re:2nd amend from el diaablos

[andyfox]

"lawyers and judges are ruining the Constitution by ascribing and applying meanings to it which run contrary to plain meanings and to common sense."

With all due respect, you want us to ignore the opening of the 2nd amendment, saying it's simply explanatory and has no meaning in regard to what the amendment says. How is this "plain meaning" or "common sense"? The words are there for a reason, that reason being that the right to keep and bear arms related to the civic duty to be part of a militia, not the right to have and use weapons for personal reasons. All the debates over arms in the press at the time of ratification, and in the states over their State Constitutions, concerned militias and standing armies. Two states, Massachusetts and Virginia, debated individual rights to arms, and the proposed laws were rejected. In Virginia, the law was proposed by Thomas Jefferson, whose thinking on this matter, as I pointed out in another post in this thread, was out of the mainstream on this issue (and others as well).

[natedogg]

Luckily this is a moot issue. The tide has turned against the gun controllers and it's no coincidence that their position has weakened during a period where violent crimes have dropped DESPITE LAX GUN CONTROL LAWS.

It looks like gun control is dying with this ruling. D.C. used to be the feather in the cap of the gun grabbers but even that has been taken from them. It's over.

natedogg

[AlexM]

[ QUOTE ]
It is clearly not an explanatory note. There is no other example in the Constitution of an explanatory note.

[/ QUOTE ]

There are a few others.

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States"

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Furthermore, the way it's worded makes it blatantly obvious that it's descriptive:

"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."

That "being necessary to the security of a free state" is descriptive, no ifs ands or buts about it. You might question whether the militia bit is descriptive, but since the sentence makes no sense when you remove that obviously purely descriptive bit, it's also clear that the miliitia bit is part of it.

[andyfox]

"I challenge you to find a single pre-20th century quote that refers to the 2A as anything but an individual right."

I challenge you to find a single contemporary reference to the 2A that referrred to it as an indiidual right. The overwhelming preponderance of usage of the phrase "bear arms" in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service, especially in the militia. The most famous example is in the Declaration of Independence, where is clearly refers to military duty on a ship:

"He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country."

Here is what Alexander Hamilton had to say, in Fedralist #29, to answer opponents of the Constitution who were worried that the right to "bear arms" was not protected:

"The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. [. . . ]

"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security."

The discussion involves the militia, not an individual right to arms.

Here is the original text of the 2nd amendement, as proposed by James Madison:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

The Bill of Rights that Madison introduced were not numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The right to keep and bear arms was to be inserted in Article 1, section 8 that specifies Congress's power over the militia.

All subsequent debate concerned the militia, because this is what the proposed amendment was addressing. Examples:

"Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown."

"Mr. Sherman — Conceived it difficult to modify the clause and make it better. It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other — but he did not see an absolute necessity for a clause of this kind. We do not live under an arbitrary government, said he, and the states respectively will have the government of the militia, unless when called into actual service; beside, it would not do to alter it so as to exclude the whole of any sect, because there are men amongst the quakers who will turn out, notwithstanding the religious principles of this society, and defend the cause of their country. Certainly it will be improper to prevent the exercise of such favorable dispositions, at least while it is the practice of nations to determine their contests by the slaughter of their citizens and subjects."

[natedogg]

[ QUOTE ]
Key excerpt below (bolded parts referring to 2nd Amendment):


"A U.S. appeals court struck down a three-decade-old District of Columbia law that bans residents from keeping a handgun in their homes, saying the Constitution's Second Amendment protects an individual right to bear arms."

and further

"Lawyers for the District of Columbia, which banned residents from owning handguns in 1976 for public safety reasons, argued that the amendment guarantees the right to bear arms only for members of a militia. The appeals court rejected that argument in today's 2-1 ruling. ``There are too many instances of `bear arms' indicating private use to conclude that the drafters intended only a military sense,'' Senior Judge Laurence Silberman wrote for himself and Judge Thomas Griffith. Judge Karen Henderson dissented, saying that because the capital district isn't a state, the Second Amendment doesn't apply to it."

Bloomberg

There is significant speculation that this may eventually lead to a U.S. Supreme Court case.

[/ QUOTE ]

One reason why you can't limit the provision to 'militias only' is that who determines what consitutes a militia?

If you have only militias allowed guns, then either the provision is meaningless ("I'm a militia!") or the right is meaningless ("Dear Big Brother, do we count as a militia?").

natedogg

[andyfox]

The militia was a fundamental part of life at the time of the debates on the Constitution and there was no doubt or debate on what it was.

[andyfox]

It is clear to me that the language of the 2nd amendment says:

"Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

It seems the crux of the disagreement in this thread is that some say it doesn't matter that the phrase about a militia is there, it's simply one example of why the right to keep and bear arms is to be protected; whereas I say bearing arms was clearly understood in a military sense, as contemporary usage shows, and that the phrase referring to the militia confirms that this was what was meant.

[wacki]

[ QUOTE ]
I challenge you to find a single contemporary reference to the 2A that referrred to it as an indiidual right.

[/ QUOTE ]

I accept your challenge.

My answer: Given the examples I have seen, there are probably hundreds. Watch that documentary I linked to. It has lots of pictures of the original letters from those that wrote the bill of rights, press releases, newspaper articles, etc. Yes military duty was used to promote the cause but the word "individual" was used many times in reference to the 2A.

time is short will be back late night.

[andyfox]

Can't do it here; will watch it tonight though.

[tolbiny]

[ QUOTE ]
It is clearly not an explanatory note. There is no other example in the Constitution of an explanatory note. It is clear that the militia was an important institution in colonial America, in light of the Framers' distrust of standing armies, and that the clause explains the context in which the right to keep and bear arms was not to be infringed.

[/ QUOTE ]

Andy,
what would you say to the interpretation that the 2nd amendment prevents federal regulations without preventing individual state regulations?