Second Amendment Questioned 1471
dheera writes "Attorneys in Washington, DC question the scope of the Second Amendment in the first case in nearly 70 years, citing that the right to bear arms only applies to 'a well regulated militia.' 'We interpret the Second Amendment in military terms,' said Todd Kim, the District's solicitor general."
I've allways wondered about this ... (Score:5, Interesting)
Re:From my cold dead hands (Score:0, Interesting)
well regulated (Score:5, Interesting)
In the phrase "A well regulated militia" regulated = equipped.
The idea was that in the event of tyranny or invasion the people could form up and defend themselves. We are guaranteed the right to pursue life, liberty, and happiness. To pursue life one must be able to defend it. That is why we are guaranteed the right to keep and bear arms.
By now I would have expected the noise about gun control to die down. It's a losing issue for democrats, and gun ownership may well be the only thing that recently stopped the USA from falling into fascist totalitarianism.
Comment removed (Score:5, Interesting)
More Importantly.. (Score:0, Interesting)
It's funny how the same people who hate the second amendment right to bear arms have no problem with the Supreme Court magically finding a constitutional right to an abortion.
My proposal (Score:4, Interesting)
I think solves the underlying problem nicely. Firearms are a problem in major urban centers but not a big problem in rural states. Each state crafts its own rules. There will be states with tight rules and loose ones.
Re:I've allways wondered about this ... (Score:1, Interesting)
That said, not second hand:
I remember seeing someone walking through *campus* with a rifle on their shoulder, coming back from the target range (and it was a she, actually).
I've also seen guys with guns in their back pocket, visibly displayed, in the grocery store. Once again, they weren't concealed.
Re:Now is the time to define. . . (Score:3, Interesting)
Re:From my cold dead hands (Score:3, Interesting)
Retards on the Hill (Score:4, Interesting)
But lets pretend, just for a second.
If what they claim is true, then by definition:
See the problem? Every male above the age of 18 is registered with Selective Service and is therefore a member of the militia of the U.S., by whichever definition you wish to use for the word.
So in effect, even if what they were claiming were true, which it's clearly not, then they are simply arguing that women cannot own guns! That's the only people who their claim would effect.
Actually, that's not true. If their claim were true, then it would be unconstitutional to prohibit convicts from owning a firearm, because they are still part of the Selective Service regardless of their legal status, and "the right...shall not be infringed." Honestly, that means it's unconstitutional for the courts to restrict their right to bear arms, even with the correct interpretation of the amendment. Strictly reading the letter of the Constitution, you can take away their right to breathe, before you can forbid them from carrying a firearm, even while they are encarcerated. But even bending it a little, as soon as they are released, they, by Constitutional right, should be permitted^H^H^Hhave the unrevokable right to purchase a gun from the closest pawnshop, should they wish. And, in fact, for just that reason, they are able to "restore" their right after any parole time they might still be serving.
Re:Now is the time to define. . . (Score:3, Interesting)
Depends on who wins. If it happened today, would the British call the people who carried out the Boston Tea Party "terrorists?"
Re:From my cold dead hands (Score:2, Interesting)
While correct, please realize that when military force is authorized against "Americans"; those that are the target will no longer be considered Americans -- they're now Terrorists/Enemy Combantants/Traitors/etc.
Yea, good luck with that.
See, the military is already prepared for that answer. If you refuse a direct order in the field -- and make no mistake, when they come for you, it won't be in an office meeting -- you get shot on the spot. What is the likelihood of a significant portion of the military defecting after watching their friend get his head blown off by their commander, with the gun is now pointed directly at them?
Let's say a particular group points their guns at the commander instead. What next? They sure aren't going back to the base to "get more supplies" -- they'll end up in a brig waiting for court martial while the action moves on. Best case, they defect with what they happen to have on them now, and become "enemy combatants". Great! We got a dozen guys and a handful of pea shooters and grenades. Too bad there's a "daisy cutter" on its way to whatever building you rebels are holed up in.
It'd be fair to respond to my example by pointing out that civilians aren't equipped to deal with Howitzers and Bunker Busters as it is, so what difference does it make? You'd be right -- we've already let ourselves get in pretty deep. The answer however isn't to make the hole any deeper!
