D.C. Circuit Upholds Individual Right to Bear Arms

Good news for those who, like me, believe the Second Amendment confers an individual right to bear arms. The D.C. Circuit Court of Appeals today holds it does. The opinion is here.

Covering the decision extensively: How Appealing, Instapundit, Volokh Conspiracy and Cato.

As Volokh notes, this is not the first federal appeals court to rule this way. The 5th Circuit did in U.S. v. Emerson, which I wrote about here, when contrasting with the 10th Circuit position.

My bottom line on the issue hasn't changed since 2002 when I started TalkLeft:

Being for the Second Amendment doesn't mean defense lawyers are not liberals. It means they won't give up any constitutional right, even ones they may not exercise personally. Give 'em an inch and.....besides, the Second Amendment is only one away from the Fourth.

< NY Firefighters Blast Rudy Giuliani | A Vietnam Vet Speaks on How We are Failing Our Returning Troops >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    I'll take a look (5.00 / 1) (#1)
    by Deconstructionist on Fri Mar 09, 2007 at 06:54:25 PM EST
      I'm curious as to how the court reconciled that holding with United States v. Miller, 307 U.S. 174, 178 (1939), in which the supreme court   held that the Second Amendment confers a collective right to keep and bear arms which must have a "reasonable relationship to the preservation or efficiency of a well-regulated militia."

     I've always thought that was bad opinion and courts have mostly avoided confronting both the plain language and historical context of the 2nd, which I agree requires a very tortured parsing to deny an individual right.

      On the other hand. I'd like to see (but won't) a modern amendment which would place strict and definable limits on the right to bear arms which i thinnk are needed in moder society.

    Well i just scanned (none / 0) (#4)
    by Deconstructionist on Fri Mar 09, 2007 at 07:09:00 PM EST
      (its a long opinion)

     But, it seems the circuit court is essentially saying that the "militia" as of 1798 meant "all able bodied men" (although it was actually all...enrolled for service) so the rest of Miller,  basically holding the government had power to regulate arms unrelated to military purpose,  does not apply. It seems to me the court is essentially explaining away an obvious divergence with the reasoning and express holding of Miller.

       It's pretty bold for a circuit court, even by subterfuge, to "overrule"  SC precedent-- even an old and dubious one. The majority must think the SC is ready to revisit the issue.


    that should be 1789 (none / 0) (#5)
    by Deconstructionist on Fri Mar 09, 2007 at 07:11:48 PM EST
      It's also worth noting that's just a panel opinion and rehearing en banc will no doubt be requested.

    And that is the point (none / 0) (#70)
    by MPhilip on Sat Mar 10, 2007 at 05:17:51 PM EST
    It is what you say Decon:  A court with an agenda. Which is why I find Karen Henderson's dissent so persuasive. She hits the issue square on. No policy, no "I love a right any right," no I hate guns or love guns. No silly word twisting. She said it so simply: the law is what it is until SCOTUS says it ain't, and by the way Miller was correctly decided.

    Miller (none / 0) (#81)
    by ravenshrike on Sun Mar 11, 2007 at 12:47:24 PM EST
    Actually, Miller wasn't DECIDED at all. Miller was REMANDED back to the lower courts with the note that unless a short shotgun could be found as a weapon useful to the militia, nothing changed. Given that, one can assume that had such evidence been presented(which it could have) then the lower courts original decision would have been wrong. However, Miller was dead and his co-defendant plea-bargained, so the issue never went to trial.

    Actually (none / 0) (#85)
    by Deconstructionist on Sun Mar 11, 2007 at 01:38:52 PM EST
      The LAW was decided. Remands are for the lower court to apply the legal holding to the facts found.

      I think most-- from all sides of the issue-- can find fault w/ Miller for a multitude3 of reasons  but that does not mean it is  not still precedent and that it holding until modified by the Supreme Court reamins law.

      Certainly, at the Supreme Court level, it can be oveeruled. In lower courts, judges are expected to apply precedent even if they disagree with them. that's why the DC court of Appeals panel went to such lengths to distinguish Miller and claim it was not acting contrary to its holding.

      I suspect, the judges knew exactly what they were doing and think if this or a similar case from another circuit reaches the SC that the current SC will likely do what it has the power to do and  expressly overrule Miller rather than relying on an attempt to reconcile.


    concur overall and also (none / 0) (#9)
    by scribe on Fri Mar 09, 2007 at 08:07:53 PM EST
    with the analysis of Miller.  IIRC, in Miller the issue was regulation of machineguns under the 1934 Act, and IIFRC, Miller didn't show up in the Supreme Court, leaving only the Gov't to be heard.

    Miller, Emerson, Concealed Carry, etc. (none / 0) (#66)
    by John B Brown on Sat Mar 10, 2007 at 05:00:58 PM EST
    http://jurist.law.pitt.edu/guns/emerson.htm is one link for those in need of some historical and philosophical parsing. It is also more recent than the uncontested, irrelevant Miller non-decision.
    The essence of Miller is described thusly:
    "Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the
    National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act. The court below dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment." He didn't show up, even through counsel, at the Supreme Court; apparently he got back his shotgun so he didn't care anymore.
    So, no "machine guns" involved, and the current crop of distortions to McReynolds absurdity as a defence for disarming citizens is due for some drastic change.
    The right to carry a concealed arm is explicit in the constitution, as amended, needing only some rational expression in law for uniform application of that right. National expression will NOT remove some imagined "right" of states to infringe. We are, first of all, people under the constitution and carry all the rights and protections that affords.
    For those concerned about armed "neighbors", arm yourselves. We live in a one time only world. You get one pass only. All it takes to end yours is one uncontrolled berserker and one millisecond. It's your personal duty to control your particular berserker. The argument that CCL holders exert a "halo" is a bogus point. Personal existence, and it's fragility, is the point the founders make.
    Get serious, folks; you only have one life. If you must give it to a criminal make sure it is while you act for you or your family's protection.

