2nd Amendment; is it clear?

[patches70]

There is also the little problem of the phrase "of the people". Does this refer to individuals or to collectives?

Take the second amendment-

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.

Is the bold referring to individuals or to collectives?

Now look at the 1st amendment-

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.


Why is that we interpret the 1st amendment to mean that each individual has the right to free speech, religion and assembly, but not the 2nd amendment which uses the exact same wording?

To those who think the amendment pertains only to those who belong to militias, the amendment never makes that requirement. There is no "only when" clause. The central government is even free to undermine the militia if they wish, so long as they don't violate the amendment. Such as making militias not need by creating a standing army. The government is free to do this but it doesn't negate the amendment.

Nor can one go to the overinclusiveness of the amendment either. The right belongs "to the people", it says nothing about only for citizens aged 17-45, or only men, or only land owners or any of those other things. You have the right to bear arms throughout your whole life, so long as you are in good standing. Which means fulfilling you duties as a citizen (i.e. not being a felon among other things).

No, the right belongs "to the people" and throughout many of the amendments of the constitution "the people" is every American citizen, regards of group (as per the 14th amendment).

For the poster who pointed out that the right to bear arms didn't apply to women, which was a good point BTW, the 14th amendment applies yet again. Just because one is a woman doesn't give the governments the ability to deny rights reserved to "the people". Each American citizen is protected under the equal protection clause.

That's the beauty of the Constitution. It's not a perfect document, it wasn't when it was written, it isn't today. But we have the ability to add to it, to address those imperfections, like the 14th amendment does. And the 19th amendment, and the 13th amendment, and so on. It (the Constitution) will continue to change as it always has and there is a process to that change which is simple and laid out clearly. Past wrongs have been corrected. Future wrongs will also be corrected eventually.

If you want to get rid of guns then the gun grabbers simply have to put forth an amendment to repeal the 2nd amendment. Seems pretty clear. Doesn't it? (And there is a case of just such a thing, isn't there?) Where one amendment was used to repeal a previous amendment.)

Getting that done, we, there is the problem for the gun grabbers, isn't it?

[Nobunaga]

(And there is a case of just such a thing, isn't there?) Where one amendment was used to repeal a previous amendment.)

Getting that done, we, there is the problem for the gun grabbers, isn't it?

But the amendment repealed was an amendment removing rights from individuals.

18th Amendment: You cannot make, purchase, possess or drink alcohol.

21st Amendment: Sorry, yes you can.

And please consider, the right to drink has never been a specifically protected right as is the right to bear arms. Nowhere in the Constitution does it say: "..the right of the people to keep and drink alcohol, shall not be infringed".

...

[jimboston]

The PEOPLE are the militia.

[jimboston]

The PEOPLE are the militia.

Now... whether or not an armed citizenry is still necessary to maintain a free state is debatable.

This was true in the 18th Century.

Is it true now?

[thegreekdog]

From 1789 to 2008, the US Supreme Court never held that the Second Amendment was an individual right. Furthermore, none of the quotes above (except for the more stylized versions, like water the tree of liberty) indicate that this is an individual right. The Madison and Mason quotes are directly on point in this regard, referring not to an indiidual's right to have a gun to go hunt, but intsead refer to the right of people to organize as a militia. I agree that the Second Amendment is very clear as to what right the citizens of the United States have with respect to being permitted to form an armed and organized militia. I do not agree that the Second Amendment states that Ice T is allowed to carry a MAC-10 so that he can protect himself from burglers.

There is no such thing as collective rights. It is a contradiction and is the point Thomas was making in McDonald vs Chicago.

Rights belong to individuals, not groups. An individual cannot lose, or gain, a right by leaving one group and joining another. The concept of collective rights means that rights belong to some but not to others. The 14th amendment goes directly to that matter, that there is no such thing as collective rights. That a state cannot take away the rights of individuals just for the residents of that state.

A group, a collective, can only have the rights that individual members already have.

If militias can legally bear arms then it stands that the individuals can bear arms. The militia cannot have rights that the individuals do not, rather the group has the same rights as each individual. No more, no less.

The simple fact that if you are an American citizen in good standing then you have a right to bear arms. There is no further requirement. You don't need to provide a reason, you don't need to exercise that right but you still have it.

The states thought they could get away with gun bans because the argument goes that the Bill of Rights pertains only to the Federal government. Which is true, the central government is not allowed to make laws that violate the Bill of Rights. But that doesn't give the States the power to negate those rights either, as is written in the 14th amendment, which is what Thomas was talking about.

You can see it far more clearly if you apply that thinking to other amendments. Such as no official religion will be established by the Central government. But this applies to the states equally. Imagine if Texas made a law one day that said the official religion of Texas is Christianity and said that everyone must join a church and everyone non Christian had to pay a tax and that everyone must submit to the State to which church they belong. There would be no question at all that this is clearly a violation of the First amendment, never mind that it wasn't the Central Government making the law.