The local police had no standing to make ANY order to the National Guard; especially not one of that magnitude. They won't refuse that order when it comes from the President, who actually has that authority. I remember something about a school and fire hoses the last time the armed forces were used against US Citizens.
~Rebecca
Re:Now is the time to define. . . (Score:4, Interesting)
I find most vocal gun rights advocates leave out the "well regulated militia" clause if the second amendment. I've always been amazed at how poorly that amendment parses. My reading is the same as yours - citizens may have firearms so that they mey function as part of an organized "militia," or protective group. All of the functions which militias performed two hundred years ago have been taken over by standing govenrmental bodies. In fact, the writing most likely applies to the state national guards - you don't get much more of a well-regulated militia than that.
I still believe in the right to own firearms, and have owned several in my lifetime, though none in operational condition at the moment, but I don't agree that the constitution gives the sweeping endorsement it once did.
I'm sure there will be those who ignore reality and say that without personal firearms we are at the mercy of the federal government. I've got bad news for them - there isn't a consumer-led army in the world that could take over the US govenrment, on US soil, defended by the US military. (That is, of course, ignoring the possibility that most/all of the military turns against the CIC and standing legislatures - but then we woouldbe fighting with the military, not against it.)
RPGs account for more causalties than AKs (Score:2, Interesting)
I think that if intelligent unmanned drones become prevalent (currently drones require a large operations staff), we will finally run in to the issue of reducing the number of autonomous moral agents. If the second amendment is no longer effective due to the asymmetry of modern military versus individuals, then the remaining key is autonomous morality.
Re:BS (Score:3, Interesting)
How specifically do you feel that the 2nd is talking about the National Guard, when that organization didn't even exist until 140 years _after_ the constitution was written? Show your work...
The word militia was defined at the time as any able bodied man not in the military, more or less. The word "unorganized" has a specific meaning as well, by the way. I suggest googling the term "Federalist papers", which will give you the contemporary background that you're lacking. Think of it as release notes for the Constitution (sorry, trying to bring this vaguely into slashdot territory with that one).
Re:Now is the time to define. . . (Score:2, Interesting)
This left the states in the position of being able to assemble a force to protect civil order (a police force), but no right to arm it. The second amendment was written to address this problem by ensuring that, since the people have the right to be armed, the states could assemble an armed militia from the general population.
Its not certain exactly what rights this converys to the general population. It has never been tested by the Supreme Court. But it may be that if a state or locality decides to ban firearms, they cannot then create an armed police force. Their right (state or local law enforcement) to bear arms is derived from their right as a member of the general population to do so.
Re:Now is the time to define. . . (Score:1, Interesting)
If criminals know that the average person is armed it is not going to stop them. They will make sure that they are armed too with a resulting increase in injury and death. And both countries have their fair share of nutters; in the US they have guns and can kill many more people. And American kids die when they find a gun and play with it - dreadful.
Re:NAACP and guns (Score:2, Interesting)
(stupid criminal: "Dang, I was gonna go kill a couple people today, but now my Glock-17 is illegal. I better go hand it in to the proper authorities.")
The only people who would turn in their guns are the law-abiding citizens, who then become perfect (read: "unarmed") targets for criminals.
And all the murder-rate talk is a smokescreen anyways. The second amendment is in place to protect CITIZENS from a tyrannical GOVERNMENT. It's no coincidence that as the US Government becomes incrementally more tyrannical more efforts are being made by it to disarm its citizens.
And today, finally, I think someone is going to understand my sig (below).
Jail Time. (Score:2, Interesting)
Why are all these people trying to shred the constitution of it's power NOT BEHIND BARS?!
Why are they not at least ON TRIAL?
What the hell is the matter with this country anymore?
rhY
Re:Your Rights ONLINE? (Score:4, Interesting)
The meaning of "bear arms" (Score:3, Interesting)
In... the conscientious objector provision, Madison clearly used the phrase "bearing arms" to refer solely to the possession of weapons for military use...
Madison's use of the phrase "bear arms" to refer to military activities is echoed in other contemporary usages... Records of debates in the Continental and U.S. Congresses between 1774 and 1821 [include] 30 uses of the phrase "bear arms" or "bearing arms" (other than in discussing the proposed Second Amendment); in every single one of these uses, the phrase has an unambiguously military meaning...
