My take on gun rights.

[toddwv]

I know that people from both sides of the aisle on this issue will probably not agree with me. My whole take on the private ownership of firearms is still in a bit of flux. On one hand, I see the devastation that a gun culture wreaks. On the other hand, I see the conflicting and somewhat counter-intuitive stats that high per capita gun ownership rates don't necessarily translate into higher rates of gun violence.

So my position has evolved into that of an attempted moderate so consider this as more along the lines of ruminating about my current stance as opposed to a position from which I refuse to budge.

First, my interpretation of the 2nd Amendment differs significantly from that of the more ardent supporters of gun ownership.

"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."

There are two points in the above phrase that stand out to me: 1) A well regulated Militia and 2) the right of the people. There is nothing about the individual right to bear arms in that statement, ANYWHERE. In addition, the sentence is preface by "A well regulated Militia", a clear reference to the old defense model of militias which the states control and regulate.

To keep this post fairly short and simplistic, to me this means that states have the right and responsibility to regulate who possess firearms/weapons. This seems like more of an abridgment against the Federal government, particularly when taken in view of the general feelings that the Founding Fathers held toward state sovereignty and the perils of a large standing military controlled by the Feds. So short translation: Yes, if New York wants to ban guns, then it is well in its rights and responsibilities to do so.

A second point that I would like to make that is somewhat divergent from the previous is that MUCH of the gun violence in the US including assaults, homicides etc are a result of the "War on Drugs". What have we gotten from a "War on Drugs", which should really just be called a "War on Minorities"? Higher violent crime rates, a well-funded police state and an illicit drug market that has been made into a very lucrative venture by the proscriptions that were intended to wipe it out.

If we dismantle the "War on Drugs" in a smart way, it will lower gun violence rates DRAMATICALLY and significantly fewer people will be calling for gun bans.

[slackmaster]

1. All nine members of the present Supreme Court disagree with you on the individual rights thing

If "the people" doesn't mean each and every person, as it does in the First and Fourth Amendments, then it means nothing.

[toddwv]

14. The 1st Amendment is worded differently than the 2nd.

"Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The wording of the 4th is similar at first glance:

"Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

but is modified "secure in their persons, houses, papers, and effects" modifies it to indicate the individual nature of the freedom.

[X_Digger]

19. See U.S. v. Verdugo-Urquidez for a definition of "The People"

" 'The people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "

[Name removed]

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[X_Digger]

3. The 14th amendment means that states don't get to pick and choose..

A state can't re-institute slavery (in contravention of the 13th) or deny women their votes (in contravention of the 19th), can they?

Then why should NY be able to ban all guns?

[toddwv]

15. The state has the right to regulate its militia.

The 13th Amendment is explicit in saying that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." The second clause states that it will be enforced at the federal level.

[X_Digger]

20. You said- "Yes, if New York wants to ban guns, then it is well in its rights and responsibilities.."

That would be effective repeal of the second amendment.

No dice.

But to your larger point, and your misinterpretation of the second..

"well regulated" at the time, and in this context meant 'well functioning'-

http://armsandthelaw.com/archives/WellRegulatedinold%20literature.pdf

In Item 1, Anne Newport Royall commented in 1822 that Huntsville, Alabama was becoming quite civilized and prosperous, with a “fine fire engine” and a “well regulated company”. I suppose one could make the case that the firefighters were especially subject to rules and laws, but the passage is more coherent if read, “They have a very fine fire engine, and a properly operating company.”

William Thackary’s 1848 novel (item 4) uses the term “well-regulated person”. The story is that of Major Dobbin, who had been remiss in visiting his family. Thackary’s comment is to the effect that any well-regulated person would blame the major for this. Clearly, in this context, well-regulated has nothing to do with government rules and laws. It can only be interpreted as “properly operating” or “ideal state”.

In 1861, author George Curtis (item 5), has one of his characters, apparently a moneyhungry person, praising his son for being sensible, and carefully considering money in making his marriage plans. He states that “every well-regulated person considers the matter from a pecuniary point of view.” Again, this cannot logically be interpreted as a person especially subject to government control. It can only be read as “properly operating”.

Edmund Yates certainly has to be accepted as an articulate and educated writer, quite capable of properly expressing his meaning. In 1884 (item 6), he references a person who was apparently not “strictly well-regulated”. The context makes any reading other that “properly operating” or “in his ideal state” impossible.

