Join Date: Aug 2009
Re: The Second Amendment---Broken down
Our founders were not comfortable with standing armies. The 2nd Amen. was to insure the states had a means of defense against any enemies or tryants. This, implicitly included the newly formed federal gov. The 2nd Amen. was not about hunting or "putting food on the table." Those who depended on the land for their sustenance primarily relied upon trapping for their meat. It was a more productive use of their time
The militia system was the prefered means of defense back then, although the revolutionary war highlighted the problems with such a system. Militias tended to go home if the conditions were harsh, and they didn't seem to take much interest in fighting in areas far from home. Don't get me wrong, militias greatly helped our fight for independence, but the continental army won the war for us.
Militias had the advantage of not being susceptible to the whim of a dictator, standing armies were. Militias were to be a check/balance on/to our federal army.
No record exists of the congressional debates surrounding the 2nd Amen. Can anyone truly divine the Founders intent on this amendment? No, but we can get reasonably close.
Did the Founders intend to gaurantee each individual the right to own a gun free of gov. regulation? Most certainly not, and nobody with even a modicum of knowledge about our constitution could make the argument they did.
The Bill of Rights did not originaly grant everyone the freedom of speech, the right to a trial by jury, the right to be free of unreasonable searches & siezures, etc. The Bill of Rights only gauranteed that the federal gov. could not do these things. State governments were not bound by these restrictions, although most of them granted their citizens these rights, or at least white males. The Bill of Rights did not become applicable to the states until the passage of the 14th Amen. And then, not every right in the Bill of Rights applies to the states, even now. This is what is refered to as the "incorporation controversy." (The 3rd Amen. has not been incorporated, primarily because no case has come up under it. The 9th & 10th Amens. aren't applicable to individuals, and the 2nd Amen. is being hashed out right now.)
Now, if the 2nd Amen. becomes incorporated (and its a coin toss right now), I will have to agree, mostly, with GMFWoodchuck on our gun laws being invalid. They would be uncustitutional, not illegal. They certainly are legal as they were enacted in accordance with the law. Many laws have been found to be lawful, although they are unconstituional. Unconstitutional laws are invalid and cannot be enforced. The Constitution trumps law, the Const. is the supreme law and no law or treaty can superceed it. I would not recommend shooting at the ATF&E as you will certainly lose, even if they are acting uncostitutionaly. You might be right, but you'd be dead-right, and I don't know about ya'll, but I got things to do tommorrow.
The reason the Supreme Court has not given the right to own guns to the people is that, to date, the 2nd Amen. has always been held by the court to be a collective right of the people, a right given to each state. Like the 3rd Amen. Admittedly, the wording of the 2nd. Amen. could be clearer. If it were this would have been hashed out a long time ago. It seems the trouble with interpreting the 2nd Amen. as an individual right has to do with its preamble "A well regulated Militia, being necessary to the security of a free state.." Militias are not the same as me or you owning guns. Militias back then required certain responsibilities of their members, such as attendance at "musters." We have nothing like this in America today, but the Swiss model of militias are close to what our founders understanding of "militia" meant. The "security of a free state" part gives problems because it implies the right to own guns is granted for the benefit of the state, not individuals. The argument goes that if the Founding Fathers intended for individuals to own guns, they would have said so, but they didn't. They knew how to use words, they were the best, brightest and most edcuated people in America at that time.
"Bearing" arms meant, in 1789, carrying arms, as one would do at a militia muster. "Keeping" arms meant just that, keeping or owning them. The 2 words are not synonomous. The Founders (or so the prevailing wisdom of constituional scholars holds) did not put extraneous verbiage in the Constitution, every word has a meaning and no word is unneeded.
The case before the Court right now, McDonald v. Chicago (or something similar, I'm going by memory) will determine if the 2nd Amen. gets incorporated to apply to the states. As I said before, its a coin-toss. The Heller decision was very narrowly drawn. S.C. justices are hesitant to overturn precedent (stare-decisis, it is called, and the doctrine is there to give continuity to the law.) and all previous S.C. cases have said the 2nd Amen. was a right granted to the states, not indiviuals. The reason the court has taken the case (and the S.C. doesn't have to take very many cases, they do so to clarify the law when they grant cert.) is because there is a split among jurisdictions. This means, in this instance, that two Circuits (appellate court division, right above the federal district courts) have conflicting opinions as to the 2nd Amen. One circuit (again, I'm going from memory so I'm not sure which but I believe it is the one covering D.C.) holds that the 2nd Amen. applies to individuals, whereas another holds that it does not. In order to have a continuity of law the S.C. will make the final ruling on the subject. We can't very well have the Const. mean one thing here and something else in a different part of the country. Lower (District) courts are bound by the precedent established by their appellate (Circuit) court, so in order to get every court on the same page, the S.C. will rule on the case.
Again, keep your fingers crossed and pray for an "activist" court. This is something that conservatives dearly hate, but it is our only chance at getting the 2nd Amen. incorporated. Thomas and Scalia have no problem throwing out precedent, they'll be with us. As much as Scalia propounds to hate judicail activism, he has no problem engaging in it himself, and this won't be te first time for him. Ditto for Thomas. Roberts and Alito are likely votes for us too, Alito moreso than Roberts, but I think (hope) both will be with us. The vote to go after is Kennedey's, he's the swing vote on the Court now.
O.k., I've prattled on for too long once again. I really need to work on brevity.