Source: The Second Amendment Foundation
The phrase "the people" is unambiguously defined as individual citizens of the States in the Constitution by virtue of the fact that when the States are being designated, the phrase "the States" or "the several States" is used consistently.
All gun control legislation is geared toward either prohibiting or licensing your right to bear arms.
The government cannot license rights already admitted to be yours by the Constitution and retain legitimacy.
A further point of clarification may be necessary for some:
The Bill of Rights grants no rights to the people nor to the States. The Bill of Rights is a confession and warning on the part of the United States Constitution that central governments such as those it constitutes, have a tendency to take more rights than they have been granted, and enumerates the rights most likely to be stolen by the central government.
There's no real need to reconsider... (Score:2, Interesting)
Of course, with such heros as Castro, Stalin, and well, every enemy America has ever had (especially if he kills his own) the Liberals LOVE the idea of doing the same, to us.
This isn't rhetoric; this is proven fact- Jane Fonda on the AA guns of the North Vietnamese, Ed Asner's idolitry of Stalin in a recent quote "He kept such good order!" and every cocktail party where Castro is missed. The party which they now occupy has a former KKK member....but no one ever seems to think about these things.
Only Homer Simpson votes Democratic these days...and take a guess which party will push the remove-all-guns idea? It ain't the Republicans.
Think people, THINK. Don't let the TV do it. Politics is more than headlines.
Re:Thank God for that (Score:1, Interesting)
"And they were much lower a few decades ago when anyone could buy a gun over the counter, no questions asked, and anyone with $2.50 to spare could buy a license to carry it in public."
Correlation and causation are not your strong points are they. The fact that even when it was easier to own firearms in the UK hardly anyone did makes your argument utterly ridiculous. The recent rapid increase in gun crime has gone hand in hand with the increase in popularity of US 'culture' (I use that term in the loosest possible sense obviously). I think that is more likely to have something to do with our increase in gun crime than these phantom guns people had all those decades ago.
We are so not turning into a police state. Stop getting your UK news from our gutter tabloids or your own piss poor popular media. Our police are much better regulated and trained than your own and they get away with far less crap. Licence to exist cards? Jesus Christ! As much as I am against ID cards your reaction to them just shows just how paranoid you are. And the CCTV camera big brother thing is just getting old. If you think the shitty black and white or grainy colour cameras the police use to watch for crowd trouble or identify criminals already caught as being at the scene of the crime can be used to track every one in the UK you are deluded. Not only that the local and central government divide is completely forgotten by Americans.
The poster you were replying to was spot on. If the UK has 1 gun murder in 2005 and 2 in 2006 that is a 100% increase. If the US has 100 gun crimes a year in 2005 and 101 in 2006 that is a 1% increase. Saying that gun crime is out of control in the UK because it has had a greater increase over the year in the example is idiotic.
Personally I think gun ownership in the USA should be completely freed up from all regulation. That way you can get back to shooting each other (your national pass time I believe) and leave the rest of the world alone.
Re:US DOJ is the EXECUTIVE, not JUDICIAL, branch (Score:5, Interesting)
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Cheers, Gene
Re:US DOJ says (Score:4, Interesting)
4 Washington, DC
5 Philadelphia, PA 6 Dallas, TX 7 Nashville, TN 8 Charlotte, NC 9 Columbus, OH 10 Houston, TXGreat idea! Except that it's unconstitutional. (Score:1, Interesting)
The Congress shall have power . . .
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. . . .
Amendment XIV (in part):
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Congress has the exclusive power to organize the militias, NOT the states. Additionally, states cannot abridge Constitutional rights or powers. Aw, shucks!
Re:US DOJ says (Score:3, Interesting)
I am not an America, and I have never owned a gun, so perhaps I don't have the correct perspective on me. I used to shoot, and did quite well in competitions, but I don't believe competition or sport related shooting is the issue being discussed here. Surely the only justifiable reason for allowing people to own and carry guns is that it makes them more safe. In my mind, this safety means:
- Safety from fellow citizens, and
- Safety from the government.
