Quez
Footballguy
I'mean just playing devils advocate here, but I could already see the headlines "new gun restrictions unfairly target Muslims".
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House Democrats hold sit in over gun control (1 Viewer)
- Thread starter timschochet
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bueno
In a class by himself
I don't think they're contradictory.
The point of the Second Amendment is not to ensure that the militia is well-trained (or well-functioning). That wouldn't go in the Bill of Rights. The Bill of Rights is about preventing the federal government from overstepping its bounds and infringing the rights of the people or of the states. If the Constitution wanted to ensure anything about how the militia should be trained or organized, that would go somewhere else, not in the Bill of Rights.
And in fact, there are some clauses along those lines in Article I (which generally pertains to the powers of Congress). Article I gives Congress the power to call up state militias to have them fight on behalf of the federal government if there's a war or an insurrection or whatever. It also says that Congress has the power to organize the militias, but that training them should be left to the states.
There are a lot of compromises in the Constitution because the framers didn't agree on everything. The disputes between the Federalists and the Anti-Federalists took center stage on many issues, including those relating to the state militias.
In short, some of the framers were quite worried that the federal government, with its fancy army, would abuse its power and oppress the states. Others thought that fear was overblown. The first group didn't want the federal government to have the power to organize the state militias -- since the power to organize is the power to disarm. After all, the states may need to use their militias to revolt against the federal government if it got out of line. The second group said, "Relax, the state militias will be fine. It's not like the federal government has the power to take people's guns away. Here, have an Amendment to calm your nerves."
So the Second Amendment is part of a compromise giving the federal government a lot more power over the state militias than the Anti-Federalists would have liked, but not so much power that it could disarm the populace.
In my view, the question of whether the Second Amendment provides an individual right or a states' right was never considered by the framers, and didn't need to be. It was totally irrelevant because the Commerce Clause hadn't yet been stretched beyond all recognition, and the 14th Amendment hadn't yet been invented. Those two things made the question eventually matter, but for early-American-history purposes, the point was that the federal government didn't have the power to limit gun-ownership.
Now things are much more complicated, constitutionally, than they were in the 18th century, for all kinds of reasons, which is why people disagree so strongly about how the Second Amendment should be interpreted today. The answer is not crystal clear, and cannot be (barring further amendment).
bueno
In a class by himself
A pretty good analysis Maurile. However, I think there is a point to be made that in many state constitutions, every able-bodied male comprised the militia. Not the National Guard - every able-bodied male.
Article XIV Section 1 of the Idaho State Constitution: SECTION 1. PERSONS SUBJECT TO MILITARY DUTY. All able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years, shall be enrolled in the militia, and perform such military duty as may be required by law; but no person having conscientious scruples against bearing arms, shall be compelled to perform such duty in time of peace. Every person claiming such exemption from service, shall, in lieu thereof, pay into the school fund of the county of which he may be a resident, an equivalent in money, the amount and manner of payment to be fixed by law.
Article XIV Section 1 of the Idaho State Constitution: SECTION 1. PERSONS SUBJECT TO MILITARY DUTY. All able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years, shall be enrolled in the militia, and perform such military duty as may be required by law; but no person having conscientious scruples against bearing arms, shall be compelled to perform such duty in time of peace. Every person claiming such exemption from service, shall, in lieu thereof, pay into the school fund of the county of which he may be a resident, an equivalent in money, the amount and manner of payment to be fixed by law.
Henry Ford
Footballguy
Sure. A lot of states put what they wanted into the State Constitution when the same language couldn't be brought into the US Constitution. One of 'em gives the right to an education of all things.
Henry Ford
Footballguy
bueno
In a class by himself
No #### Sherlock, but you miss the point. The regulation of a militia and the regulation of gun ownership is delegated to the states and states have incorporated that into their Constitutions. It is not a federal issue at all.
Henry Ford
Footballguy
Thought we were still talking about the interpretation of well regulated and militia. Based on your statement that you were about to expound on how militia should be considered.
By the time Idaho was a State, the 14th already applied to actions by the states, bringing in the discussion Maurile brought up in the post you quoted. And I think he dealt with the "every able bodied male" bit earlier in discussing Heller.
So, sorry Watson. "Back to the start" as Coldplay says.
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bueno
In a class by himself
MaxThreshold
Footballguy
Maybe I missed it, but did you ever get specific about this "200 years of precedent" you keep talking about? I'm having a hard time believing your claim that individuals don't have the right to own guns beyond a militia based on this.