    Originalist or Living Constitutionalist? (5.00 / 3) (#10)
    by Peter G on Fri Mar 09, 2007 at 08:53:59 PM EST
    The language does seem to say that the reason the people have the right to keep and bear arms is that they need to be able to participate in a well-regulated militia, which is necessary to the security of a free state.  It doesn't exactly say that only those who do participate in the "militia" are entitled to keep (possess privately) and bear (carry) arms, although it could certainly be interpreted that way.  But why did the Framers believe that a well-regulated militia was necessary to the security of a free state?  Because it would allow the people to defend themselves against any attempt by the central government to use a paid (standing) army to take away their liberties, that is, to prevent the militarization of civilian society.  It seems to follow from this, that the "arms" that the people would be entitled to keep and bear would be the sort of weaponry that might prove effective for this purpose. (Just as stored e-mail today counts as "papers" under the Fourth Amendment even if never printed on paper.)  Not handguns, surely, against the modern professional military.  The only arms that would possibly serve the core purpose of the Second Amendment today would be anti-aircraft guns, missiles, and highpowered automatic weapons, plus (we have recently learned) IEDs, car bombs, etc.  I'm not a certified constitutional scholar, so I might be wrong, but I think that an originalist (a la Scalia) should say that only flintlocks and derringers are protected "arms," while the proponents of a "living Constitution" would ban handguns but support private ownership of nuclear weapons.  Did I get that right?

    Interesting interpretation (none / 0) (#11)
    by Edger on Fri Mar 09, 2007 at 09:19:42 PM EST
    of "living constitution" in light of evolving technology and growing power of the central government. The more powerful the federal government the broader the rights of the people to use technology? Is communication technology a potential weapon?

    I'm of a similar mind (none / 0) (#16)
    by Light Emitting Pickle on Sat Mar 10, 2007 at 01:19:42 AM EST
    What does the right to bear arms mean? Does it mean that you can have a handgun, a bazuka, a missile launcher, a nuclear warhead?

    I'm all for people being able to hunt, but I don't understand why hunters "need" an assault rifle.

    That said, if the point is to be able to counteract a military state, then why aren't citizens allowed to acquite modern weapons? And, no, I am NOT advocating this.


    Assault rifles (none / 0) (#18)
    by Wile ECoyote on Sat Mar 10, 2007 at 07:11:33 AM EST
    Have been illegal to own since the twenties.  Now if you are talking about rifles that look like assault rifles being bad then....

    So when I read about attempts (none / 0) (#37)
    by Light Emitting Pickle on Sat Mar 10, 2007 at 12:05:57 PM EST
    to ban assault rifles, they're not really talking about assault rifles?

    And, my questions were the following: What is considered arms? Does the second amendment preclude the banning of any type of weapon?


    Nope (none / 0) (#40)
    by Wile ECoyote on Sat Mar 10, 2007 at 01:03:57 PM EST
    Assault rifles are automatic.  Pull the trigger and the rounds fire until the mag is empty.  Those have been illegal since the twenties.  The problem is politicians try to make something that looks mean illegal.  Most rifles and pistols and the great percentage of shotguns are semi automatic.  Pull the trigger and one shot.  What is the percentage of crimes where "assault rifles" have been used anyway?

    legal definitions (none / 0) (#48)
    by Deconstructionist on Sat Mar 10, 2007 at 01:53:35 PM EST
     are different than popular definitions

      In the law "assault rifles" encompass more than fully automatic weapons. A number of features can cause a rifle to be categorized in the law as an "assault rifle"  I can't list them all off the top of my head but they include things like the type of stock, certain grips, length, capacity, muzzle guards, flash suppressors, etc.


    assault rifles in crimes. I did comment, however, on whether or not one has a right to possess an assault rifle. Or bazuka, Or nuclear weapon. Who decides where to draw the line?

    What (none / 0) (#60)
    by Wile ECoyote on Sat Mar 10, 2007 at 03:27:33 PM EST
    the heck is a bazuka, like a burka?  I guess the homeowners, if they can fit a missile silo in the yard, can have a nuke.  They can also grow pot down there and have sex with goats for all I care.  Just as long as the condo association doesn't mind the flag on the house.  

    I've used this argument on gun nut sites... (none / 0) (#72)
    by p lukasiak on Sat Mar 10, 2007 at 06:58:02 PM EST
    I've used this argument on gun nut sites.... starting out small, and extending the argument to nuclear weapons.  The nutcases go crazy, of course.

    My personal opinion is that the 2nd Amendment is null and void -- "well regulated militia" has been rendered meaningless within its original context -- and absent that context, there is no "there" there.

    When that Amendment was passed, the Founder still thought the US didn't need a "standing army" (while acknowledging the need for a standing Navy.)   That's why they needed militias -- and their opposition to taxation meant that militiamen were expected to provide their own rifles.  In truth, the 2nd Amendment outlived its purpose when the good guys won the Civil War (personally, I think the South had every right to secede, but they lost that war, and the nature of the US government and its constitution changed as a result.)


    If (none / 0) (#79)
    by Wile ECoyote on Sun Mar 11, 2007 at 10:55:54 AM EST
    you want to pose this straw man argument then go ahead.  I will reply that sure, if you want a nuke then you should be allowed to have it.  Of course where are you going to get the weapons grade material to make it?  how about the explosives to set off the chain reaction?  how about the centrifuges to make the necessary weapons grade material?  How about the electricity to power the centrifuges to make the material?  The machinery to machine and mill the material?  

    Remember (5.00 / 1) (#19)
    by Deconstructionist on Sat Mar 10, 2007 at 07:18:37 AM EST
      Establishing that the 2nd confers an individual right as opposed to a collective right does mean the individual right is an ABSOLTE right.

      Constitutional rights are subject to limitation. Look at freedom of speech from the 1st. We have defamation laws whivch are enforced by government. We have obscenity laws. We have distinctions between commercial speech (subject to greater control) and political speech. We have campaign  and political spending laws.

       If this position is adopted by the Supreme Court it does mean that all existing state and fderal gun laws will be voided nor does it mean new laws would be unconstitional. Remember the D.C. law under question here essentially acts to bar the private ownership of handguns by people who were not "grandfathered" in or have a certain status (active or retired law enforcement and there may be other categories, I'm not sure) so its a very broad (but not complete)ban and nothing approaching a narrowly tailored regulation.

      The real significance would be the starting point of a court's analysis of whether a law is constitutional. If the  individual has no constitutional right to bear arms then government has near plenary power to restrict that and the individual has little constitutional protection as to his "right" (although he may have equal protection arguments in some cases and some laws would violate even the collective doctrine0.

       If there is an individual right then the starting point is now the degreof intrustion on that individual's right and whether it is justified by the "greater good" as deemed by a legislature.  

       With any constitutional right at the very least t he burden will be on the government to show that any  regulation restricting an individual's right is rationally related to a legitimate governmental interest. Maybe more likely, a court might decide regulation must  withstand intermediate scrutiny by being narrowly tailored to address and substantially further an important governmental interest. Even if it is deemed a "fundamental" right and  strict scrutiny were applied  regulations would be permissible where a compelling governmental interest is found and the least restrictive eans to advance that interest are employed by the regulation.

