My Issue With The 2008 Second Amendment Decision

[Walter Bailey]

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 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

Just speaking of the original intent of the 2d Amendment, one country that actually invaded American soil not long after the ratification of the Second Amendment was Britain. Among other things, British troops burned the White House and attacked New Orleans. And in both campaigns, they faced off against American forces that included militia. The Japanese also occupied the Aleutian islands and other American possessions during the Second World War. And in 1791, if authorities were going to come to your house, it might be a local sheriff but it also might be the militia, because the militia also served a law enforcement function at times. Putting that function in the hands of the militia was also thought to reduce the chances of tyranny. Today's myriad of state and federal law enforcement agencies with search and arrest powers would probably have horrified most Americans in 1791.

 

[Walter Bailey]

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

Do what without an actual (constitutional?) amendment?

 

[Thief]

Just speaking of the original intent of the 2d Amendment, one country that actually invaded American soil not long after the ratification of the Second Amendment was Britain. Among other things, British troops burned the White House and attacked New Orleans. And in both campaigns, they faced off against American forces that included militia. The Japanese also occupied the Aleutian islands and other American possessions during the Second World War. And in 1791, if authorities were going to come to your house, it might be a local sheriff but it also might be the militia, because the militia also served a law enforcement function at times. Putting that function in the hands of the militia was also thought to reduce the chances of tyranny. Today's myriad of state and federal law enforcement agencies with search and arrest powers would probably have horrified most Americans in 1791.

and that incident I mentioned .....I saw as news report

and I was horrified

 

[Walter Bailey]

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?

In 1791, an overwhelming majority of Americans believed that there were never appropriate circumstances to maintain a standing army large enough to obviate the need for militia and the original intent of the constitution reflected that. How was it decided to depart so radically from that intent and form one of the world's largest standing armies and the most expensive standing army? Is there really a rational basis for saying that maintaining such an army is the only appropriate way to do what is needed to defend the United States today?

 

[Shad]

Strange, this thread. I've read a lot of it, and it goes on and on about person's rights.
When this amendment, the second, was written about muskets and cannons.
Maybe we could take the amendment for what it was intended, and eliminate AR's,
and any gun that could hold more than one bullet, or `slug`.
I like to think of the frame of mind of the writers of this amendment,
as to their imagining the advancements that we've made.
I think the amendment should be re-written to modern terms,
and the `militia` be re-designed, and the weapons restricted to `non-war` weapons only.
Along those lines of thought. But that's just silly, isn't it ?
Just silly thinking out loud....forget it !

Repeating weapons already existed at the time. The organ guns date back to the 15th century. Rifles such as the Kalthoff repeater and Cookson repeater of the 17th century. Pistols were made in volley gun formats in the 18th century. Modern artillery is still a form of cannon.

 

[`mud]

Just the same circles, military guns shouldn't be allowed, period !!!
No mags or clips ! Limit load to six core at a time. etc,etc.
And !!!!! more importantly...longer waiting times, at least 30 days maybe 60 days !
Just too circular with a total lack of intelligence !
Too many explanation marks here but......emphasis needed.

 

[Walter Bailey]

Repeating weapons already existed at the time. The organ guns date back to the 15th century. Rifles such as the Kalthoff repeater and Cookson repeater of the 17th century. Pistols were made in volley gun formats in the 18th century. Modern artillery is still a form of cannon.

What I think was originally intended was for citizens who served in the militia to be able to privately purchase effective military small arms. If the standing militia was revived today, at the very least I think that militiamen would have to be allowed to own true assault rifles with burst and/or full auto capability.

 

[Nous]

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.

That is precisely the impression Scalia gives in section III of Heller. And neither of the dissents explicitly made this point. You're very perceptive, quite astute on this topic. It's delightful.

 

[Walter Bailey]

Just the same circles, military guns shouldn't be allowed, period !!!
No mags or clips ! Limit load to six core at a time. etc,etc.
And !!!!! more importantly...longer waiting times, at least 30 days maybe 60 days !
Just too circular with a total lack of intelligence !
Too many explanation marks here but......emphasis needed.

I can understand why people today feel that way. But consider this: in the present day there is much more emphasis placed on rights without attendant responsibilities than was probably the case in 1791. I believe that a breakdown in Americans' sense of community and civic responsibility has contributed strongly to problems such as the epidemic of mass shootings we are now seeing. Requiring most American adults to perform civic duty as a part of firearms ownership by serving in the militia, over time might help address this problem.

 

[Shad]

What I think was originally intended was for citizens who served in the militia to be able to privately purchase effective military small arms. If the standing militia was revived today, at the very least I think that militiamen would have to be allowed to own true assault rifles with burst and/or full auto capability.

I was clarifying that more weapons types existed besides single capacity muskets. Modern artillery are still canons. Muskets were popular due to costs and simplicity not because it was the only type of weapons available.

I agree they would have access if not the capability (funds) to purchase such weapons. However the War of 1912 and Barbery War had merchant shipping armed with cannons. So from that even cannons could be included provided a person can afford such weapons.

 

[`mud]

Drag a cannon to any school......yah....another circle !

 

[Walter Bailey]

I was clarifying that more weapons types existed besides single capacity muskets. Modern artillery are still canons. Muskets were popular due to costs and simplicity not because it was the only type of weapons available.

