re:2nd amend from el diaablos

[elwoodblues]

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

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I'm not Andy, but I think it is absolutely clear that the Second Amendment does not apply to the states (at least until the 14th Amendment came along which has been interpreted to apply many of the rights in the bill of rights to the states --- though not the 2nd Amendment.) States, cities, towns can regulate guns however they want without running afoul of the 2nd Amendment.

[andyfox]

Not sure. Isn't it the case that state laws can't contradict federal laws?

[John Kilduff]

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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."



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I agree with you that that is what it means; but my conclusion from that wording is apparently quite different than your conclusion.

Let's say the 2nd Amendment were worded precisely as you just now put it above: wouldn't that still mean that individual rights to bear arms could not be infringed?

Providing a reason for something is not the same thing as stipulating a limitation. The right to bear clause is still adamant and clear. Providing a reason for something does not necessarily imply that in the absence of that reason, the other something would have no raison de etre.

If the 2nd Amendment had been worded :"As long as a well-regulated militia remains necessary for the security of a free state; the right of the people to keep and bear arms shall not be infringed"...then you would have a very solid point, and debate could next turn to whether or not a militia is necessary in this day and age for the security of a free state. That however is not how the 2nd Amendment is worded, and neither is it how your substitute phrasing (as you understand it) of the 2nd Amendment is worded.

Also, let's note that the 2nd Amendment doesn't equivocate even slightly about the necessity of a well-regulated militia to a free state: it declares it to be true (and I think that is a timeless and valid declaration, and I think the Founders were wise enough to know it).

I believe that even in this day and age, a well-armed populace (which could form a militia if needed) is necessary for the security of a free state.

[andyfox]

"Let's say the 2nd Amendment were worded precisely as you just now put it above: wouldn't that still mean that individual rights to bear arms could not be infringed?"

No. Because by bearing arms, the Framers were referring specifically to militia and other military applications. The fact that there were so many laws infringing on individual rights to arms at the time makes this clear, as does the contemporary discussion and debate. (Although I still want to look at Wacki's video link, which I am unable to do until I use a different computer at home tonight.)

People at the time had a great fear of a standing army. So, against that, they relied on the militias as a citizen’s army in which all (white) men essentially would be forced to contribute their labor, their time, and their own gun and their own ammunition as the guardians of public defense.

[andyfox]

I just watched the video. I don't get what I'm supposed to get from it. The speaker simply asserts, without evidence, that the second amendment was always seen as an individual right. This is simply not true.

[PLOlover]

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I'm not Andy, but I think it is absolutely clear that the Second Amendment does not apply to the states (at least until the 14th Amendment came along which has been interpreted to apply many of the rights in the bill of rights to the states --- though not the 2nd Amendment.) States, cities, towns can regulate guns however they want without running afoul of the 2nd Amendment.

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Yeah I think really the 9th 10th amendment make it clear that it's a state issue, a state crime issue. The only real justification for federal crime laws are interstate commerce and that's really pretty dumb in most instances.

I think most rational people would agree that when it comes to guns the feds should have nothing to do with gun laws and that kind of thing and leave it to the states in almost all cases.

I mean randy weaver had his family killed by the feds because supposdedly he had a gun that was 1/4" too short? That's just ridiculous. It's like having the US army come and invade your house and stand you up and shoot you because you have an unpaid city parking ticket. It's just completely out of control.

[nef]

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None of the early state constitutions adopted language protecting an individual right to keep or carry arms for personal self-defense. All of the language concerning the right to bear arms centered around militias.

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I don't think that is accurate.

Connecticut: Every citizen has a right to bear arms in defense of himself and the state (1818). 2

Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792). 3

Massachusetts: The people have a right to keep and to bear arms for the common defence (1780). 4

North Carolina: [T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power (1776). 5

Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power (1776). 6

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790). 7

Rhode Island: The right of the people to keep and bear arms shall not be infringed (1842). 8

Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796). 9

Vermont: [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777). 10

Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. 11

http://www.law.ucla.edu/volokh/2amte...urces.htm#TOC1

[andyfox]

All of the phrases "bear arms" were clearly meant for military means. Note that the statutes refer to "common defence," "a well-regulated militia," and the fear of "standing armies." Professor Volokh's reading of these laws as an individual right to arms outside of a military or militia context is just plain wrong.

[nef]

Introduction

"The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms." 1 This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions -- perhaps to the point of reading it as having virtually no effect on government action. 2

My modest discovery 3 is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island's 1842 constitution, its first, provides

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 4

Compare this to the Second Amendment's

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. 5

The 1784 New Hampshire Constitution says

In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 6

The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever. 7

I list dozens more such provisions in the Appendix.

These provisions, I believe, shed some light on the interpretation of the Second Amendment:

1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause. 8
4. They point to how the two clauses might be read together, without disregarding either.

The provisions also suggest two things about interpretation more generally. First, they remind us that the U.S. Constitution is just one of the at least fifty-one American constitutions in force today, and one of the dozens of constitutions that existed during the Framing era. 9 The legal academy's understandable focus on federal matters can blind us to some important details.

http://www.law.ucla.edu/volokh/common.htm

[nef]

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All of the phrases "bear arms" were clearly meant for military means. Note that the statutes refer to "common defence," "a well-regulated militia," and the fear of "standing armies." Professor Volokh's reading of these laws as an individual right to arms outside of a military or militia context is just plain wrong.

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I am not saying anything about the militia, I acknowledge the role of the militia. You said none of them were about personal self defense.

Some of them explicitly state "in defense of themselves AND..." Is this just another case of Constitutional provisions that don't mean what they say?

ETA:

What distinction are they drawing when they use both "themselves" and "the State"?