The right to assemble is a collective right. Up until 2008, the right to bear arms as part of a militia was a collective right. There are two.

Strict constructionists tend to be Second Amendment supporters, but ignorant strict constructionists tend to not understand that the entirety of history made the right to bear arms a collective right and not an individual one. As I indicated before, the Second Amendment was not enacted so that Thomas Jefferson could own a musket to shoot robbers or a bear. The Second Amendment was ratified so that Thomas Jefferson could organize and form a militia to fight against tyrannical governments. Since 2008, the Second Amendment is no longer just a collective right. It bears mentioning that without the individual right to bear arms, the collective right to form an armed militia is virtually worthless.

We tend to ignore caselaw that has been overturned in subsequent caselaw. When we do that we no longer are strict constructionists (if that is what we wish to be). I named a number of cases dealing with the Second Amendment and, again, up until 2008 all of them dealt with a collective right, not an individual one. You can ignore those cases and rely upon D.C. v. Heller, but you cannot ignore those cases in favor of D.C. v. Heller and then pretend that you are a strict constructionist and that the Second Amendment has always granted an individual right to bear arms.

[chang50]

The PEOPLE are the militia.

Now... whether or not an armed citizenry is still necessary to maintain a free state is debatable.

This was true in the 18th Century.

Is it true now?

As a poor ignorant foreigner,not steeped in American tradition,can someone explain what an armed citizenry can do practically in 2013 in oppsition to a tyrannical government with all the military hardware and personnel at it's disposal.I must be missing something because it seems to me to be a silly,irresponsible and dangerous fantasy that could get many people killed.

[saxitoxin]

can someone explain what an armed citizenry can do practically in 2013

[patches70]

We tend to ignore caselaw that has been overturned in subsequent caselaw. When we do that we no longer are strict constructionists (if that is what we wish to be). I named a number of cases dealing with the Second Amendment and, again, up until 2008 all of them dealt with a collective right, not an individual one. You can ignore those cases and rely upon D.C. v. Heller, but you cannot ignore those cases in favor of D.C. v. Heller and then pretend that you are a strict constructionist and that the Second Amendment has always granted an individual right to bear arms.

But you are ignoring all the case law that steadily incorporated the Bill of Rights beginning in 1897. Virtually the entire Bill of Rights has finally been incorporated in the year 2010 with McDonald vs Chicago.
It was only a matter of time, and looking at how the rest of the Bill of Rights was slowly incorporated, you should not be surprised.

Imagine moving to a state where you did not have the right to free religion. Or freedom of press, or freedom from unreasonable search and seizure. Today any one of us would pitch a fit if the cops just strolled up to your house one day and just walked in and started ripping the place apart without a warrant.
Incorporation of the Bill of Rights is why that is.
The true trend, which you are ignoring, is that since the 14th amendment the Bill of Rights has been steadily incorporated as to applying to the states.

[thegreekdog]

We tend to ignore caselaw that has been overturned in subsequent caselaw. When we do that we no longer are strict constructionists (if that is what we wish to be). I named a number of cases dealing with the Second Amendment and, again, up until 2008 all of them dealt with a collective right, not an individual one. You can ignore those cases and rely upon D.C. v. Heller, but you cannot ignore those cases in favor of D.C. v. Heller and then pretend that you are a strict constructionist and that the Second Amendment has always granted an individual right to bear arms.

But you are ignoring all the case law that steadily incorporated the Bill of Rights beginning in 1897. Virtually the entire Bill of Rights has finally been incorporated in the year 2010 with McDonald vs Chicago.
It was only a matter of time, and looking at how the rest of the Bill of Rights was slowly incorporated, you should not be surprised.

Imagine moving to a state where you did not have the right to free religion. Or freedom of press, or freedom from unreasonable search and seizure. Today any one of us would pitch a fit if the cops just strolled up to your house one day and just walked in and started ripping the place apart without a warrant.
Incorporation of the Bill of Rights is why that is.
The true trend, which you are ignoring, is that since the 14th amendment the Bill of Rights has been steadily incorporated as to applying to the states.

Do you know why it took until 2010 for the Fourteenth Amendment to apply to the Second Amendment? Let me put it another way. When the Second Amendment was ratified, was it ratified as a response to the potential abuses of state and local governments or as a response to the potential abuses of federal governments? The context of the ratification of the Second Amendment is absolutely necessary for anyone to understand its purpose. As I've indicated twice before, the Second Amendment was ratified as a right for folks to get together to form a militia to defend themselves against tyrannical centralized governments, like the U.S. states did (individually) against the British government and like the southern states did against the U.S. federal government in 1860. And these also go to the point that the Second Amendment is a collective right and not an individual one. The framers were not concerned about a musket ban by the city of Philadelphia because it did not enter their thinking that anyone who was elected mayor of Philadelphia would ever ban muskets. What did enter their minds was that someone in the federal government would try to usurp power from the state and would ban the gathering of men to form resistance to that usurpation.