      I don't think this would open the door for corner stores selling RPGs to anyone with the cash, but it would definitely call into question any laws banning or very broadly restricting  sales or possession of handguns or long guns. In the middle wer will have a ton of issues about the degree of governmental interest and the breadth of regiulations as to certain types of wepaons and ammunition. clearly, thegovernment would have a higherr burden if this were to be affirmed by the SC.


    I wish this site allowed editing! (none / 0) (#25)
    by Deconstructionist on Sat Mar 10, 2007 at 10:07:18 AM EST
    the sentence:

    "If this position is adopted by the Supreme Court it does mean that all existing state and fderal gun laws will be voided nor does it mean new laws would be unconstitional"

    Should read:

    If this position is adopted by the Supreme Court it does not mean that all existing state and fderal gun laws will be voided nor does it mean new laws would be unconstitional.

      Being a bad typist and quickly dashing things off can cause problems.


    Change in laws (none / 0) (#68)
    by MPhilip on Sat Mar 10, 2007 at 05:12:09 PM EST
    I disagree Decon. If the NRA point of view is adopted, then where does the State derive the power to regulate as to who, what, when, where, and how an individual keeps and bears arms?

    States.. (none / 0) (#76)
    by Deconstructionist on Sun Mar 11, 2007 at 09:24:08 AM EST
      (As in the 50 states)  each have inherent police power to regulate activities which affect public safety. Every state has its own constitution which may serve to limit its legislature and executive but essentially beyond that the states have the power to enact legislation that does not vioplate the U.S constitution. (supremacy clause and interstate commerce clause and a few other provisions beyond the BoR and later amendments come into play0

      As I said elsewhere in this thread, adoption of the individual rights doctrine for the 2nd will NOT make all gun legislation at either the state or federal level vopid. It will change the standard of review and place a higher burden on government to justify the need for legislation and to show that enactment meets that need without unnecessarily going further than necessart to meet the identified need.

      Who will decide THAT? Courts just as they do now under the concept of judicial review which goes all the way back to marbury.



    Obviously not the best venue for this discussion (5.00 / 1) (#58)
    by rantbot on Sat Mar 10, 2007 at 03:14:30 PM EST
    Gone astray right from the start.

    The 2nd does not "confer" a right to bear arms. It acknowledges a right which is "God-given" - that is, a little bit of natural law which predates the Bill of Rights. That was the 18th century theory, at least.

    "Assault rifles" have not been "banned" since the 1920s. Machine guns have been registered and heavily taxed since the mid-1930s (National Firearms Act). That is not banning. Assault rifles - the real thing - didn't appear until the 1940s. What the gun grabbers call "Assault Rifles" aren't, in any meaningful sense. They just use the term to stampede the public, as people have votes even if they don't know flip about guns.

    The 2nd Amendment did not originally refer to weapons which one could carry. Recall the agony the American privateer fleet caused to the Royal Navy and British carrying trade during the War of 1812. Privateers were all privately owned - hence the name. The armed ship was the strategic weapon of the day. A commission as a privateer did not confer a right to be armed. Ships in those days were armed as a matter of routine. Evidently a restricted interpretation of the word "bear" did not preclude such armament. A privateer commission, or, similarly, a letter of marque, meant only that seizure or destruction of British property, or attacking British subjects with guns and swords, was not piracy. The performance of the various American militias on land was not particularly impressive during the War of 1812, but the performance of something essentially indistinguishable from a militia, the privateers, at sea, was a crucial factor in the war.

    And please, people, don't cite the Miller decision unless you've read it. It's not that long or difficult. It doesn't say what far too many people think it says. The Miller Court decided to play dumb, and claim that it wasn't aware that a "sawed-off" (whatever that means) shotgun contributed to the efficiency of a militia. As Miller himself had skipped town, no counterargument was offered, and the Court could claim ignorance of the fact that "sawed-off" shotguns were military weapons, and therefore also legitimate militia weapons. They were in fact used by the Army in the war with the Moros, in the trenches in France (hence the military name, "trench gun"), and, after Miller's day, by the Marines in the Pacific, in Viet Nam, and on patrol in Lebannon after the barracks bombing. On the other hand, the Miller decision does not mean that if the Court had stooped to acknowledge the fact that the weapon in question was indeed a legitimate militia weapon, that it would have found for Miller after all. It implied that the Court would at least be receptive to an argument that the 2nd meant that the public could indeed keep and bear, and maybe even transport across state lines, weapons which would be appropriate for the military. But it didn't actually say that. The decision is actually quite useless. All that Miller really tells us is that the SCOTUS shouldn't hear a case if nobody is going to show up to argue it.

    I'm still waiting to hear an appeals court tell us why "shall not be infringed" means that "reasonable" controls are A-OK. I can think of a rationale, but I'd like to see a court do its own work on that one.

    Very clear (none / 0) (#59)
    by squeaky on Sat Mar 10, 2007 at 03:26:22 PM EST
    I'm still waiting to hear an appeals court tell us why "shall not be infringed" means that "reasonable" controls are A-OK. I can think of a rationale, but I'd like to see a court do its own work on that one.

    Yes, I don't see how that squares either.

    Sawed off shotgun is literally a sawed off shotgun. The shot, because of traveling a shorter distance down the barrel, disperses at a wide angle with less force. It tends to wound more and kill less. That is if you are not too close.


    God given right (none / 0) (#62)
    by MPhilip on Sat Mar 10, 2007 at 04:12:47 PM EST
    Well ranbot, you have me there. If god gives each person in every state the right to keep and bear arms, and the second amendment is merely an affirmation of it, than the argument is over.

    If you only let me know which god, and whose god, and where it says so for, example, Buddists, I would have before me a new view.

    If you do not truly mean god given, but instead you meant that "the right" to bear and keep arms of any type or any kind by anybody, is a "right" afforded by "natural law," that too is a bit confusing, since there are just too many theories of natural law, e.g., Liberal natural law, Hobbes' natural law, Christian natural law, jurisprudential natural law, and many other categories, and it's hard to find a clear answer from each as to which controls our constitution as written.

    As to your "dumb down" theory of the Miller court's reading of the second amendment, I am not so sure they were that dumb, or that they were unmindful of its express words. Yet having read that case many times, I find the Miller unanimous opinion as persuasive as ever: There is a hardly a paragraph in the opinion which supports an analysis asserted by the NRA's view of the second.

    Miller was a second amendment case, where the trial court sustained the demurrer (granted what we call a motion to dismiss) to a indictment charging possession of a sawed off shot gun in violation of the National Firearms Act.

