My Issue With The 2008 Second Amendment Decision

[Walter Bailey]

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.

We disagree if you don't qualify the word individuals. I would agree if you said individuals serving in the state militia.

 

[siti]

@Nous - like I said - no wonder there is no resolution! Both sides are doing exactly what Christians do with the Bible - taking an ancient document and arguing about what it's divine author really meant when the most strikingly obvious fact about it is that it is completely out of date and should have been trashed a century ago. Its also obvious to me that there is even less chance of having an intelligent discussion about gun control in the US than there is about almost any other topic that might be raised on RF. I am now going to revert to type and just shake my head every time a few dozen American kids get gunned in the playground down while y'all argue about what some 200+ year old documents might have meant.

 

[Curious George]

We disagree if you don't qualify the word individuals. I would agree if you said individuals serving in the state militia.

Yet the right that shall not be infringed is a right of "the people" not a right of "the people in the militia."

 

[Walter Bailey]

Yet the right that shall not be infringed is a right of "the people" not a right of "the people in the militia."

Look I’m not an expert in Constitutional history but I have been reading about it for awhile. And it just doesn’t make sense to me that the author of the Second Amendment, while writing in support of the Federal Constitution(as he does in the Federalist Papers), would speak of the militia only as a state government organized force, if for Constitutional purposes he thought of it primarily in the abstract sense of “all individuals with arms” whether organized or not. Why else would there be a prefatory clause about militia at all? Why not simply say “The Right of the people to keep and bear arms shall not be infringed.” ?

 

[Walter Bailey]

@Nous - like I said - no wonder there is no resolution! Both sides are doing exactly what Christians do with the Bible - taking an ancient document and arguing about what it's divine author really meant when the most strikingly obvious fact about it is that it is completely out of date and should have been trashed a century ago. Its also obvious to me that there is even less chance of having an intelligent discussion about gun control in the US than there is about almost any other topic that might be raised on RF. That is my final comment - ever - on this subject - I am now going to revert to type and just shake my head every time a few dozen American kids get gunned in the playground down while y'all argue about what some 200+ year old documents might have meant.

I’m not a Christian. The texts of my faith are in many cases even older than the Old Testament. But I think most of them still have relevance today.

 

[siti]

I’m not a Christian. The texts of my faith are in many cases even older than the Old Testament. But I think most of them still have relevance today.

But presumably you don't spend most of your time arguing about exactly what Lao Tzu might have meant by the words of the Tao te Ching? I mean that would be kind of opposite to the spirit of the Tao wouldn't it?

 

[Walter Bailey]

But presumably you don't spend most of your time arguing about exactly what Lao Tzu might have meant by the words of the Tao te Ching? I mean that would be kind of opposite to the spirit of the Tao wouldn't it?

Well, as the Tao is indefinable and also unique to each person, you have me there. Maybe i’m wrong but I do not suppose that the Second Amendment is like the Tao in that way.

 

[siti]

Well, as the Tao is indefinable and also unique to each person, you have me there. Maybe i’m wrong but I do not suppose that the Second Amendment is like the Tao in that way.

No it isn't at all like that - it was written for a very specific group of people in very specific circumstances. Arguing about what the 18th century writers of the second amendment 'really' meant in a 21st century context is pointless - which is my point. The gun control folks are playing right into the hands of the gun rights people by even engaging in that debate. It ain't goin' nowhere - and that's egg zackly where the gun rights people want it to go.

 

[Buddha Dharma]

Well, as the Tao is indefinable and also unique to each person, you have me there. Maybe i’m wrong but I do not suppose that the Second Amendment is like the Tao in that way.

IMO, if you think the Tao being undefinable means it is unique to each person- you have lost Laozi's point somewhere. The Tao is the Tao for Laozi. That is: it is really the Tao. It's an actual reality.

 

[Thief]

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.
.

securing a free state includes .....keeping your gun
the 'state' having taken your gun is no longer a free state

you are then subject to whatever the state desires
and your territory (small as it is ) is no longer defensible

not that defending yourself against the state is practical

if the state wants your gun.....they will kick in your door
assume the worst
and shoot you on sight

your immediate protection......the law
that you have the right to keep and bear arms

 

[siti]

IMO, if you think the Tao being undefinable means it is unique to each person- you have lost Laozi's point somewhere. The Tao is the Tao for Laozi. That is: it is really the Tao. It's an actual reality.