Henry Ford
Footballguy
I don't think there's any question that Connecticut was anti-federalist. I'd imagine Sherman and Ellsworth would have gotten that language into the US Constitution if they could have. They couldn't.
Henry Ford
Footballguy
MaxThreshold
Footballguy
I'm having a hard time with what NCCommish posted and this: "...the right of the people to keep and bear Arms, shall not be infringed".
Even taken as a whole - ""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."" - to me it pretty clear they mean individuals. I mean, the militia is comprised of individuals from the State who already have their own guns. They weren't supplied by the state.
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Henry Ford
Footballguy
It kind of fits with what bueno and Maurile were talking about and hits on that CT Constitution. Basically, the interpretation was this:
Militias are integral to the free states. The Feds can't interfere with the States' ability to regulate (prepare, arm, whatever) their militias. But that's it - the Bill of Rights didn't apply to what the States decided to do for their militias. If Maryland decided that militias were only going to be made up of males aged 18-21, then the only violation of the 2nd Amendment would be if the Feds made males aged 18-21 ineligible to bear arms, and only Maryland could challenge the law, not individual citizens. Oversimplification, of course.
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MaxThreshold
Footballguy
Henry Ford
Footballguy
bueno
In a class by himself
I'm still not entirely certain why the 14th Amendment makes a difference in Idaho. Could you enlighten?
Henry Ford
Footballguy
I think it created an inevitable revolution in our thinking about the 2nd, pushing to an individual right.
The Feds have to let the States exercise gun ownership rights under the 2nd... but now the 2nd restricts State ability to make these decisions, too. So... who actually has the right?
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Ditkaless Wonders
Footballguy
Well I hope they had the good sense to restrict that to propertied free white men, otherwise Lord knows what might happen.
Ditkaless Wonders
Footballguy
Sounds like some sort of made up place. Has anybody checked snopes to make sure its a real state?
Ditkaless Wonders
Footballguy
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Henry Ford
Footballguy
I feel like you've mistaken me for someone who doesn't look like a cross between a sneetch and Dobby the house elf.
Henry Ford
Footballguy
bueno
In a class by himself
bueno
In a class by himself
bueno
In a class by himself
FishTacoTuesday
Footballguy
No, it really isn't when the language of the amendment is tied to a very different time in American history. Should we stop using the Polio vaccine to return to those times also? Never know when Polio might take out the militia though, so maybe not.
MaxThreshold
Footballguy
A good portion of the constitution is littered with language tied to a different time. Maybe we should just scrap it because it's too old for you and rewrite it to something YOU think it should be. Write it down on a napkin and we'll get it ratified.FishTacoTuesday said:
However, at this point though, it doesn't matter what "time" it came from - I think it's pretty clear people (individuals) have the right to bear arms. "...the right of the people to keep and bear Arms, shall not be infringed" seems pretty time agnostic to me.
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Insoxicated
@FishTacoTuesday Do you think the first amendment should protect online speech? What about over the telephone?FishTacoTuesday said:
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MaxThreshold
Footballguy
Henry Ford
Footballguy
It wasn't for about 200 years of different Supreme Court justices. But I'll take your word for it.bueno said:
MaxThreshold
Footballguy
Well, using some recently posted logic, that was back in a different time so it doesn't really apply anymore.
Henry Ford
Footballguy
The Commish
Footballguy
Anyone have the cost of the lunch and dinner buffets they partook in between temper tantrums?
MaxThreshold
Footballguy
Didn't they have lunch and dinner buffets back in the 60's when the protests actually meant something?
We should all get together and sing "We shall overcome", like they did. Except, of course, they actually didn't. All they did was get a littler fatter at the taxpayer's expense.
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FishTacoTuesday
Footballguy
FishTacoTuesday
Footballguy
FishTacoTuesday
Footballguy
I guess based on your 1850 mindset we should have never added any amendments either right? Maybe we should dump the 13th amendment so your people can get their mule back.
bueno
In a class by himself
FishTacoTuesday
Footballguy
bueno
In a class by himself
bueno
In a class by himself
They only drink that swill in New Mexico
You and Max Threshold should by a double wide and a bottle of Thunderbird.
Doctor Detroit
Please remove your headgear
Was anything accomplished except a few of them probably #### their pants?
Henry Ford
Footballguy
They intend to resume July 5. Which means the news cycle in the lead up to the RNC will ve focused on it. That's likely to big secondary goal.
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