    The trial court accepted the defendant's argument that such legislation was within the state's power, and not that of Congress, and secondly, that the law "offends the inhibition of the Second Amendment to the Constitution --'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.'"

    The Court disposed of both arguments and reversed the trial court's dismissal.

    Almost every paragraph in the opinion undermines the NRA's second amendment point of view, starting with:

    "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less that eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that is use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."
    (Words in bold letters are mine.)

    And this:

    "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

    The entire Miller opinion, as expressly noted by Judge Henderson's dissent, leaves no doubt that Miller stands exactly for what most, if not every state in the union that has and presently regulates the keeping and bearing of arms, have understood the second amendment to mean. The rest is history.

    Now, if you argued, that Jane Doe today is caught in New York City, carrying a concealed handgun as part of her duties required by New York State's "militia," and she is charged criminally for that act, and defend using the second amendment, than the story would be quite different.

    That story is not here.


    not relevant (none / 0) (#73)
    by p lukasiak on Sat Mar 10, 2007 at 07:02:07 PM EST
    The 2nd Amendment did not originally refer to weapons which one could carry. Recall the agony the American privateer fleet caused to the Royal Navy and British carrying trade during the War of 1812.

    The Constitution recognized the need for a standing "federal" Navy--- thus, bringing in Naval issues to the discussion of the 2nd Amendment (which references militias because the founders did not want a standing federal army) is a complete non-sequiter.


    rantbot (none / 0) (#77)
    by Deconstructionist on Sun Mar 11, 2007 at 09:33:25 AM EST
      "The 2nd does not "confer" a right to bear arms. It acknowledges a right which is "God-given" - that is, a little bit of natural law which predates the Bill of Rights. That was the 18th century theory, at least."

      Iin the abstract, that is a fair summary of the philosophies of Locke and Rosseau which imformed the founders. but, there is plenty of disagreement as to whether the right to bear arms as found in the 2nd was intended to be recognized as a FUNDAMENTAL  right which exists above and apart from any positive law. Not all consitutional rights are necessarily "fundamental" rights.

      It is also needs pointed out that just because a certain philosophy informed the drafters of the Constitution does not mean everyone else has to adhere to that philopsophy in addition to adhering to the product itself-- the words of the Constitution. We are a nation of laws not of philosophy.

      People need to understand that there is no simple, inarguable "divinely right" answer to complex questions. YOUr view is just that. YOUR view. It happens to be a perfectly reasonable one and one that can be strongly supported but so can other competing views.


    Agreement comes slowly (none / 0) (#80)
    by MPhilip on Sun Mar 11, 2007 at 12:18:40 PM EST
    You replied to rotbot:

    "YOUr view is just that. YOUR view. It happens to be a perfectly reasonable one and one that can be strongly supported but so can other competing views. "

    I see you and I are getting closer on the argumentation approach to this issue.


    because rights are not absolute (none / 0) (#86)
    by Deconstructionist on Sun Mar 11, 2007 at 01:50:21 PM EST
    Elsewhere in this thread, I pointed out using the first Amendment, various examples of laws which have been upheld despite infringing upon the right to free speech.

      You can disagree with that and "absolutists" do exist, but that is NOT the law that has developed in this nation since 1789.

      Courts apply balancing tests and the standards for the weighing of interests vary from issue to issue and reasonable (and unreasonable) people differ widely on the weight they think should be assigned various interests, but that's how it works.

      If you don't UNDERSTAND you either aren't trying or you simply lack the capacity. Understanding and agreeing are two different things.

      Of course, you will be very limited in your ability to promote change against things with which you disagree if you don't understand the basis for their existence.


    misplaced my post above (none / 0) (#87)
    by Deconstructionist on Sun Mar 11, 2007 at 01:53:27 PM EST

    it was in response to:

    "I'm still waiting to hear an appeals court tell us why "shall not be infringed" means that "reasonable" controls are A-OK. I can think of a rationale, but I'd like to see a court do its own work on that one."


    erfore calling other people ignorant... (1.00 / 1) (#39)
    by Deconstructionist on Sat Mar 10, 2007 at 12:27:24 PM EST

    you should make sure you have your ducks in a row.

     The word "people" nowhere appears in the 5th:

    No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. "

      You are free to have your opinion as to the policy issues and advocate guns for everyone as tactic against crime. Those who want an outright ban as amatter of policy are free to have that opinion as are all the vast multitudes in the middle.

       We were having what I think one of the best discussions I have seen here until you plowed in with a rant.

      There's plenty of ranting here. Why don't you go find squeaky, edger or sailor and play with them? your styles match perfectly and your opinions clash tremendously so you all should have tons of fun.

    Well said (none / 0) (#63)
    by MPhilip on Sat Mar 10, 2007 at 04:36:24 PM EST
    This time we are in perfect agreement Decon.

    Jeralyn (none / 0) (#2)
    by sarcastic unnamed one on Fri Mar 09, 2007 at 07:02:22 PM EST
    It means [I] won't give up any constitutional right, even ones [I] may not exercise personally.
    Right on.

    Well it's definitely a win for the NRA (none / 0) (#3)
    by annefrank on Fri Mar 09, 2007 at 07:04:52 PM EST

    Guns are great, guns are good (none / 0) (#6)
    by Dadler on Fri Mar 09, 2007 at 07:37:23 PM EST
    And anyone who's ever been shot, shot at, had a gun held to their head, will tell you a quite different tale.  Rah-rah for gun rights is strictly the territory of those who have never been on the wrong end of our substitute penis fascination with firearms.  The right to bear arms will not go away, nor will the reality of its effect.  Don't ever piss or moan or complain or act shocked when the great American massacre takes place.  Or you are entirely full of sh*t.  Supporting the current state of guns in this country is no different than supporting the status quo on pollution because it will hurt the economy and people's right to pursue happiness.

    Save the rah-rah stuff.  Sometimes there is nothing to celebrate in a certain kind of "victory".  Knowing how f*cked up with gun violence this country is, then celebrating this decision, well, there's something really conflicted about that, in a way that cannot be rationalized.  It simply is.

    That should have read... (none / 0) (#7)
    by Dadler on Fri Mar 09, 2007 at 07:39:15 PM EST
    Supporting the current state of guns in this country is no different than supporting the status quo on pollution because to take real action will hurt the economy and people's right to pursue happiness.

    Anyone? Are you sure? (none / 0) (#12)
    by sarcastic unnamed one on Fri Mar 09, 2007 at 09:23:22 PM EST
    And anyone who's ever been shot, shot at, had a gun held to their head, will tell you a quite different tale. Rah-rah for gun rights is strictly the territory of those who have never been on the wrong end of our substitute penis fascination with firearms.
    I, being such an "anyone," beg to differ.

