My Issue With The 2008 Second Amendment Decision

[`mud]

In the era of muskets !
The argument goes on !
And the muskets are gone !
And the clips are here !
And death count is building !
The argument goes on !

 

[Revoltingest]

In the era of muskets !
The argument goes on !
And the muskets are gone !
And the clips are here !
And death count is building !
The argument goes on !

We call them "magazines" or "mags".
A "clip" is something different.

This matters!
I feel better now.

 

[Stevicus]

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.
.

You make some good points, although why would there need to be a separate amendment which allows the government to arm its own military force? It's like saying that soldiers have a right to wear uniforms. Or that members of the swimming team have a right to swim. It's implied in the job title and would include whatever standard equipment is needed.

Even without the Second Amendment, the government would still have the prerogative to arm (or even draft) individuals for the purpose of military service. An actual amendment is not required to carry out this function, so why would there be any amendment at all related to the ownership of firearms?

 

[sandy whitelinger]

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.

The US Constitution allows for change. Good luck with that.

 

[Revoltingest]

You make some good points, although why would there need to be a separate amendment which allows the government to arm its own military force? It's like saying that soldiers have a right to wear uniforms. Or that members of the swimming team have a right to swim. It's implied in the job title and would include whatever standard equipment is needed.

Even without the Second Amendment, the government would still have the prerogative to arm (or even draft) individuals for the purpose of military service. An actual amendment is not required to carry out this function, so why would there be any amendment at all related to the ownership of firearms?

Regarding the draft, it is clearly prohibited by the 13th Amendment.
But the mischievous Supreme Court ignores this proscription, ruling
that involuntary servitude is OK....when they approve of it.
Ref...
The 13th Amendment: Slavery And Involuntary Servitude - National Constitution Center
And the 14th Amendment doesn't apply either....when they don't want it to, eg,
drafting people based upon gender, lottery number, lack of political connections,
sexual orientation, trans status, religion, clergy.
Ref...
Equal Protection Clause - Wikipedia
Beware the USSC, which is often just a puppet show serving government.

 

[`mud]

hey Rev,
Clips or magazine clips or mags.........
the more shells and `slugs` are in them,
the more deaths they can cause.
But we all know the real `cause`, don't we.
And most ads I see, called them `clips`,
and also extensive clips.
The difference is not important,
it's the finger squeezing the trigger !

 

[Revoltingest]

hey Rev,
Clips or magazine clips or mags.........
the more shells and `slugs` are in them,
the more deaths they can cause.
But we all know the real `cause`, don't we.
And most ads I see, called them `clips`,
and also extensive clips.
The difference is not important,
it's the finger squeezing the trigger !

I'm a pedant to the end.

 

[Nous]

I don't think so really - asserting the right of individuals to 'bear arms' implies that the arms to be 'borne' are 'bearable' by individuals...I think any reasonable interpretation then or now would have excluded battleships, tanks, cannons etc. It is interesting though whether it would have excluded eminently 'bearable' weapons like grenades then (I just don't know how or if that was regulated somehow - they were certainly used in the Civil War - but I suspect it was not actually regulated before the 1930s) - obviously live grenades are illegal now along with other explosive devices and fully automatic weapons.

Actually Justice Stevens' dissent in Heller most thoroughly examines the phrase "to keep and bear arms" in the Second Amendment:

“To keep and bear Arms”​

Although the Court’s discussion of these words treats them as two “phrases”--as if they read “to keep” and “to bear”--they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities.

As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v. District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of confrontation.” Ante, at 19. No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text doesjustify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.

The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma].” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of theEnglish Language(1755), and another contemporaneous source explained that “[ b ]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794).8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.9 The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.10 But when discussing these words, the Court simply ignores the preamble.

The Court argues that a “qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass.” Ante, at 15. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.11 The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare ante, at 10 (defining “bear arms” to mean “carrying [a weapon] for a particular purpose—confrontation”), with ante, at 12 (“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against.’ ” (citations and some internal quotation marks omitted)).​

DISTRICT OF COLUMBIA v. HELLER

 

[`mud]

Do you shake only once.....or shake it ?
Good to the last drop, as we say, especially with slugs !
Pedant that...

 

[Revoltingest]

Do you shake only once.....or shake it ?
Good to the last drop, as we say, especially with slugs !
Pedant that...

Inscrutable you are.
Confused I am.

 

[`mud]

Slugs in a clip(mag)
One shot a time, shake it a lot, automatic.
Till the (mag) is empty.

 

[wandering peacefully]

Actually Justice Stevens' dissent in Heller most thoroughly examines the phrase "to keep and bear arms" in the Second Amendment:

“To keep and bear Arms”​

Although the Court’s discussion of these words treats them as two “phrases”--as if they read “to keep” and “to bear”--they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities.

