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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsOriginal intent and the second amendment
Not a legal maven, far from it, but I think that Scalia, and, perhaps Alito and Gorsuch followed this doctrine by which one interprets the Constitution according to what was meant in 1776. This is why they oppose the right to privacy that brought Roe v. Wade.
So... I wonder what was the original intent in declaring the right to bear arm. What kind of weapon? Musket? I am sure that the framers did not anticipate weapons of mass destruction like the various AR and AF.
elleng
(130,156 posts)what about this, it says: '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 the Heller decision decided to 'trash' the words 'A well regulated Militia.' WTF, I've thought ever since.
MarvinGardens
(779 posts)that they threw one in granting police power to the states.
X_Digger
(18,585 posts)Look at the preamble-
Misconstruction or abuse of whose powers? declaratory and restrictive clauses against whom?
The bill of rights is a 'the government shall not' document, not a 'the people can' document.
question everything
(47,271 posts)and, I suppose, the 10th Amendment hints at States Right?
Thank you for this post
X_Digger
(18,585 posts)It flies in the face of the whole enlightenment philosophy, that right exist, and governments exist to protect them.
It's dangerous because what's been "granted" can be taken away.
Imagine that the second amendment were repealed. The right wouldn't go away, it would simply then become an unenumerated right protected by the ninth.
There are rights we have that aren't even in the Bill of Rights. e.g. the right to travel (not about airplanes, more about moving between states.)
MarvinGardens
(779 posts)I have said elsewhere on DU (for example) that self-defense is a human right that exists independently of the 2nd Amendment. There is also the Ninth Amendment that recognizes such unenumerated rights.
MarvinGardens
(779 posts)The framers did not envision radio waves or the internet either. Why should the owners of this website receive First Amendment protection? Or anyone saying anything over radio or TV? It is not "the press" as existed back then. And I could argue that it isnt "speech" once it is translated into electronic signals.
Sancho
(9,065 posts)The Second Amendment: A Biography Paperback May 26, 2015
by Michael Waldman (Author)
At a time of increasing gun violence in America, Waldmans book provoked a wide range of discussion. This book looks at history to provide some surprising, illuminating answers.
The Amendment was written to calm public fear that the new national government would crush the state militias made up of all (white) adult menwho were required to own a gun to serve. Waldman recounts the raucous public debate that has surrounded the amendment from its inception to the present. As the country spread to the Western frontier, violence spread too. But through it all, gun control was abundant. In the twentieth century, with Prohibition and gangsterism, the first federal control laws were passed. In all four separate times the Supreme Court ruled against a constitutional right to own a gun.
The present debate picked up in the 1970spart of a backlash to the liberal 1960s and a resurgence of libertarianism. A newly radicalized NRA entered the campaign to oppose gun control and elevate the status of an obscure constitutional provision. In 2008, in a case that reached the Court after a focused drive by conservative lawyers, the US Supreme Court ruled for the first time that the Constitution protects an individual right to gun ownership. Famous for his theory of originalism, Justice Antonin Scalia twisted it in this instance to base his argument on contemporary conditions.
In The Second Amendment: A Biography, Michael Waldman shows that our view of the amendment is set, at each stage, not by a pristine constitutional text, but by the push and pull, the rough and tumble of political advocacy and public agitation.
Igel
(35,197 posts)Because the technology was in flux at the time. Yes, there were muskets. They were older.
But rifling was a recent introduction, and rifles were around. They could have referred to muskets; they could have referred to rifles. They could have referred to other things. They chose not to refer to any specific technology. In an age where we write things slapdash, knowing that we can correct them on the fly, issue retractions and clarifications and really care about being precise to the extent we care about being fair or truthful, it makes no sense. But while reading something from the 1860s today I was reminded that the words I read were penned in rough draft, and then copied over by hand, slowly; that they were then set by hand, and the proofs corrected only with a fair amount of difficulty. In other words, the 1860s were an age where you pondered your words and put thought into them when writing them, and made sure that corrections mattered.
They said "arms." They didn't accidentally type in "friearms" and have spellcheck correct it in a text that they could easily fix. The imprecision was bound to be intentional--perhaps because somebody wanted it to be specific and others refused, perhaps because they knew technology had changed rather markedly in their lifetimes and realized it might yet change again.
They chose "arms". That doesn't need to mean "firearm", it doesn't need to mean "musket" or "rifle".
"Bear" typically means "to carry," so cannons are ruled out. Even the nominative absolute construction had an ambiguous range of meanings, as does the various absolutive constructions in Latin (or "mine," Slavic). It would have cost nothing to be precise, but again, they chose ambiguity in what's now a fairly obsolete construction.
dflprincess
(28,057 posts)and I'm sorry to nitpick but I can't help myself when it's history.
The Constitution was written & ratified in 1787; the Bill of Rights followed in 1791 (ratification was December 15, 1791).
Not that there had been a lot of change in weapons between 1776 and 1791.
question everything
(47,271 posts)X_Digger
(18,585 posts)Pennsylvania (1790): "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."
Vermont (1777): "That the people have a right to bear arms for the defence of themselves and the State.."
Kentucky (1792): Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791. Kentucky declared: "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."
Alabama (1819): guarantees "that every citizen has a right to bear arms in defense of himself and the state"
The founders did indeed see semi-automatic, magazine-fed firearms. The Girandoni air rifle fired 20 rounds from a tubular magazine at velocities approaching today's 45 caliber round.
Poiuyt
(18,087 posts)Karadeniz
(22,283 posts)Aboard. They had slave patrols that roamed about, checking to see that noone had runaways and generally showing who had power. I've also read it was wanted in order to kill off indians as the territory expanded.
wiggs
(7,788 posts)X_Digger
(18,585 posts)The present-day Pennsylvania Constitution, using language adopted in 1790, declares: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."
Adopted in 1777, the Vermont Constitution closely tracks the Pennsylvania Constitution. It states "That the people have a right to bear arms for the defence of themselves and the State.."
These states that already had a strong protection for the right to keep and bear arms for themselves and the state before the federal second amendment?
Go ahead, pull the other one, it's got bells on it.
MarvinGardens
(779 posts)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, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.
I wonder: why did they feel the need to add that qualifier about concealed weapons? They could have left in the old language that was similar to the 2nd Amendment and that of other states, if it was just an uncontroversial old passage that, rather than protecting an individual right, instead weirdly protected the power of the state to do something they already had the power to do (exercise police power). Hmm.
question everything
(47,271 posts)MurrayDelph
(5,281 posts)was a smokescreen Scalia would use to retrofit the result he wanted in the first place.
moondust
(19,917 posts)The context of 2A is expressly stated as it begins:
"A well regulated Militia, being necessary to the security of a free State,"
Context is everything.
I think it's debatable whether the militia they were referring to was a "national defense" militia of private citizens organized for the protection of the country from hostile foreign armies BEFORE THERE WAS A STANDING ARMY, or possibly militias (slave patrols) that were used to hunt down escaped slaves which may have been a demand by slave states to enable passage, or BOTH.
Either way, militias became obsolete when a standing army was established and the slaves were freed, and 2A should have been repealed or severely restricted similar to Australia and New Zealand no later than the beginning of the 20th century IMO.
hunter
(38,264 posts)... just as denying women the right to vote was bullshit.
Gun fetishes are disgusting.
Maybe we should approach guns as a public health problem like smoking.
I've seen a lot of progress in my life in regards to smoking in public places, especially places like airliners, restaurants, and grocery stores.
Very few people now claim smoking is a healthy satisfying habit.
U.S.A. gun culture is similarly unhealthy.