    I can only imagine (none / 0) (#13)
    by squeaky on Fri Mar 09, 2007 at 10:34:33 PM EST
    What do you have now, an assault rifle? Seems to me that the line drawn is rather arbitrary, no?

    squeaky (none / 0) (#23)
    by sarcastic unnamed one on Sat Mar 10, 2007 at 09:51:14 AM EST

    Let me be more clear: I have had guns drawn on me twice in my lifetime by guys deadly serious about their use yet I still support the 2nd.


    Just wondering (none / 0) (#36)
    by squeaky on Sat Mar 10, 2007 at 11:36:47 AM EST
    What you have. And, it does seem crazy to me that some guns are legal and some are not.

    Rather fuzzy all the way down the line from the 2nd amendment to the gun laws.

    It would be quite different if guns were required and there was  mandatory, regular training on their use. That way we may be all safer like in Switzerland...Oh, sorry, bad example, too homogeneous a country.


    We agree here (none / 0) (#42)
    by sarcastic unnamed one on Sat Mar 10, 2007 at 01:10:25 PM EST
    And, it does seem crazy to me that some guns are legal and some are not.

    And (none / 0) (#43)
    by squeaky on Sat Mar 10, 2007 at 01:12:30 PM EST
    Where do you draw the line? Nukes?

    Or do you draw a line?


    why? (none / 0) (#44)
    by Deconstructionist on Sat Mar 10, 2007 at 01:18:51 PM EST
      Why is it "crazy" to say, for example, one can have a single-shot or semi-automatic weapon but not a fully automatic weapon?

      Or one may have hand gun but not with certain clibers or muzzle velocities that are deemed unreasonably dangerous when weighed against their legitimate utility?

      Or one may have a weapon with a magazine that holds a certain number of rounds but high capacity magazines serve no legitmate purpose sufficient to outweigh the greater potential risk created?


      I see nothing even slightly "crazy" about any of that. One might disagree with a particular  regulation one way or the other but how is the opposing viewpoint "crazy.?



    Because (none / 0) (#45)
    by squeaky on Sat Mar 10, 2007 at 01:29:05 PM EST
    It just takes one bullet to kill someone. Are you afraid that too many will be killed by a madman, or are you concerned about the collateral damage from an accident?

    And as far as hunting goes, wouldn't it be better to have an automatic assault rifle? Much more efficient. I think that the NRA concurs and they should know, right? Animals travel in packs and birds in flocks.

    An automatic weapon could allow a hunter to pretend that there was a typical english style fox hunt. Lots of bullets but only one person.


    OK (none / 0) (#46)
    by Deconstructionist on Sat Mar 10, 2007 at 01:45:51 PM EST
      I think the answer might be as simple as if an irrational person call something crazy, it probably isn't.

      Pardon me for interupting your nonsense.


    Irrational (none / 0) (#49)
    by squeaky on Sat Mar 10, 2007 at 01:55:32 PM EST
    Where does the constitution argue against automatic weapons?

    If someone wants to kill what is the difference? Certainly if having a gun is only about defending oneself an automatic weapon would be choice.


    Damn (none / 0) (#47)
    by sarcastic unnamed one on Sat Mar 10, 2007 at 01:52:20 PM EST
    and I was "this" close to getting out the door...

    Anyway, by "crazy" I was mostly referring to those laws which ban on "assault" guns, squeaky may well have been thinking of something entirely different.

    But, back to the bigger question of what I think the 2nd meant w/regard to the actual weapons.

    In the main, in those days, militias were armed with pistols, rifles and cannons.

    Cannons, to me, are differentiated from pistols and rifles in that they weren't, I don't know, "personal" weapons - were the most powerful weapons available at the time - and they were probably way too expensive for the common man to own.

    Also, when it was written, the "arms" you could physically "bear" were, essentially, rifles and pistols. You couldn't "bear" a cannon for instance.

    And, if called upon to be a "militiaman" you would certainly be reasonably expected to have a rifle and/or pistol, but the "state" would likely be the party reasonably expected to provide the cannons.

    Today, while one could probably physically "bear" today's version of yesterday's cannon (the most powerful weapon of the day, ie., squeaky's nuke or a dirty bomb) and also could probably be afforded by a "common-ish man," it does not, to me, qualify as a "personal" weapon as I think the 2nd intended.

    Therefor I would say that nukes are over the line, and that the "line" may not be something that's easily definable. iow, whether or not a weapon is covered under the 2nd, ie., "the line" may be something that needs to be decided on a case by case basis.


    Yes (none / 0) (#50)
    by squeaky on Sat Mar 10, 2007 at 01:57:18 PM EST
    I did mean assault rifles.

    those are good points (none / 0) (#51)
    by Deconstructionist on Sat Mar 10, 2007 at 02:00:43 PM EST
      and help to illustrate some reasons  why distinctions are not "crazy."

      Let's look at it another way.

      Say your mom said it was safe to jump off a three foot platform into the deep end of a swimming pool where you could see there were no hazards but said it was unsafe to jump from 150 feet onto concrete. You'd likely think she wasn't crazy just because they both involve jumping.

      The inability to make rational, common-sense distinctions or even grasp them when other people make them might be termed crazy, though.

      Sure, different people can have differing ideas on where lines should be drawn, but the only craziness is when extremists enter otherwise rational debates with mindless nonsense.


    Are the (none / 0) (#52)
    by squeaky on Sat Mar 10, 2007 at 02:06:16 PM EST
    Swiss crazy?

    Seems to me like a very slippery slope, your argument that is.


    I wasn't alluding to the Swiss... (none / 0) (#54)
    by Deconstructionist on Sat Mar 10, 2007 at 02:08:03 PM EST
     I was alluding to you.

    Nice (none / 0) (#56)
    by squeaky on Sat Mar 10, 2007 at 02:12:58 PM EST
    Nothing in the bank but insults? Is this due to your being 'no small talent' or your self congratulatory swollen head.    

    I assume you're not talking to me (none / 0) (#55)
    by sarcastic unnamed one on Sat Mar 10, 2007 at 02:08:47 PM EST
    but, just for the record, I don't think "distinctions" are crazy, however, many of the specific "distinctions" that make up our "assault" weapon ban laws are.

    I'm off to the range now.

    Easy there squeaky, it's a golf range not gun range...not that there's anything wrong with it.


    i was not alluding to you.. (none / 0) (#57)
    by Deconstructionist on Sat Mar 10, 2007 at 02:14:02 PM EST
     you usually make sense even when I disagree with you. Squeaky and a few others anever make sense and even though i do share some views with them. i thinnk they are ignorant, narrow-minded, dishonest, irrational and generally just despicable. I do question their psychological well-being.