Secondly, let's look at the preamble to the Bill of Rights-

The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The Bill of Rights was intended as a 'the government shall not' document- "to prevent misconstruction or abuse of its powers"- not a 'the people can' document. Rights aren't limited by the bill of rights; rather the scope of protections of certain rights are set. If the Bill of Rights were a listing of all a person's rights, there would be no need for the ninth and tenth amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." respectively.)

And finally, let's look at the second amendment itself-

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.

Who does the right belong to? The militia? No, the people. See US v. Verdugo-Urquirdez for the salient definition of 'the people'.

Grammatically this can be broken down into two clauses- a prefatory clause and an operative clause. Similar wording can be found in other writing of the time, though it's fallen out of favor these days. For comparison, see Rhode Island's constitution, Article I, Section 20- "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject..". That construction- '{reason}, {statement}' exists today, but we usually swap the clauses- "I'm going to the supermarket, I'm completely out of soda." or we add in a 'because' or 'since'- "Since I'm completely out of soda, I'm going to the supermarket." or "I'm going to the supermarket because I'm completely out of soda."

I know that complex English is lost in today's twitter-ful and facebook-y terseness, but it really does pay to read older documents when you want to analyze what a sentence from that era actually means.

So with the point from the first section, the second section in mind, and rearranging the clauses per the third would yield a modern restatement of the second amendment as-

"Because a well functioning militia is necessary to state security, the government shall not interfere with the right of the people to be armed."

or

"The government shall not interfere with the right of the people to be armed because a well functioning militia is necessary to state security."

Nothing in either of those statements says that arms are only for militia service, rather the ability to raise an effective militia is _why_ protecting the right to be armed is protected. Since we know from the preamble (and the 9th/10th amendment) that the bill of rights is not exhaustive, we have to look outside the bill of rights itself to see if the founding fathers expected this right to extend beyond militia service.

State analogues of the second amendment that were adopted in the same timeframe give a clue-

http://www.davekopel.com/2A/LawRev/WhatStateConstitutionsTeach.htm (sections rearranged by me)

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."

Vermont: 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.."

Kentucky: The 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."

Delaware: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."

Alabama: The Alabama Constitution, adopted in 1819, guarantees "that every citizen has a right to bear arms in defense of himself and the state"

Arizona and Washington: These states were among the last to be admitted to the Union.* Their right to arms language is identical: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."**

(footnotes removed)

So from analagous documents created by many of the same founding fathers or their peers, the individual right unconnected to militia service is fairly well laid out.

* Admittedly, not analogous in time to the others, but still demonstrates the point.
** same

You should read other cases such as US v Cruikshank ("This right is not a right granted by the Constitution . . . neither is it in any manner dependent upon that instrument for its existence.") or Presser v Illinois ("the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government.")

Both the Heller and McDonald decision shed more light on the subject.

[Deep13]

4. I partly agree with your reading of the 2nd Am.

It has two clauses. The first talks about the necessity for states to maintain militias (community-based armies) for security purposes. It does not speak to individual protection, but only to state security.

The second notes that the "people's" right to keep and bear arms shall not be infringed. There are two things of significance to note about the second clause. First, as you say, "people" is a collective noun like group or army. The plural of person is "persons." It does not say "persons," but it does not say "states" either. Frankly, I think the choice of this somewhat vague term was the result of a compromise in wording because the drafters simply could not agree on who exactly the 2nd Amend. protects. They did not want unrestrictable individual ownership (which could include slaves), but they did not see it as exclusively a state power either.

The other point is that the 2nd does not actually create any rights. It simply says that whatever right to keep and bear arms that existed before the institution of the Federal govt. was protected from Fed. interference after 1787. Like the Bill of Rights generally, it is a restriction on Federal power.

That would pretty much end the discussion as far as state restrictions go except for a rather messy brawl that occurred in the middle of the 19th century. The 14th Amend. that followed guarantees that persons have the same rights against the state that U.S. citizens have against the Feds. I really don't know what that means in practice. Presumably, it does not bar all state regulation since state security and the ability to raise militias remains the purpose of the 2nd. On the other hand, total prohibition is probably not allowed under the 14th.

[toddwv]

16. +10

Well said. I believe that you did a much better job of stating your opinion than I did.

[Deep13]

21. Thanks. Three years of law school helps.

:evilgrin:

[damntexdem]

5. Although I tend to disbelieve in the individual-rights interpretation, it could be either way.

The issue is the "well regulated."