As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v. District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of confrontation.” Ante, at 19. No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text doesjustify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.

The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma].” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of theEnglish Language(1755), and another contemporaneous source explained that “[ b ]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794).8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.9 The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.10 But when discussing these words, the Court simply ignores the preamble.

The Court argues that a “qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass.” Ante, at 15. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.11 The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare ante, at 10 (defining “bear arms” to mean “carrying [a weapon] for a particular purpose—confrontation”), with ante, at 12 (“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against.’ ” (citations and some internal quotation marks omitted)).​

DISTRICT OF COLUMBIA v. HELLER

Iow, when it is necessary for a militia to be activated, no one is allowed to pevent members from bearing arms. Otherwise, why even mention militias in the phrase? It would have been left out or indicated in a different paragraph.

 

[esmith]

Slugs in a clip(mag)
One shot a time, shake it a lot, automatic.
Till the (mag) is empty.

Hey @'mud just to get a point across and further your education.
Slugs are only used in shotguns and they take the place of the "shot".
It helps if one knows what they are speaking about for one to take them seriously, that is except for those who lack knowledge in the world of firearms who will follow any piped piper that furthers their ideas.

 

[Nous]

Iow, when it is necessary for a militia to be activated, no one is allowed to pevent members from bearing arms. Otherwise, why even mention militias in the phrase? It would have been left out or indicated in a different paragraph.

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.

 

[`mud]

hey Esmith,
I guess the `core` is the active part of the bullet.
I used the term `slug` as I'm not familiar with the `art` of killing things,
especially humans, forget my ignorance.
I guess the trigger finger is the most dangerous part of any gun or rifle.
One must try to stay on the rear of the firing, must one ?
I appreciate the instruction on how to know the differences.
Thank you for your expertise, maybe I'll run out and buy a AR15 now.

 

[esmith]

hey Esmith,
I guess the `core` is the active part of the bullet.
I used the term `slug` as I'm not familiar with the `art` of killing things,
especially humans, forget my ignorance.
I guess the trigger finger is the most dangerous part of any gun or rifle.
One must try to stay on the rear of the firing, must one ?
I appreciate the instruction on how to know the differences.
Thank you for your expertise, maybe I'll run out and buy a AR15 now.

As long as you are knowledgeable in the safe operation of firearms. Would prefer if you joined the NRA first.

 

[Revoltingest]

hey Esmith,
I guess the `core` is the active part of the bullet.
I used the term `slug` as I'm not familiar with the `art` of killing things,
especially humans, forget my ignorance.
I guess the trigger finger is the most dangerous part of any gun or rifle.
One must try to stay on the rear of the firing, must one ?
I appreciate the instruction on how to know the differences.
Thank you for your expertise, maybe I'll run out and buy a AR15 now.

That big gray organ between the ears is the most dangerous.
(And they're scary looking too.)

 

[`mud]

Naw........it's not the organ itself.....it's the thoughts that it contains !

 

[Skwim]

The grammatical argument has some shortcomings.....
1) The 2nd Amendment ("2A") isn't a conditional clause which requires militia membership in order to enjoy the right.

Your right, it isn't. It's a complete sentence.

2) The 2A states the necessity of the militia as a reason for the right to bear arms,

THANK YOU. At least we have one conservative, pro-gunner here who acknowledges the fact.

but doesn't limit this as the singular reason.

Sure it does. Think its creators were so sloppy as to think, "Hey, there are a lot of reasons to assure the people they have the right to keep and bear arms, but let's just pick one and list it"? Of course they weren't. Thing is, there would be no reason to assure the people they have the right to keep and bear arms at all if it wasn't for some particular concern. If there were numerous reasons there would be no need to even draft such a guarantee. Just as no amendment was created to assure people they had the right to build homes on their property. However, because the need to establish a militia was so vital for the security of a free state it was felt necessary to provide a way it could be assured. Hence, the Second Amendment.

3) The various definitions of the "militia" used by the Constitution's framers are quite broad, not requiring active participation or organization.

Makes no difference.

4) The 2A also has roots in English common law's right to self defense.

Makes no difference.

5) Even if the stated reason in the 2A were deemed obsolete by the USSC, the 2A doesn't provide for eliminating the right.

You're correct, it qualifies the right.

6) The USSC lacks the power to deem militias obsolete.

Okay. but so what

7) To be included in the Bill Of Rights indicated a right of such importance that it was needed in order to ratify the Constitution. Such a right, if it were to be removed, shouldn't be doable by congressional or USSC fiat. An amendment would be appropriate.

Okay.

.

 

[Skwim]

How exactly would you determine that such a reason no longer exists?

We have the National Guard. Plus, so far no one has seen any need to establish such a well regulated militia. Not a member of such a well regulated militia, then no Constitutional right to keep and bear arms, IMO.

.