[Symmetry]

We tend to ignore caselaw that has been overturned in subsequent caselaw. When we do that we no longer are strict constructionists (if that is what we wish to be). I named a number of cases dealing with the Second Amendment and, again, up until 2008 all of them dealt with a collective right, not an individual one. You can ignore those cases and rely upon D.C. v. Heller, but you cannot ignore those cases in favor of D.C. v. Heller and then pretend that you are a strict constructionist and that the Second Amendment has always granted an individual right to bear arms.

But you are ignoring all the case law that steadily incorporated the Bill of Rights beginning in 1897. Virtually the entire Bill of Rights has finally been incorporated in the year 2010 with McDonald vs Chicago.
It was only a matter of time, and looking at how the rest of the Bill of Rights was slowly incorporated, you should not be surprised.

Imagine moving to a state where you did not have the right to free religion. Or freedom of press, or freedom from unreasonable search and seizure. Today any one of us would pitch a fit if the cops just strolled up to your house one day and just walked in and started ripping the place apart without a warrant.
Incorporation of the Bill of Rights is why that is.
The true trend, which you are ignoring, is that since the 14th amendment the Bill of Rights has been steadily incorporated as to applying to the states.

Do you know why it took until 2010 for the Fourteenth Amendment to apply to the Second Amendment? Let me put it another way. When the Second Amendment was ratified, was it ratified as a response to the potential abuses of state and local governments or as a response to the potential abuses of federal governments? The context of the ratification of the Second Amendment is absolutely necessary for anyone to understand its purpose. As I've indicated twice before, the Second Amendment was ratified as a right for folks to get together to form a militia to defend themselves against tyrannical centralized governments, like the U.S. states did (individually) against the British government and like the southern states did against the U.S. federal government in 1860. And these also go to the point that the Second Amendment is a collective right and not an individual one. The framers were not concerned about a musket ban by the city of Philadelphia because it did not enter their thinking that anyone who was elected mayor of Philadelphia would ever ban muskets. What did enter their minds was that someone in the federal government would try to usurp power from the state and would ban the gathering of men to form resistance to that usurpation.

Ah, psychic lawyers. Dangerous to argue with.

[john9blue]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

i'm sorry the dictionary definition of a word makes you uncomfortable.

[puppydog85]

[quote="thegreekdog"The right to assemble is a collective right. [/quote]

That's a good one. It's a right given to individuals to do as they please as individuals. A collective right would be one that enables assemblies to do something.

[chang50]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

i'm sorry the dictionary definition of a word makes you uncomfortable.

Not all dictionaries are equally reliable,just like encyclopedias,or textbooks generally.I know many people don't trust wikipedia.I can see a problem with the way definition 4 is worded.It refers vaguely to 'the federal government',failing to recognise more than one country has a federal system of government.

[john9blue]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

i'm sorry the dictionary definition of a word makes you uncomfortable.

Not all dictionaries are equally reliable,just like encyclopedias,or textbooks generally.I know many people don't trust wikipedia.I can see a problem with the way definition 4 is worded.It refers vaguely to 'the federal government',failing to recognise more than one country has a federal system of government.

the word "the" refers to the federal government in the country of the aforementioned citizens. its use is perfectly acceptable. "a" federal government would imply that they were protecting themselves against foreign governments (not the case)

[chang50]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

i'm sorry the dictionary definition of a word makes you uncomfortable.

Not all dictionaries are equally reliable,just like encyclopedias,or textbooks generally.I know many people don't trust wikipedia.I can see a problem with the way definition 4 is worded.It refers vaguely to 'the federal government',failing to recognise more than one country has a federal system of government.

the word "the" refers to the federal government in the country of the aforementioned citizens. its use is perfectly acceptable. "a" federal government would imply that they were protecting themselves against foreign governments (not the case)

IMHO a better form of words would be 'their federal government',or just 'their government',as militias can obviously be organised in non-federal systems.Compiling a dictionary is a minefield,it's never wise to totally trust one.

[Metsfanmax]

There is also the little problem of the phrase "of the people". Does this refer to individuals or to collectives?

Take the second amendment-

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.

Is the bold referring to individuals or to collectives?

Now look at the 1st amendment-

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.


Why is that we interpret the 1st amendment to mean that each individual has the right to free speech, religion and assembly, but not the 2nd amendment which uses the exact same wording?

Because we are capable of parsing a sentence, and recognize that "of the people" comes after the individual rights (free speech, etc.) and applies only to the necessarily collective rights (right of assembly, right of petition).