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CTLawGuy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-27-07 01:59 AM
Original message
How I see the Second Amendment
Edited on Tue Nov-27-07 02:05 AM by darboy
(note: I am not a professonal attorney, this is just my semi-educated opinion)

"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." - The Second Amendment.

Some say the second amendment protects the right of "collective self-defense," essentially a state right that accrues only to people who are in a state militia.

Others say the second amendment is an individual right that has nothing to do with a militia.

Both positions are partially right and partially wrong.


It is my opinion that the second amendment protects two rights:

(1) the right of the states to have "well regulated Militia(s)" and
(2) the right of the "people" (meaning individuals) to "keep and bear" "Arms."

Right number (2) is derivative of right number (1). Put another way, what this convoluted sentence is saying is that BECAUSE a state has an interest in having a mode of self-defense against federal (and other) intrusion, we will protect the right of individual PEOPLE from Federal regulation of guns.

The second amendment was included, as was all of the rights in the Bill of Rights, to please the Anti-Federalists, the people who were suspicious of a powerful federal government. They would not accept the Constitution unless the Bill of Rights was included. They wanted to be able to keep people safe from a federal government gone amok.

I can't accept that the amendment only protects states and their militia activities because, if that were true, then why did they include the second clause in the amendment? "Each state shall have the right to a well-regulated milita" would have been fine. Also, it would be really easy for the federal government to get around the second amendment if they could regulate individual gun owners and possessors, thus hampering a state's ability to have a militia, even if not directly.

I also can't accept that it is an unlimited individual right either. If so, why did they include the first clause? "The right of the people to keep and bear Arms shall not be infringed." would have sufficed to vest a pure individual right. If it were a pure individual right, then the state would have a hard time "regulating" their militias "well."

In short, the second amendment, I believe, shields individuals from federal regulation of the possession and use of certain firearms.

This is what I believe the second amendment does NOT do:

(1) shield individuals from STATE regulation of firearms. The second amendment must ONLY apply to the federal government unless it is "incorporated" into the 14th amendment's due process clause. This is done right by right, amendment by amendment, by the Supreme Court. Certain amendments have been found to be incorporated: the 1st, 4th, 5th, 6th, 8th.

What is different about those amendments vs the second amendment is that the second amendment recognizes an interest of the states that is distinct from the federal interest. None of the incorporated amendments mention states, much less suggest that the individual rights are derivative of state rights. All the incorporated amendments are pure individual rights: the right to free speech, religion, freedom from unreasonable search and seizure, freedom from forced self-incrimination, due process, right to speedy trial, right of counsel, freedom from cruel and unusual punishment. Under these provisions, the states and the federal government have the exact same position against the individual.

This is not true of the second amendment. The state has an interest in having a "well-regulated militia". The federal government has no such interest. It makes no sense, therefore, to treat the states and the federal government the same way vis a vis the individual. Thus, I don't think the second amendment applies against state regulation.

(2) cover absolutely all weapons. It will cover only weapons that, according to a previous Supreme Court case from the 1930s, US v. Miller, reasonably could be employed in a well-regulated militia. That means no WMDs or bombs, or nuclear missiles or anti-tank weapons. Assault rifles are a closer question.

(3) apply to individuals while they are buying and selling guns in interstate commerce. The right is "to keep and bear Arms", not buy and sell. This means that once you've taken the gun out of commerce and put it in your home and started using it, the second amendment attaches. Before that, it does not apply. However, the federal government cannot use its power to regulate interstate commerce to deprive you of your right to keep and bear arms. Thus, federal regulations on sales and purchasing of guns will be scrutinized more heavily than usual to make sure the government has a legitimate reason for the regulation. (So the goverment cannot ban the sale of guns because that would effectively deprive you of the right to bear arms).

That's my take. I'll be interested to see what the Supreme Court does on this.
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provis99 Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-27-07 02:34 AM
Response to Original message
1. interesting points
Edited on Tue Nov-27-07 02:34 AM by provis99
"Keep and bear Arms" is strictly a military term. It would seem to imply that one would have to be a member of the militia to keep and bear arms. Also historically, the Founding Fathers envisioned having no standing army; the military land force would consist solely of the armed, regulated citizenry. They tossed that notion of not having a standing army aside pretty quick. Would that essentially render the Second Amendment moot, or at least essentially inert, like the Third Amendment?

Hamilton pretty much argued that these militias had to be regulated by the government (excluding the Michigan militia types). If you also look at the evolution of philosophies on military regulation and creation, thought in Britain and the daughter American colonies was moving away from an unreliable, massed citizenry, and towards professionalism in the military, especially after the poor performance of the militias in the Revolutionary War.

Jefferson himself relented on the idea that militias were the way to go, and a standing army wasn't such a threat to the government after all.

Of course, if one is a Constitutional originalist, then we should abolish the American Army and draft the mass citizenry into government regulated militias; there simply isn't any logic in claiming that the Second Amendment somehow represents the right of a civilian to own a gun. The Supreme Court has agreed with gun restriction laws in the past, and the NRA doesn't challenge the Court anymore.

I always wondered if there is somehow a civilian's right to "keep and bear arms", you never hear of a lobby to legalize civilians carrying billy clubs and sword canes around (it says, arms, not just guns). Something about the gun people though...
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Trillo Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-27-07 02:36 AM
Response to Original message
2. Not just any State,
Edited on Tue Nov-27-07 02:37 AM by SimpleTrend
a "free State", presumably versus a non-free state. Note also that it says "the 'security' of a free State".

One needs to understand the term militia. What is a militia? Where did that term come from?

My eyelids are closing, can't keep the discussion going. BTW, pay no attention to anything I write, it's of no "professional" importance.
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CTLawGuy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-27-07 10:03 AM
Response to Reply #2
4. off to bed with you
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Squatch Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-27-07 06:54 AM
Response to Original message
3. Either way, you can't have a militia without individuals
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