      As to thinking some distinctions are "crazy" I don't get it. I can see thinking that a collpasible stock should not conver an otherwise illegal weapon into an illegal one. I don't see how, even if you disagree with it, you can find the rationale that makig a weapon easier to carry and conceal makes it more dangerous is "crazy."


    Me too (none / 0) (#64)
    by Patrick on Sat Mar 10, 2007 at 04:53:44 PM EST
    Having been shot at 3 time (all three missed), I still support the right of individuals to keep and bear arms.   If you want to know what kinda guns I have, come on over, we'll drag them all out and I'll show em to you.  One is a colt SMG.  That one belongs to the department, but I still keep it at home.  

    As am I, buddy boy (none / 0) (#65)
    by Dadler on Sat Mar 10, 2007 at 04:56:39 PM EST
    Should've been more clear.  No, obviously, not every single person would not react the same way, and our individual experiences had a different effect on each of us.  Happens.  But I will still bet, confidently, a solid majority of people who have been victims of gun violence do not want handguns to be more readily available, or gun laws to become less regulatory.  

    I disagree (none / 0) (#17)
    by plumberboy on Sat Mar 10, 2007 at 06:17:07 AM EST
    I think freedom is freedom.I know that crimnal's don't register their guns and will continue to kill people .Taking guns or freedoms away from law abiding citizen's is never the answer to combating crime.I know there has been several accounts where law abiding citizen's use their concealed registered gun to stop a crime.I also have lot's of friend''s who hunt and love it.I personally don't own a gun or hunt I like to fish that 's my thing but maintaining personal freedoms should always be the driving force in this country. The lack of personal freedoms is in fact why this nation was started.

    Guns suck..... (none / 0) (#21)
    by kdog on Sat Mar 10, 2007 at 09:22:23 AM EST
    I've never even held one....but the only person to ever pull one on me was an agent of the state, and I damn sure don't want the state to be the only ones to have them.  That's a recipe for disaster.  

    policy is one thing (none / 0) (#24)
    by Deconstructionist on Sat Mar 10, 2007 at 09:51:37 AM EST
     but the Constitutional issues are another.

      As a matter of policy, I agree with  strict regulation of dangerous instrumentalities or activities  including guns. However, most dangerous instrumentalities are not expressly afforded constitutional protection. No one can argue I have a CONSTITUTIONAL  right to pollute the property of others or public property. We thus have nuisance laws and discharge regulations and a whole slew of laws regulating activities which pollute. None of the attacks on those laws can be credibly based on the constitional right of the polluter to pollute (there may be commerce clause issues limiting state's rights to regulate as opposed to the Feds but that's not the same as the person having the right to pollute.0

      But, we do have the 2nd amendment. Rather than intellectual contortions to pretend it doesn't mean anything if we agree policy concerns dictate regulations forbidden by it, we should amend the Constitution. Obviously, that is much more difficult than merely passing a law but that was the intent. This is an area where much greater  obstacles to the government were deliberately put in place.

      In the 20th century we tended to see efforts to evade the obstacles through dubious reasoning rather than arguments to remove the obstacles. That type of action is dangerous. If you twist the law to empower government in one area it tends to support doing so in others.

      I would wholeheartedly support a new Amendment which would essentially declare that in a modern, crowded and technologically advanced society the right to bear arms may be rerasonably regulated by a state or the federal government upon legislative finding such regulation promotes the general welfare. I just don't like pretending the constitution already says that when it doesn't.

       This issue is another one where my incessant argument that people on both sides just want to control government and have it restrict what they think should be restricted and allow what they want allowed without regard to the law or process applies.

       Many of the same people who argue government should have broad powers to restrict guns also argue it should not have broad powers to restrict abortion. The right to bear arms is expressly stated in the Bill of Rights. You have to to to emanations of penumbras to make the case for abortion.

      If you support a court finding that not only does an ummentioned and amorphous right to privacy exist in the Bill of Rights but that "privacy" incorporates the decision to have an abortion and it is unconstitutional for a legislature to say a woman can't have an abortion, how do you reconcile arguing it is constitutional for the same court to say the same woman can't have a firearm?

      These arguments have all become centered on twisting words to pretend that whatever policies one likes are constitutional and those one dislikes are unconstitutional and the same people twist in precisely opposite directions depending on the policy under consideration.

      Everyone wants thing both ways.


    The current state (none / 0) (#27)
    by roy on Sat Mar 10, 2007 at 10:48:11 AM EST
    Since Washington DC in the focal point, it seems that the "current state of guns" is extremely strict gun control law and very high gun crime.  I'm not sure who supports that, but it's probably not the individual rightists.

    (I'm not claiming that arming the DC populace would immediately reduce crime.  DC is demographically bizarre and even experts don't seem to be able to explain its trends.)

    And you don't speak for everybody who's ever been shot at.  Victims of guns crimes, and other crimes, sometimes realize through the experience that you can't always trust the government to save you, and prefer to protect themselves.

    "If guns are outlawed, only outlaws will have guns" is an annoying catch-phrase for a reason.  Guns won't blink out of existence if they're banned, and people who are willing to commit murder are willing to commit the crime of gun ownership.  You can only fully disarm the law-abiding.  Violent criminals might have a harder time getting guns under strict gun control (see England), but they'll continue to prey on the rest of us with whatever weapon they can scavenge.  The only fundamental difference is that the victims will be less able to fight back (see England again).

    Somewhat tengentially -- and not trying to put words in your mouth -- it's interesting to me that so many people who advocate strict gun control also oppose the police tactics that would be necessary to enforce it.  It's like firearms gnomes:

    • Step 1: Ban guns

    • Step 2: ?

    • Step 3: All the guns are gone

    DC is like any other inner-city (none / 0) (#67)
    by Dadler on Sat Mar 10, 2007 at 05:04:17 PM EST
    With no real federal representation.  Gun policy doesn't change the social conditions of a ghetto, of course, but it does encourage easier and wider access to handguns and legitimizes them more for everyone.  Which is a huge bad.  Period.

    Yep (none / 0) (#71)
    by Wile ECoyote on Sat Mar 10, 2007 at 05:57:32 PM EST
    A law abiding citizen being able to defend oneself is bad.  

    Isn't the 2nd two away from the Fourth? (none / 0) (#8)
    by jerry on Fri Mar 09, 2007 at 07:53:13 PM EST
    the Second Amendment is only one away from the Fourth.

    Are you sure about that?

