My Issue With The 2008 Second Amendment Decision

[wandering peacefully]

In 1789, every state government oversaw standing militia regiments that were always active.

Which makes perfect sense as to why they would add the phrase 'the right to bear arms shall not be infringed upon'.

 

[wandering peacefully]

The phrase "when it is necessary for a militia to be activated" kind of hangs me up. The term "militia" has acquired a broad meaning in the case law ("militia" means all able-bodied men within a certain age range). "Well-regulated" also entails drills and exercises with firearms. In the 18th century, citizen militias were all essentially "standing" militias. So, while the phrase "to bear arms" means "to serve as a soldier," etc., as Justice Stevens explicated, providing for a "well-regulated militia," as so conceived in the 18th century, certainly expands the concept of "keeping and bearing arms" for such a purpose. Of course, as Justice Breyer explains, at the time of the adoption of the Second Amendment, it was common to have laws prohibiting the carrying of loaded firearms in the major urban areas and even in smaller towns and cities. These laws were not considered to violate the Second Amendment.

Thanks for that information. I think the problem has become as in many other areas, interpretation of laws and practices change with times and culture. It is strange this one amendment is viewed as set in stone when the best of legal interpretations are unable to totally agree to the original intent. It should be a living document in all areas, including the ones some don't like to change, if they become a hinderance to betterment of the country.

"Even the Founding Fathers knew it might have to change with the times. Article Five of the Constitution spells it out: "The Congress, whenever two-thirds of both Houses [the House and the Senate] shall deem it necessary, shall propose amendments to this Constitution . . ." States were also given a chance to propose changes, or amendments. Three-fourths of the states have to approve the amendment for it to become law.

In the past 200 years, the Constitution has been amended 27 times. The 13th Amendment, in 1865, forever banned the practice of slavery. The 15th Amendment, in 1870, gave all citizens the right to vote, regardless of their race."

How the U.S. Constitution Has Evolved Over Time | Scholastic

And most likely this will become a state by state movement with laws being passed by a majority of voters who are tired of seeing dead children who don't make it home from school and gun violence in the streets. I can see a time in the future where Texas, Montana, and South Carolina allow firearms and other states don't. Maybe. But we should not continue to be foolish by doing nothing.

 

[Walter Bailey]

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 !

In the past it was like Jury Service, when the militia were paid it was not a large amount, because they were performing a civic duty. Frequently they weren't paid.

Another thing that would be made possible by a revived, universal militia system is a large reduction in the size and cost of the regular US military.

 

[Shad]

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

Due to costs and manufacturing capabilities of the era.

 

[siti]

how do you propose resolving Heller's complaint?

Judges and courts can't adequately resolve it - it is an anachronistic constitutional provision based on a socio-political situation that no longer pertains. It has to be changed by government - which means (whether the people like it or not) the people - and as long as the people (on both sides of the debate) continue to appeal to the second amendment as some kind of inviolable 'final' authority, the courts will have no choice but to continue to make inadequate interpretations (by which I mean inadequate to the task of resolving the whole gun control issue) of the language of the second amendment.

 

[Walter Bailey]

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.

I'm telling you what I think the framers meant. I don't think they said we have collective rights vs. individual rights. I think they said we have Federal authority and the rights of states and individuals.

 

[Walter Bailey]

Due to costs and manufacturing capabilities of the era.

And technological development of the designs themselves.

 

[siti]

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?

Those are excellent questions - not to drag the current thread off topic - but do you know the history of how the US went from profound suspicion of a standing army to the most powerful military in the history of the world? Its an honest question - I have absolutely no idea.

 

[Walter Bailey]

Judges and courts can't adequately resolve it - it is an anachronistic constitutional provision based on a socio-political situation that no longer pertains. It has to be changed by government - which means (whether the people like it or not) the people - and as long as the people (on both sides of the debate) continue to appeal to the second amendment as some kind of inviolable 'final' authority, the courts will have no choice but to continue to make inadequate interpretations (by which I mean inadequate to the task of resolving the whole gun control issue) of the language of the second amendment.

So do you think that fear that a large standing army gives the Federal government too much power and makes it more prone to tyranny is anachronistic?

Do you think that the idea of maintaining a much smaller regular army relative to the size of the population the way say Germany does now is anachronistic?

 

[siti]

So do you think that fear that a large standing army gives the Federal government too much power and makes it more prone to tyranny is anachronistic?

Do you think that the idea of maintaining a much smaller regular army relative to the size of the population the way say Germany does now is anachronistic?

But the second amendment doesn't and hasn't prevented the former or promoted the latter - certainly not in the last century or so - has it? So if that was the intent and the intent remains valid, shouldn't the second amendment be amended to make it's objective more explicit and legally precise?

 

[Curious George]

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?

Miller did not pose the question of the automatic weapons. Miller posed the question of sawed off shotguns, and is a questionable case on which to rely in the first place due to questions of lack of representation. Miller's holding on sawed off shotguns was due to a lack of military purpose of those sawed off shotguns.