In any case, there has been a cultural history of individual gun ownership, and it is not smart to attack that.

What we need to RETURN to is the idea that of reasonable regulations that provide protections.

[kudzu22]

9. The meaning of "regulated" has changed in 230 years

Well-regulated meant well-functioning, or "in good working order" when the Constitution was drafted. A well-regulated clock keeps good time. It doesn't have a bunch of government rules telling it how to operate.

[Tuesday Afternoon]

11. +1

[Atypical Liberal]

13. Think "bowel movements" not "rules"

The issue is the "well regulated."

You need to understand that in the 18th century, "regulated" did not mean "burdened under rules and regulations". It meant "well functioning". For example, highly accurate clocks of the day were known as "regulators". These were used to set the time of more common, lesser-accurate clocks.

When considering the constitutional meaning of "well regulated", you need to think about it in the context of "regular" bowel movements. Militias were to be well-regulated just as your intestines should be well-regulated. It doesn't mean your intestines should be functioning within rules and regulations.

[toddwv]

17. I think that in my haste to be fairly brief, I left out an important part of my opinion.

I don't believe in the wholesale banning of firearms. I eluded to that in my post but failed to elaborate.

That was the purpose of the second portion concerning the "War on Drugs" and the related chart. I believe that if we phased out the war on drugs and legalized certain banned drugs, that this would all but collapse the illegal drug trade and its associated violence. Gun violence as a whole would dramatically decrease and the argument about banning firearms would be moot.

[aikoaiko]

6. If "the people" doesn't refer to the state or individuals, then who?

The people are us and not the government or the state.

[Deep13]

7. Yeah, but the govt. and the state are "us" too.

I think the drafters intentionally left it vague. "Well-regulated militias" are community-based armies, some distinct from state or national armies on the one hand or armed mobs on the other.

[kudzu22]

8. The apparent contradiction is easily explained

Many people are confused by the wording of the second amendment. It seems to reference militias in the first part, while protecting the rights of the people in the second part. So which is it? Does it protect militias or the people in general?

This is easily explained when you understand this:

THE PEOPLE + ARMS = MILITIA

That's it. A militia is ordinary citizens with arms. They can be called forth by a governor to defend against invasion, etc. The fact that we haven't had to is a testament to the benefits of the second amendment.

[Maine_Nurse]

10. I'd be happy for states to regulate firarms

We have a high rate of firearms ownership but a very low rate of firearms crimes. Firearms are tools and a way of life around here. If we don't have the problems that other places do, why should we need to enact solutions in search of problems?

[toddwv]

18. Exactly.

A local response to a local problem. West Virginia is the same. VERY high firearm ownership, VERY low gun violence.

[Atypical Liberal]

12. On individual rights and states.

There are two points in the above phrase that stand out to me: 1) A well regulated Militia and 2) the right of the people. There is nothing about the individual right to bear arms in that statement, ANYWHERE. In addition, the sentence is preface by "A well regulated Militia", a clear reference to the old defense model of militias which the states control and regulate.

First of all, do you believe that the right to free speech only applies collectively to groups of people, or do individuals also have the right to engage in speech, particularly political speech? Do you believe that only collective groups of people have a right to protection against unreasonable search and seizure, or do you believe individuals also have this right?

It should be clear that rights that "the People" possess also apply to individuals. Otherwise you get into absurd arguments about how many people need to gather and under what conditions and to whose satisfaction before they are considered a collective!

Second of all, in D.C. vs. Heller, all nine justices, including the dissenters, agreed that the right to keep and bear arms is an individual right.

To keep this post fairly short and simplistic, to me this means that states have the right and responsibility to regulate who possess firearms/weapons. This seems like more of an abridgment against the Federal government, particularly when taken in view of the general feelings that the Founding Fathers held toward state sovereignty and the perils of a large standing military controlled by the Feds. So short translation: Yes, if New York wants to ban guns, then it is well in its rights and responsibilities to do so.

You are right, in that the Constitution is a list of prohibitions against the federal government. However, we have what is called "incorporation". This means the states cannot abrogate certain rights, either. This was done, for example, to prevent the southern states from ignoring federal civil rights laws giving protection to African-Americans. So some rights in the Constitution are incorporated.

And guess what? With Chicago vs. McDonald, the Supreme Court held that the second amendment is incorporated under the 14th amendment under the Due Process Clause.

So, it is a matter of settled Constitutional law that the right to keep and bear arms is an individual right and it is incorporated under the 14th amendment.