2nd Amendment ---- and other superfluous provisions

[andyfox]

Aymette v. State (1840), involved the constitutionality of a Tennessee law against bowie knives. The court said that the only weapons entitled to constitutional protection were those connected with the militia. Bearing arms, the court concluded, referred to an activity that was exclusively military in nature:

"A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for for forty years, and yet, it would never be said of him, that he borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk, or pistol concealed under his clothes, or a spear in a cane."

Although the court acknowledged that militia weapons were constitutionally protected, it accepted that the state could still regulate the manner in which these weapons might be kept or borne. Weapons that had little connection to military prepareedness were not given any constitutional protection. In the view of the Aymette court, the legislature enjoyed the widest possible latitude to regulate pistols or other weapons that had negligible value in promoting the maintenance of a well-regulated militia.
http://www.cs.cmu.edu/afs/cs.cmu.edu...te_v_state.txt

Two years later, in State v. Buzzard, the Arkansas Supreme Court held that the purpose of bearing arms was not to "enable each member of the community to protect and defend by individual force his private rights against every illegal invasion." Protection of this estimable right was intended to "enable the militia to discharge" their important public trust." http://www.guncite.com/court/state/4ar18.html

[Zeno]

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Maybe Jefferson had it right and maybe he had it wrong. But what is certain is that what he had in mind was not in the mainstream of what the Framers of the Constitution and his fellow Virginians had in mind. And not what is in the constitution.

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Fair statement.


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And not what is in the constitution.

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As originally intended by the Framers. Can that original intent change without the actual words changing?

By the way, great posts throughout this and other related threads Andy, Kudos. Gave me much to think about. Thank You.

And in that light this will spur me to make a post that will be cast on the winds of the politics forum - an important thought experiment for my own curiosity and also to get the masses out of the doldrums and into a free thinking mode, or not.


-Zeno

[AlexM]

You know, even if only apply the 2nd amendment specifically to "militia" it changes nothing.

militia:

3. all able-bodied males considered by law eligible for military service.

So... you're saying just men can own guns? That doesn't seem fair. [img]/images/graemlins/grin.gif[/img]

[betgo]

If you are allowed to keep a weapon that you would use in the militia, then you should be allowed to posess a standard military weapon, which today would be a submachine gun.

[andyfox]

But if there's no well-regulated militia--its duties today being done by the police, the military, the national guard, etc.--what need for the weapon?

[andyfox]

The militia was an important institution at the time the Constitution was drafted; it is not today.

[andyfox]

"Can that original intent change without the actual words changing?"

Well, that's an interesting question. I'm kind of surprised that nobody has yet taken me to task for arguing an original intent case here, when I have made it clear, in previous threads, that I don't believe there is any such thing as original intent, or that, if there is, it is almost impossible to determine. In the case of the 2nd amendment, however, people are allowing the differences in grammar and sentence construction from Madison's time to ours to obscure the clear meaning of the amendment. All the contemporary debates about the amendment back up my interpretation of the sentence. Some will find quotes from Patrick Henry or somesuch about "the people," but they clearly were referrring to the people as constituted in the militias, which were an everyday, vital part of society at the time.

If the current case makes it to the Supreme Court, the conventional wisdom is that the court will decide that it is an individual right. Probably, but maybe not. We'll get to see if Scalia is really an originalist or just another ideologue justifying his preferences with intellectual hooey. If the court denies the individual right position, proponents should go the amendment route; if any amendment has a chance of passing, it would be, one would think, a gun rights amendment.

I look forward to your thought experiment post.

[John Kilduff]

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The militia was an important institution at the time the Constitution was drafted; it is not today.

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At the moment the militia appears to be not important. However, that could change over time, as governments, and wars, change over time; so it is important to not castrate the ability of the American populace to form a militia should one be needed in the future. If a militia is ever needed again, not having one, or not having the ability and means to form one, would be far worse than any problems that occur today as a result of the populace having access to weaponry.

Wacki stated something to the effect that historically speaking, you are 45 (was it 45?) times more likely to be killed by a government than by a criminal. An armed populace is VITAL to future security, given the history of the world, the history of governmental oppressions, and the history of warfare and aggression. That we are lucky enough, at the moment, to live in relative security in a relatively secure place, does not mean that that is the normal state of affairs for humans. Things change over time, governments change, balances of power change. If the need for a militia should arise again (did I say "if"? let's change that to "when", which is actually more likely), it will be too late if the populace has been already disarmed.

Apologies for all the italics but they seemed appropriate as I was writing it [img]/images/graemlins/wink.gif[/img]

You do seem to have a great deal of faith in government at present. What about government of posterity, and in the future, though? Do not histories of governments (and wars) throughout the ages show that a militia will probably be needed in the future? (f not in our lifetimes, in our grandchildren's, perhaps.) Human history shows that groups of people who are disarmed will inevitably get horribly punished - it is just a matter of when.

[andyfox]

I live in Los Angeles; I think I have a much better chance of being harmed by gangs than by the government:
http://www.lapdonline.org/assets/pdf/cityprof.pdf

Of course, I might be biased, my son is LAPD.

But my point in this, and the related, thread, was not to argue the wisdom or lack thereof in an armed citizenry; but rather to talk about what the second amendment does or does not say.

[pvn]

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I live in Los Angeles; I think I have a much better chance of being harmed by gangs than by the government

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Of course, government action is the primary cause of the gangs you have to worry about.