Miller held that not every weapon was protected by the second amendment.

 

[Curious George]

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

An individual right.

 

[Walter Bailey]

Those are excellent questions - not to drag the current thread off topic - but do you know the history of how the US went from profound suspicion of a standing army to the most powerful military in the history of the world? Its an honest question - I have absolutely no idea.

There have been a lot of books devoted to these and related questions. I don't have the full answer of course. But from my reading of history causes include the Federal victory in the Civil War, the rise of American industrial power in the last half of the 19th century, the US victory in the Spanish American War/acquisition of overseas US territories, US involvement in World War 1 and US involvement in World War 2. It would take more writing than can be posted here to elaborate. But there are some books I could recommend if you want to read further.

 

[siti]

There have been a lot of books devoted to these and related questions. I don't have the full answer of course. But from my reading of history causes include the Federal victory in the Civil War, the rise of American industrial power in the last half of the 19th century, the US victory in the Spanish American War/acquisition of overseas US territories, US involvement in World War 1 and US involvement in World War 2. It would take more writing than can be posted here to elaborate. But there are some books I could recommend if you want to read further.

Right - so had it not been for the civil war, industrialization, the acquisition of overseas territories and two world wars, the second amendment would still make perfect sense as it stands?

 

[Walter Bailey]

Right - so had it not been for the civil war, industrialization, the acquisition of overseas territories and two world wars, the second amendment would still make perfect sense as it stands?

How could I or anyone else possibly know that? You're asking for speculation on an extremely complex hypothetical.

 

[Walter Bailey]

But the second amendment doesn't and hasn't prevented the former or promoted the latter - certainly not in the last century or so - has it? So if that was the intent and the intent remains valid, shouldn't the second amendment be amended to make it's objective more explicit and legally precise?

Possibly but I'm wary of that idea. Couldn't you say the same thing about the 1st amendment or the 4th amendment? The 3rd amendment is almost never used today. Should we repeal it? A lot of federal legislation is intended to be explicit and legally precise and still ends up being complex and ambiguous. Then there's issue of the common law system. In the common law system, laws acquire their meaning through precedent; without an attempt to finalize them when written. Perhaps the 2nd amendment just needs better legal interpretation by the courts.

 

[siti]

How could I or anyone else possibly know that? You're asking for speculation on an extremely complex hypothetical.

But that's exactly what we are doing when we try to interpret the intent of the second amendment isn't it? Obviously it was written when all of those things had not happened and there was not a very professional, very large and very expensive federally-controlled military in existence and it was against that background the second amendment was penned. And under those circumstances it was necessary for individuals to "keep" and be prepared (i.e. have acquired sufficient competence) to "bear" arms for the purpose of national defense.

Couldn't you say the same thing about the 1st amendment or the 4th amendment?

Certainly not. What a preposterous argument! How are the 1st and 4th Amendments even related?

 

[Stevicus]

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.

No, but those who feel as if the police can't adequately protect people from crime believe that they need legal firearms to protect themselves. This is an argument that often goes ignored or unaddressed, so it would seem that those who advocate for gun control should be willing to address and/or compromise on this point.

My proposal would entail government having to pay out cash to every victim of crime of whatever degree. The more government has to pay out, the more incentive they will have to stop crime, and this should have the effect of reducing crime overall in society. They may not be magicians, but I would wager that once they start getting hit in the pocketbook enough times (deducted from the police budget, so it shouldn't be any extra cost to the taxpayers), they will start to be more proactive in dealing with the problem. It's inevitable.

 

[siti]

No, but those who feel as if the police can't adequately protect people from crime believe that they need legal firearms to protect themselves. This is an argument that often goes ignored or unaddressed, so it would seem that those who advocate for gun control should be willing to address and/or compromise on this point.

My proposal would entail government having to pay out cash to every victim of crime of whatever degree. The more government has to pay out, the more incentive they will have to stop crime, and this should have the effect of reducing crime overall in society. They may not be magicians, but I would wager that once they start getting hit in the pocketbook enough times (deducted from the police budget, so it shouldn't be any extra cost to the taxpayers), they will start to be more proactive in dealing with the problem. It's inevitable.

It hasn't crossed your mind that the reason we have such large and expensive police forces might be because not having them didn't work?

 

[Stevicus]

It hasn't crossed your mind that the reason we have such large and expensive police forces might be because not having them didn't work?

That's a rather broad question which would require an examination of the history and evolution of modern urban police departments these days. As for whether or not having them didn't work, it depends on what period in history you're talking about. There's always been some form of law enforcement once a community grew large enough to need one.

But the question still might remain as to whether such large and expensive police forces are really that necessary, especially when they're tasked with engaging in an obsessive war on drugs and other such endeavors. If police resources are spread too thin, then reduce the number of tasks they're assigned to perform. And with smart cars coming on the scene, one of the biggest tasks of the police (traffic control and enforcement) will no longer be necessary.