Well there you go! Even the Tao that cannot be named is given different names! I guess the problem is much deeper than gun control after all.

 

[Walter Bailey]

IMO, if you think the Tao being undefinable means it is unique to each person- you have lost Laozi's point somewhere. The Tao is the Tao for Laozi. That is: it is really the Tao. It's an actual reality.

I probably should have said something about each person’s experience or perception of the Tao, but both concepts are probably less than ideal to describe the idea.

 

[Walter Bailey]

securing a free state includes .....keeping your gun
the 'state' having taken your gun is no longer a free state

you are then subject to whatever the state desires
and your territory (small as it is ) is no longer defensible

not that defending yourself against the state is practical

if the state wants your gun.....they will kick in your door
assume the worst
and shoot you on sight

your immediate protection......the law
that you have the right to keep and bear arms

I get the impression that most defenders of the Second Amendment today believe as you evidently do that the main purpose of bearing arms is for individuals acting alone to defend themselves against an attack by the government. And that may be a reasonable view of the best purpose of firearms ownership today. I hope it isn’t but it might be regardless. What I believe is clear is that very few, if any people living in America in the 1790s owned firearms for that purpose.

 

[Walter Bailey]

No it isn't at all like that - it was written for a very specific group of people in very specific circumstances. Arguing about what the 18th century writers of the second amendment 'really' meant in a 21st century context is pointless - which is my point. The gun control folks are playing right into the hands of the gun rights people by even engaging in that debate. It ain't goin' nowhere - and that's egg zackly where the gun rights people want it to go.

I meant that the Second Amendment IS definable and that it is therefore possible to assess its relevance to the present day. And when I do that, I do find ways in which it is still relevant, one of them being civic responsibility and another being national defense.

 

[siti]

I meant that the Second Amendment IS definable and that it is therefore possible to assess its relevance to the present day. And when I do that, I do find ways in which it is still relevant, one of them being civic responsibility and another being national defense.

OK - I fear we are going round in circles (again) - but if civic responsibility and national defense are the issues, has the US not entrusted the latter to a standing professional military under the control of the federal government? Then in what sense is national defense a civic responsibility? In what sense is it necessary for ordinary civilians to be allowed to keep and bear arms? Because the reason for making the right to keep and bear arms constitutionally explicit was to enable the defense of the state under circumstances where it was not desirable/possible to have a standing army - wasn't it? And if that is so, what's the point of arguing about what it meant - the circumstances that made it necessary no longer exist, so how (other than the fact that it remains as part of the Constitution) is it relevant at all?

 

[Curious George]

Look I’m not an expert in Constitutional history but I have been reading about it for awhile. And it just doesn’t make sense to me that the author of the Second Amendment, while writing in support of the Federal Constitution(as he does in the Federalist Papers), would speak of the militia only as a state government organized force, if for Constitutional purposes he thought of it primarily in the abstract sense of “all individuals with arms” whether organized or not. Why else would there be a prefatory clause about militia at all? Why not simply say “The Right of the people to keep and bear arms shall not be infringed.” ?

Well in the original draft it wasn't a prefatory clause. The language followed a semicolon instead. Nous quoted it for us earlier, albeit to argue for a different point. In that era, we do see local governments regulating weapons and heavily in some instances. The purpose which they highlight is where they saw the biggest threat. And, it certainly ties the two ideas together. The question we need to ask ourselves is whether it limits the restriction on the federal government such that they intended the federal government could deprive a person of their right to keep and bear arms separate from militia activity. The answer is no.

They intended to prevent federal infringement on the right to keep and bear arms and highlight the importance of the militia because the federal government could control the militia and that is where they would have for seen the regulation.

The fact of the matter is that they did not think that the right to keep and bear arms would be infringed through the interstate commerce clause and the tax clause.

The statement the right of the people to keep and bear arms shall not be infringed is a stand alone statement. It was intended at that time to only apply to the federal government. The drafters did not intend that there would be no gun control, nor did they intend to interfere with with the crafting of laws that were designed for the safety and welfare of the people.