When it comes to the first one, I have yet to see any good evidence either way; I've seen anecdotal evidence that guns make people more and less safe, but nothing conclusive in either direction, and this seems to be a big part of the argument. When I attended a talk by the NRA, they pointed out that Switzerland had higher gun ownership than America but much lower violent crime rates (which, to my mind, seemed like a good argument for not letting Americans have guns, but I digress) so there doesn't seem to be a strong correlation between gun ownership and violent crime.The second one is much harder. Overthrowing oppressive governments is a duty of free citizens, but fortunately most of us who post on Slashdot have a non-violent means of doing this every few years by voting. Often we don't get the choices we want, but nothing is stopping us from putting up our own candidates. Near the start of the last century, we were given a good demonstration in Germany of how easy it is to corrupt a democratic system, so perhaps some additional safeguards are required. Does a gun do this? Well, maybe shooting the odd politician might be beneficial, but I doubt it. In the end, it comes down to effective weapons, and the most effective weapons is information. A civil war in any technological society is likely to be decided by which side the majority of the military takes, and so the means to persuade the military to side with the people against the government is far more valuable than a gun.
Re:BS (Score:3, Interesting)
I thought "well regulated" at the time basically meant "operating properly". Like the well regulated operation of machinery.
Re:US DOJ says (Score:4, Interesting)
For example, Long Island, NY is a very anti-gun place. Very few Long Islanders hunt, and gun enthusiasts are few and far between. The typical Long Islander will only encounter a gun during a crime, and so, guns carry a very negative opinion. The prevailing view on LI is, if it makes us safer, we don't need guns.
On the other hand, Denver, CO is a very pro-gun place. Hunting is popular, and many gun enthusiasts live there. The typical Coloradian has been exposed to guns in friendly social settings, and so, they do not carry as negative a stigma. The prevailing view in CO is, the 2nd Amendment is an innate right, granted to man by the Creator directly.
I think the best one-liner on gun laws is as follows: if guns are outlawed, only outlaws will have guns. However, I know from experience that anti-gun voters will roll their eyes at that little gem.
To them I say: consider marijuanna. Marijuanna has been illegal throughout my entire lifetime (born 1980) and yet, I have known casual marijuanna smokers in Colorado and in Long Island. They are criminals, each and every one of them, but they are not persuaded by the law. Some cite cultural or spiritual reasons, others simply like it, but they all agree: bugger off with your rules, this is what FREEDOM is all about.
As my grandpappy used to say: true freedom is the freedom to make mistakes.
- Zaphod (100% pro-2nd Amendment, despite the fact I've never used a firearm)
Re:This comes about two centuries too late, no ? (Score:3, Interesting)
Um that's why we have the House.
Sure the system isn't perfect, but it is a good compromise.
If we get rid of the Senate (basically what you are proposing, lets just add 100 seats to the house, and do it all based on population) we'd quickly see huge problems. First of all, companies looking to lobby would only have to concentrate on like 3 states... California, New York, and Florida could probably pass just about any legislation they wanted, so if you're a company, move your operations to those states in exchange for a law guaranteeing your profits forever... done, US over.
Analogy (Score:3, Interesting)
"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."
This simple sentence, framed very specifically by the framers of the Constitution, has caused much debate. The first half of the sentence gives the reason for their belief in this right. However, the second half of the sentence is not dependent on the first half. Take the following sentence as an example.
A well educated populace, being necessary to the well being of a free state, the right of the people to keep and bear books, shall not be infringed.
People have the right to keep and bear books but is is the reason they have the right because a well educated populace is necessary to the well being of a free state or should only well educated people have the right?
The framers were not stupid people. They knew exactly what they were writing. It is only over time that we have changed the meaning of what they wrote. The vernacular of our language has changed. The Federalist Papers were quite clear that this was the right of each individual Citizen of the United States.
This really is a moot point, because a militia is defined in United States Code TITLE 10 > Subtitle A > PART I > CHAPTER 13 > 311 [cornell.edu]. It has two components. The first is the "organized militia, which consists of the National Guard and the Naval Militia." The second class of militia is "the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." Just because a militia is unorganized does not mean that it is not well regulated. The fact that United States law codifies an unorganized militia makes it well regulated. I, and most slashdot readers in the United States are members of the unorganized militia by default.