I agree they would have access if not the capability (funds) to purchase such weapons. However the War of 1912 and Barbery War had merchant shipping armed with cannons. So from that even cannons could be included provided a person can afford such weapons.

In the 18th century, the only really practical small arms available to most people were single shot-either rifle or smooth bore.

 

[Nous]

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.

That isn't what I asked (or intended to ask, anyway). I intended to ask: why, in your mind, are those laws that prohibit the "keeping and bearing" of machine guns constitutional but the DC law struck down in Heller was not constitutional? I wasn't asking whether you believe that any law should or should not be constitutional, or is or isn't "potentially unconstitutional" (whatever that phrase means). Miller did hold that the National Firearms Act, which prohibits the unlawful possession of machine guns and sawed-off shotguns, does not violate the Second Amendment. Which arms do you say the Second Amendment does not secure a right for individuals to possess on their persons and/or in their homes and to bear? Which ever these would be, then explain why, if your interpretation of the Second Amendment were correct.

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.

What, then, is the meaning of the phrase "right of the people" as it written elsewhere?

 

[Walter Bailey]

Drag a cannon to any school......yah....another circle !

If we had a standing militia there would be plenty(millions in fact) of trained people to assign to schools for armed protection.

 

[Walter Bailey]

That isn't what I asked (or intended to ask, anyway). I intended to ask: why, in your mind, are those laws that prohibit the "keeping and bearing" of machine guns constitutional but the DC law struck down in Heller was not constitutional? I wasn't asking whether you believe that any law should or should not be constitutional, or is or isn't "potentially unconstitutional" (whatever that phrase means). Miller did hold that the National Firearms Act, which prohibits the unlawful possession of machine guns and sawed-off shotguns, does not violate the Second Amendment. Which arms do you say the Second Amendment does not secure a right for individuals to possess on their persons and/or in their homes and to bear? Which ever these would be, then explain why, if your interpretation of the Second Amendment were correct.

What, then, is the meaning of the phrase "right of the people" as it written elsewhere?

You didn't ask me of course, but I think it was meant to refer to a right of both the people as individuals and the people as citizens of the separate states.

 

[Nous]

@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.

What Dick Heller et al. did was file a complaint in federal district court alleging, as the first cause of action:

By maintaining and enforcing a set of laws banning the private ownership and possession of handguns and functional firearms within the home, forbidding otherwise lawful self-defense usage of arms, and forbidding the movement of a handgun on an individual’s property, defendants are propagating customs, policies, and practices that violate the plaintiffs’ individual rights under the Second Amendment to the United States Constitution, damaging plaintiffs in violation of 42 U.S.C. § 1983.​

https://object.cato.org/sites/cato.org/files/pubs/pdf/gunsuit.pdf

(Also see here, if you wish: 42 U.S. Code § 1983 - Civil action for deprivation of rights)

This was after quoting the Second Amendment and the DC statutes.

So you're a district court judge; how do you resolve this complaint?

There is certainly nothing weird or irrational about analyzing what the words of the amendment (and the statutes) mean, and asserting that what the words do mean is what the writers and ratifiers intended them to mean. If one claims that what the words mean is what the case law says they mean, one can count on these court opinions somehow interpreting their meaning, likely trying to discern what the words were intended to mean.

Moreover, one of the most important aspects of the law is, except when announcing significant changes, to try to maintain some degree of continuity in the meaning of what constitutions and statutes mean, so as to promote stability and order in society.

I don't know what theory of constitutional interpretation you might propose, but I do not know of one that entirely disregards the meaning of the words as the writers and ratifiers intended them. Nevertheless, I think most judges these days try to avoid strictly adhering to a theory of constitutional interpretation. Justice Roberts has explicitly eschewed such theories as all being inadequate in various ways and in varying degrees.

In any case, so how do you propose resolving Heller's complaint?

 

[`mud]

Who are we going to tax to pay for those (millions) of cannons ?
The working rich ? I guess maybe Trump has few millions to spare !
Ahhhhh.....the tax for the Reich ! Salute to them that has,
and protect the kids with the cannons of the rich.......yah that !

 

[Nous]

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.

I don't know what you (or any of the people you are speaking for) are asking for or expecting in practical terms. Police are not magicians. They can't make crime disappear.

 

[Nous]

You didn't ask me of course, but I think it was meant to refer to a right of both the people as individuals and the people as citizens of the separate states.

Are you saying that that's what the writers and ratifiers of the Bill of Rights meant, or that that's what Curious George meant?

I'm not really sure the writers or the ratifiers of the Bill of Rights gave much thought to precisely the scope and applicability of these provisions. Constitutions and Declarations (especially), and even statutes (sometimes) are written in loosey-goosey ways so that they can be interpreted as unforeseeable circumstances may require, to be ultimately decided by someone wearing a robe who is accustomed to dealing with such issues.

 

[Nous]

I can understand why people today feel that way. But consider this: in the present day there is much more emphasis placed on rights without attendant responsibilities than was probably the case in 1791. I believe that a breakdown in Americans' sense of community and civic responsibility has contributed strongly to problems such as the epidemic of mass shootings we are now seeing. Requiring most American adults to perform civic duty as a part of firearms ownership by serving in the militia, over time might help address this problem.

Yes, for God's sake, at least some training in gun safety and storage would be a good idea!