    Left to Bear Arms (none / 0) (#14)
    by MPhilip on Fri Mar 09, 2007 at 11:37:23 PM EST
    Having completed reading the majority opinion and Henderson's dissent in this case, there is no easy way to dodge the analytical bases as to each of Henderson's points warranting affirmance.

    I have read Jeralyn's linked post, and find little in it which addresses Henderson's points as they relate to the second amendment's applicability to D.C., and that's only for starters.

    What can be said about Henderson's dissent, is that she is quite right in her conclusion that the majority's 51 page plus opinion can certainly be added to the pile of dicta that has been volunteered by other courts equally interested in ignoring the SCOTUS' opinion in Miller.

    One cannot deem the second amendment a "personal right," simply because we "love personal rights" so dearly, or merely because words are written into the so-called Bill of Rights, where the words used do not provide a personal right. And, the fact that the second is separated by the third amendment from the fourth provides little support  for the argument, except to that say that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law," does raise the question as to whether the spittle we see on the commander in chief's lower lip on the screens of our tv's implicates that amendment, especially when aired by Fox, this government's mouthpiece.

    From a policy point of view, the second amendment - as read by Jeralyn - does not define "arms," as small arms only, so why not nuclear arms, or tanks, or missles, or yada, yada, yada?

    If the genuises who wrote the second Amendment wanted to grant a personal right to bear, own, possess, and carry arms, they could have said so simply, clearly and without doubt. Their failure  to do just that, is the best argument going.

    It's not (none / 0) (#20)
    by Deconstructionist on Sat Mar 10, 2007 at 08:04:21 AM EST
     merely "loving personal rights."

    "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."

      The individual right position as it relates to the text is based on the argument that the first clause merely explains the reason for but does not modify or limit the second clause. i do believe that is the most reasonable interpreation based on the basic rules of grammar and that the argument that the first clause limits the second ignores commonly understood rules of grammar.

       The other textual issue is what does "people" mean. That might be a closer question. "People" can sometimes be merely a plural bu it can also be used to connote a "collective."

      So, what does it mean here? I think the first and best place to look for guidance are the other uses of "people" in the Bill of Rights itself.

    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.

       I don't think this is a "collective" use. Every individual has the right to assemble or petition the goverment without being part of any recognized or authorized body.

    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.

       Again, people is used to mean all individuals and not only those in some collective organization.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


    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

      These two might supply the strongest evidence of what is meant by "people" in the Bill of Rights.

      The ninth basically means that the constitution is meant to limit government not the rights of the people and that just because a right is not specifically spelled out the constitution does not void if it previously existed. It would not make sense if "people" was not merely a plural, because the Lockean concept on which we based our political philosophy was that the individual was free in nature.

       The 10th might be unmistakable evidence bcause it uses the dijunctive "or" to distinguish between the "states" (the collective governmetal organization joining to form the Federal government) and "the people". that clearly implies that people individually have their prior individual rights reserved to them as individuals and only are limited as expressly set forth in the constitution.

      It simply makes little sense to think a document committed both  to EXPANDING individual rights and to carefully preserving those that previously existed was extremely vaguely taking away a right in the 2nd.

      it makes more sense to conclude-- that the 2nd was desired because it was intended to make clear that even if the King infringed upon the right of the individual to bear arms we belive he did not have lawful power to do so and we would not be free if he had been successful in doing so, annd to make future tyranny more difficult we're making it clear that government cannot infringe upon the right of the individual to bear arms.


    Left to Bear Arms (none / 0) (#22)
    by MPhilip on Sat Mar 10, 2007 at 09:48:43 AM EST
    Of course, you are thorough in setting forth the arguments and analysis that Henderson's nicely refers to as the pile - the pages of dicta - that have been writtenso far, and I commend you for doing so in a page. In the end, depending on the SCOTUS strict constructionists' GI stablity, we shall no the answer.

    In the meantime, let me point out that you open with  thge couase in question, where I agree we ought to start:  

    "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."

    Henderson points out that D.C. is not a "State." What is your answer to that, given this is a D.C. and not a State?

    Every single Amendment that you refer to has been a restriction on the Congressional power to impinge upon the "people"'s rights, do you apply the second amendment to the State's power to infringe upon the right to bear arms? Is it your position that the second amendment was needed to tell the States that each State needed a well regulated malitia so do not infringe upon your people's right to bear arms regardless of whether it relates to the malitia's needs?



    "free State" (none / 0) (#26)
    by Gabriel Malor on Sat Mar 10, 2007 at 10:15:09 AM EST
    Pardon me for jumping in, Decon, but I have some thoughts on this one.

    MPhilip, it has already been pointed out here that in the individual rights view, the prefatory clause does not modify the operative clause. In other words, Judge Henderson is only consumed by the meaning of "State" because she has already decided that the prefatory clause must modify the language of: "the right of the People to keep and bear arms, shall not be infringed."

    Even were it the case that the prefatory clause did more than just record the purpose for the Second Amendment, it is doubtful the first Congress intended that the right to carry firearms would only extend to states, but not territories or federal enclaves (which I concede didn't exist then). That would result in the unusual situation where the government could take away your guns in the territories of the rapidly expanding U.S., but not in the states. Since we know that such a thing was never done, we can be pretty sure that it was not that first Congress' intent.

    Furthermore, you will note that in the rest of the Constitution and early Amendments, references to the States are almost always in the plural. The use of the phrase "free State" in the Second Amdendment is most likely meant in the broader sense of "free Polity" or "free Country."

    We can take a clue from the early federal treatment of the Sixth Amendment, too. There, the right to "an impartial jury of the State and district wherein the crime shall have been committed" is protected. But did this mean that the right to a jury is only protected in state courts, but not federal courts? Actually, until the Supreme Court incorporated the Sixth Amendment to the states through the Fourteenth Amendment, it only protected criminals in federal courts, despite the use of the term "State." Once again, the term "State" was understood to mean the "Polity" or "Country," not the states, individually.


    phillip (none / 0) (#28)
    by Deconstructionist on Sat Mar 10, 2007 at 10:52:24 AM EST
    Henderson points out that D.C. is not a "State." What is your answer to that, given this is a D.C. and not a State?

      Again we have a word "state" used differently in different contexts. In the 2nd I think it is obviously being used to refer to something other than "the states of the United States" and is used in its general sense to mean what it means when we say, for example,  "sovereign state or nation."  To illustrate, the United States is a "state" made up of the 50 states (and inter alia, DC).  France or India or what have you are also "states" in that sense. So, I think Henderson's point that under our internal nomenclature DC is not a state is an irrelevant red herring.