Also, no court that I am aware of, has ever ruled that the term "the people", in the United States Constitution, means anything other than an individual right. Look at everywhere in the Constitution where the term is used. It is very clear that each single instance reflects an individual right. Would the framers use the same term in the Second Amendment if they did not mean to recognize an individual right?
Also, the rights in the Constitution were so clear to them and they believed that they were bestowed by their Creator that they did not even put them in the original Constitution; however, many believed that they needed to be recognized formally and the Constitution was passed with the understanding that the Bill of Rights would soon follow to acknowledge those rights, not bestow them. The Constitution does not bestow rights to the people, it acknowledges that they exist and prohibits the United States Government from infringing upon them. The United States Constitution grants power to the United States Government and specifically limits that power. It does no more than that. Any law that runs contrary to that ideal is unconstitutional. But, courts sometimes forget that. As do many of the Citizens of the United States.
I don't care if I win. (Score:1, Interesting)
The question is, why do I can't I choose to protect myself? Isn't is reasonable? After all, whether or not I shoot myself accidentally or let my gun fall into the wrong hands is something I have complete control over, whereas whether or not someone decides to go after me is something I have almost no control over.
Personally, I don't care if I win or not. If he kills me, fine. But I will never just stand there while someone makes a victim out of me. It happened to me once and it won't happen again. I don't like hunting, hell, I feel bad killing an insect, but next time one of us is probably going to die.
I am not afraid of dying. Heck, dying from a bullet wound isn't a bad way to go. Even when it's not quick, it's still pretty quick. Dying of cancer... that's scary. Do you know why? The fear and the feeling of powerlessness. That is how I felt after I had someone really threatened to kill me. That is no way to live, so I will accept the risk of self defense, whatever it may be.
If my hand is on my gun when I die, that is enough. I don't want anything from anyone except to live in peace, but I shall tolerate nothing less.
Geeks in politics (Score:3, Interesting)
Geeks had quite a bit of influence [amazon.com] when it came to writing the US constitution.
Summarising the dust jacket of the linked book:
Thomas Jefferson, able to read and understand Newton's principa. He gave scientific lectures on fossils while he was VP and had many inventions to his name.
Ben Franklin, internationally renowned geek in his own lifetime.
John Adams had an impecable geek education, including areas such as "Pnewmaticks, Hydrostaticks, Mechanicks and Opticks".
James Madison was that most uncommon of beasts, a geek with lucid communication skills, he "peppered his Federalist Papers with references to physics, chemistry and the life sciences".
I have never been to the US, I picked up the book a few years ago because of my casual interest in the history of science. Regardless of where you live, geeks have influenced politics since the days of stonehenge style calendars. I don't see any reason to deliberately exlude ourselves now.
As for gun control, here in Australia anyone who keeps a gun in their bedside drawer for "self defense" is considered a dangerous gun nut. I grew up in the 60's and 70's and from experience can tell you it has not always been like that. These days the cultural objection towards people owning guns for "self-defense" is firmly set in legislation and the general population. It is so strong that the overwhelming majority (including myself) would kick anyone out of office who even suggested we go back to selling guns and ammo in supermarkets.
There are no absolutes in life, and that includes the US constitution and freedom. Geeks with graphs have shown gun cultures pay a price for their "freedom" (OTOH: Iraq demonstrates the principle of a well armed malitia rejecting the US government). Science, politics and lawyers can only go so far towards changing a culture, the "big picture" was best expressed by a US president: "We have nothing to fear except fear itself".
Re:Now is the time to define "the left" (Score:3, Interesting)
His ideal world [wikipedia.org] was a communist anarchy, for crying out loud."
And the Left favors a large government that regulates every aspect of your life. I don't think Jefferson was a Communist, but he definitely was a libertarian-anarchist.
And, no, I don't have the brain worms.
Federalists (Score:3, Interesting)
There are so many ways to refute this libel I hardly know where to begin.
A class of overlords must be a small minority, or there isn't any significant population to lord over. Despite this, the Federalists won the first three presidential elections.
You should read more of what the founders actually wrote. Even Alexander Hamilton, considered by many to be the major big government advocate among the Federalists, was greatly in favor of maintaining freedom.
The sort of totalitarianism represented by fascism was abhorrent to all the founders.
Re:Oh, this should be cute. (Score:3, Interesting)