right to bear arms to only that purpose. Indeed, the government shall not infringe on the right of the people to keep and bear arms.

The drafters chose not to indicate a limit on the restriction. They instead associated the necessity of a militia with the right to bear arms. That such a right is associated with a militia in no way limits the restriction however. It certainly does not read the government shall not infringe on the militias right to keep and bear arms, no matter how much you want it to read so.

I don't know what these last two sentences are supposed to mean: "That such a right is associated with a militia in no way limits the restriction however. It certainly does not read the government shall not infringe on the militias right to keep and bear arms, no matter how much you want it to read so." In your mind, why is it that the laws that prohibit individuals from "keep[ing] and bear[ing] arms" when the arms are machine guns constitutional, but the DC law struck down in Heller was not constitutional?

It is true that the Second Amendment does not restrict what sort of arms militias or armies may "keep and bear". We want our military to have the most sophisticated weapons available. But Justice Scalia claimed that the Second Amendment does not include the right for individuals to "keep and bear" "dangerous" weapons (such as machine guns).

BTW, as the Court has often noted, no right identified in the Constitution is unlimited or without qualification. The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech". But there were slander and libel laws on the books at that time, and they remained good law.

 

[Walter Bailey]

I disagree. Read the 10th amendment. The drafters clearly recognized the distinction though they may have felt the distinction was less relevant given the degree of control individuals had over their state.

A distinction is not the same as a dichotomy. What I was saying is that the founders did not see the interests of the states and those of the people as necessarily opposed to each other on this or many other things. In many cases it would have made perfect sense to them, to protect one by protecting the other.

 

[Walter Bailey]

I don't know what these last two sentences are supposed to mean: "That such a right is associated with a militia in no way limits the restriction however. It certainly does not read the government shall not infringe on the militias right to keep and bear arms, no matter how much you want it to read so." In your mind, why is it that the laws that prohibit individuals from "keep[ing] and bear[ing] arms" when the arms are machine guns constitutional, but the DC law struck down in Heller was not constitutional?

It is true that the Second Amendment does not restrict what sort of arms militias or armies may "keep and bear". We want our military to have the most sophisticated weapons available. But Justice Scalia claimed that the Second Amendment does not include the right for individuals to "keep and bear" "dangerous" weapons (such as machine guns).

BTW, as the Court has often noted, no right identified in the Constitution is unlimited or without qualification. The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech". But there were slander and libel laws on the books at that time, and they remained good law.

Scalia’s willful ignorance of the history of the militia convinced me that he had no idea that the organized militia at the time of the Second Amendment’s ratification operated the heavy weapons of the time: Cannons.

 

[Curious George]

I don't know what these last two sentences are supposed to mean: "That such a right is associated with a militia in no way limits the restriction however. It certainly does not read the government shall not infringe on the militias right to keep and bear arms, no matter how much you want it to read so." In your mind, why is it that the laws that prohibit individuals from "keep[ing] and bear[ing] arms" when the arms are machine guns constitutional, but the DC law struck down in Heller was not constitutional?

It is true that the Second Amendment does not restrict what sort of arms militias or armies may "keep and bear". We want our military to have the most sophisticated weapons available. But Justice Scalia claimed that the Second Amendment does not include the right for individuals to "keep and bear" "dangerous" weapons (such as machine guns).

BTW, as the Court has often noted, no right identified in the Constitution is unlimited or without qualification. The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech". But there were slander and libel laws on the books at that time, and they remained good law.

I completely understand that no right is unfettered. If you read my posts in this area I have very much stated and acknowledged this. While Miller was in many ways a farce, it certainly highlighted that not all weapons fall under the 2nd Amendment protections.

You ask my personal opinions regarding machine guns. While I do not dispute federal power to tax under the tax clause or regulate under the near plenary power of the commerce clause, I believe a prohibition on machine guns is potentially unconstitutional. I do not, like Scalia, agree that the weapons the government is prevented from taking away are only those that are commonly held by individuals.

The two sentences that you wanted clarified meant pointed out that this right is a "right of the people." This phrase should reflect the same meaning as where it is elsewhere written unless there is a reason for us to construe it differently. Here, there is no such reason.

 

[Walter Bailey]

In part. Yet the right is a right of the people. Not a right of the state. Not a right of the militia. And while collectivist arguments make a lot of sense, the right was incorporated nonetheless.

What evidence do you have that the founders believed-that James Madison believed-that it had to be either a right of the people or a right of the states, that it could not be both? I recommend Federalist 46, where Madison argues that the people would be able to defend their rights by acting as agents of their states.

 

[Curious George]

A distinction is not the same as a dichotomy. What I was saying is that the founders did not see the interests of the states and those of the people as necessarily opposed to each other on this or many other things. In many cases it would have made perfect sense to them, to protect one by protecting the other.

And that is a wonderful argument against the incorporation of the second amendment. We are discussing whether the clear intent of the 2nd Amendment was to prevent the federal government from taking weapons from the people. I say yes.

 

[Curious George]

What evidence do you have that the founders believed-that James Madison believed-that it had to be either a right of the people or a right of the states, that it could not be both? I recommend Federalist 46, where Madison argues that the people would be able to defend their rights by acting as agents of their states.

I am not suggesting that they couldn't have also meant right of the state; I am only suggesting that they clearly meant right of the people.

 

[Walter Bailey]

And that is a wonderful argument against the incorporation of the second amendment. We are discussing whether the clear intent of the 2nd Amendment was to prevent the federal government from taking weapons from the people. I say yes.

It can (and should)certainly be used to deny that the 2d Amendment restricts access to firearms to times when people are actively serving in the militia.

 

[Walter Bailey]

I am not suggesting that they couldn't have also meant right of the state; I am only suggesting that they clearly meant right of the people.

Then we don’t really disagree.

 

[Curious George]

It can (and should)certainly be used to deny that the 2d Amendment restricts access to firearms to times when people are actively serving in the militia.

If by it, you are referring to your argument that the states rights and the individuals rights went, for the most part, hand in hand, I fail to see how such an argument is relevant to deny that the 2nd Amendment is only applicable when people are serving in the militia.

Don't mistake my meaning here, I agree that the restriction on the federal government was meant for militia and non militia activity alike. I just do not see how your argument would be used to show such.

 

[Walter Bailey]

If by it, you are referring to your argument that the states rights and the individuals rights went, for the most part, hand in hand, I fail to see how such an argument is relevant to deny that the 2nd Amendment is only applicable when people are serving in the militia.

Don't mistake my meaning here, I agree that the restriction on the federal government was meant for militia and non militia activity alike. I just do not see how your argument would be used to show such.

I don’t believe that protecting an individual right to own firearms for any purpose was the PRIMARY reason for the 2d Amendment. I think that the primary purpose for the Amendment was to avoid the danger of tyranny from a large standing army and Federal government by putting the states and the people in charge of their own defense and law enforcement.

 

[Curious George]

I don’t believe that protecting an individual right to own firearms for any purpose was the PRIMARY reason for the 2d Amendment. I think that the primary purpose for the Amendment was to avoid the danger of tyranny from a large standing army and Federal government by putting the states and the people in charge of their own defense and law enforcement.

I did not say that the primary purpose was protecting an individual's right to own firearms for any purpose. I said that the primary purpose was to restrict the federal government from taking away weapons from individuals.