They did intend to prevent the federal government from disarming the people.

Now there is merit in the collectivist arguments, and there is merit in the individualist arguments. But, any reading that denies the simple intent of preventing the federal government from disarming the people is trying to manipulate the facts in order to serve their bias.

Whether we go by the words written or the spirit of the law, the federal government is restricted from infringing on the right of the people to keep and bear arms.

 

[Stevicus]

Is it OK if the government guarantees an equal amount of protection against gun crime that privately owned guns provide? I think privately owned guns are responsible for thwarting a couple of dozen criminal acts per year in the US. Confiscating all guns in private hands, without doing anything else, will undoubtedly meet that quota.

I was talking about a guarantee of protection against all crime, not just gun crime. That seems to be the source of a lot of apprehension regarding gun control proposals, since (it is believed) it would lead to the law-abiding populace being vulnerable to criminals who would not comply with gun control laws. This may not address all concerns of those who favor private gun ownership, but it may be enough to bring in enough votes for a compromise proposal.

In politics, you have to be willing to give something in order to get something. That seems to be what's absent in most debates and proposals surrounding gun control, which is why such proposals never really seem to go anywhere.

 

[Stevicus]

Because the government wasn’t providing all the arms. According to the 1792 militia act, the militiamen had to purchase their own small arms for militia service. Sometimes the states provided artillery pieces, but generally the militia offered the new nation a low cost option-a government force that was privately equipped, hence the need to protect the right of the people to keep and bear arms.

Are you saying that the government would not be able to do this without an actual amendment?

 

[Thief]

I get the impression that most defenders of the Second Amendment today believe as you evidently do that the main purpose of bearing arms is for individuals acting alone to defend themselves against an attack by the government. And that may be a reasonable view of the best purpose of firearms ownership today. I hope it isn’t but it might be regardless. What I believe is clear is that very few, if any people living in America in the 1790s owned firearms for that purpose.

I believe the initial purpose was hunting
but of course ......one's fellow man can also be a problem

but as tension arose in the colonies.....and the fight would soon be landing
every man and his firearm would be the only recourse

it's not likely another country would dare set foot by force on our soil
what kind of crazy would dare to invade a country like this?
guns everywhere
people willing to use them

as for our own government taking firearms......it happens
I saw a report about the affluent being rousted from their homes and CUFFED
as the national guard searched and seized all weapons
the local area had been devastated by a hurricane
the poor would be homeless and in dire need

invading the homes of the well to do, became a serious possiblity
and defense of that house....by firearm.....likewise

so the gov took the guns

 

[Walter Bailey]

Well in the original draft it wasn't a prefatory clause. The language followed a semicolon instead. Nous quoted it for us earlier, albeit to argue for a different point. In that era, we do see local governments regulating weapons and heavily in some instances. The purpose which they highlight is where they saw the biggest threat. And, it certainly ties the two ideas together. The question we need to ask ourselves is whether it limits the restriction on the federal government such that they intended the federal government could deprive a person of their right to keep and bear arms separate from militia activity. The answer is no.

They intended to prevent federal infringement on the right to keep and bear arms and highlight the importance of the militia because the federal government could control the militia and that is where they would have for seen the regulation.

The fact of the matter is that they did not think that the right to keep and bear arms would be infringed through the interstate commerce clause and the tax clause.

The statement the right of the people to keep and bear arms shall not be infringed is a stand alone statement. It was intended at that time to only apply to the federal government. The drafters did not intend that there would be no gun control, nor did they intend to interfere with with the crafting of laws that were designed for the safety and welfare of the people.

They did intend to prevent the federal government from disarming the people.

Now there is merit in the collectivist arguments, and there is merit in the individualist arguments. But, any reading that denies the simple intent of preventing the federal government from disarming the people is trying to manipulate the facts in order to serve their bias.

Whether we go by the words written or the spirit of the law, the federal government is restricted from infringing on the right of the people to keep and bear arms.

The only thing I would question about what you are saying here is the use of the word "collectivist." I think that's a purely modern term that implies a dichotomy between individual and states rights that I don't believe the framers would have recognized. They may have seen a distinction between the two but I doubt they saw an inherent conflict between the two.