      I don't think there is any question that following ratification of the 14th amendment that the 2nd and the other BoR amendments apply to "the states." the 14th, however, did not exist in 1789 and there was no incorporation doctine at the time of ratification.

      I'm not a 2nd Amendment scholar so I'm not 100% sure, but I do not believe the question ever arosethat  I belive  you posit  (correct me if I'm wrong):

      Between 1789 and 1868 when the 14th was ratified could a one of the states have enacted legislation infringing upon the right to bear arms which would have been unconstitutional had the Federal government done it?

       Intersting question and my gut reaction is that yes it could have because prior to the 14th i do not believe courts struck down state laws on federal constitutional grounds.


    minor clarification (none / 0) (#29)
    by Deconstructionist on Sat Mar 10, 2007 at 11:02:48 AM EST
      that last sentence is too broad as written. prior to the 14th Amendment there were decisions using "federal constitutional grounds" to strike down state laws. the supremacy clause and the interstate commerece clause did exist from 1789. but those issues deal with the power of one of the states vis à vis the federal government and not the power of one of the states to infringe the individual liberties of its citizens in ways contrary to the BoR.

    Left to Bear Arms (none / 0) (#30)
    by MPhilip on Sat Mar 10, 2007 at 11:04:38 AM EST
    Good morning Gabriel,

    Nothing makes for a better breakfast than highly charged constitutional analysis. We all know that if we take more than the hundreds of words found throughout  the constitution we can make a case for any reasonable interpretation. You, Decon, Jeralyn, and the others all take reasonable positions in logical ways, and in ways that the syntax may support. In fact, the pile Henderson coins, and the small pile of words I have left behind here, all fit that category.  

    Nevertheless, I do not need to read the rest of the words of other Amendments and so on, in that, as for me, there is no ambiguity requring such a search.

    I simply read the text - "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" - in today's language:  "States," do not fear, we the Feds know you need a malitia to provide security, and so, in that repsect, you as a governmental entity may have your own malitias which may keep and bear arms.  With that, I agree, and today that is the case evidenced by the National guard.

    To say, the Second means: "States," do not fear, we the Feds know you need a malitia to provide security, and by the way, everybody and anybody in your state has a right to keep and bear arms. In  this regard it has nothing to do with State's   malitias, and to "me," it is a Reductio ad absurdum.

    Bottom line for me: States have a right to maintain malitias whose malitia members have a right to keep and bear arms.

    but phillip (none / 0) (#31)
    by Deconstructionist on Sat Mar 10, 2007 at 11:09:55 AM EST
      how can you reconcile saying interpretations different than your own are reasonable with the assetion there is no ambiguity.

      If it was completely unambiguous there could be only one reasonable interpretation.


    Left to Bear Arms (none / 0) (#32)
    by MPhilip on Sat Mar 10, 2007 at 11:29:38 AM EST

    Reasonablity is not related to the correct result.

    "Logically," and from your point of view of construction and interpretation, you position is reasoned, and therefore reasonable, but nonetheless incorrect from my view of construction and interpretation.

    By way of example only, in many instances, the SCOTUS is presented with arguments, and the opinion comes down 5-4. Frequently, the majority and minority, obiously differ, and a reading of both opinions may lead one to the conclusion that both sides have reasoned and reasonable approaches; yet, in the end, the majority of 5 are "correct" within our constitutionnal framework, although you may reasonably assert they are wrong, until such time as another opinion says to the contrary.

    In my experience, where the construction and interpretation of, e.g., the constitution,  statute, contract, conversation, documents or other set of words are in dispute as to meaning, there are frequently reasonable positions that differ.  

    In this respect, I have a feeling that you already know this, but often I benefit from writing the obvious to reach a correct conclusion.


    Also (none / 0) (#41)
    by Deconstructionist on Sat Mar 10, 2007 at 01:09:46 PM EST
      it's not a matter of the correct result but the correct premise from which to start the analysis.

      The rules of statutory construction basically require that a Court is limited to  APPLYING a  statute (or constittutional provision) if the meaning is unambiguous.

      Then, if  there is ambiguity found certain rules of interpretation kick in. The first is that the court must be guided by the text of the statute and the application of the rules of grammar and syntax, etc. Only if we reach that point and it is found there is still ambiguity (i.e., more than one reasonable construction of the words themselves) should a court go "behind the words" and look to legislative history, and sometimes broader historical evidence to determine the "intent" of the enacting body.

      One rule that does not apply to a constitution is that with a statute if there is any possible construction of a statute that saves it from being deemed unconstitutional the court must presume the legislature intended a constitutional enactment and give it the constitutional construction, (Obviously, the constitution can't be unconstitutional so that rule doesn't enter here)

       My point is that it given that this has been a controversial provision basically forever with many reasonable people arguing different meanings from the text, that would seem to be, by definition,  ambiguity at first blush.

       Persoanlly, i think that ambiguity should be resolved by textual analysis as I first described based on grammar and syntax, but I don't think that position is unassailable so i think it will be resolved "extra-textually" by looking to legislative history, other provisions and  broader hitorical interpretation to divine the intent behing the 2nd.

       Perhaps not surprisingly, I believe the "extra-textuual analysis should arrive at the same conclusion as my textual analysis, but at least theoretically it would be possible to believe the text supports "A" but the extra-textual analysis if reached, would support "B."



    Something to read (none / 0) (#33)
    by roy on Sat Mar 10, 2007 at 11:33:12 AM EST
    The Commonplace Second Amendment:

    The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause.  Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era:  State Bills of Rights contained justification clauses for many of the rights they secured.  Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted.  In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.

    YOU also wrote: (none / 0) (#34)
    by Deconstructionist on Sat Mar 10, 2007 at 11:33:53 AM EST
    "If the genuises who wrote the second Amendment wanted to grant a personal right to bear, own, possess, and carry arms, they could have said so simply, clearly and without doubt. Their failure  to do just that, is the best argument going."

      I know when we dash message board posts off we are not as precise as when filing briefs, but wew you not then saying the ambiguity was Your best argument?

    Left to Bear Arms (none / 0) (#61)
    by MPhilip on Sat Mar 10, 2007 at 03:27:52 PM EST

    There are no arguments one besting the other as I see them. There are arguments, and depending upon who judges their merits determines for that person what's best, least or whatever.

    What I am simply pointing out, and while doing so providing various bases to support the conclusion, is this: If the framers intended to make the second amendment one which guarantees every single person living in each state the "personal right," to keep and bear arms, they could have done just that.

    They did not do that, for if they had done that, the Henderson dicta "pile," would not be as huge as it is.  Instead, it is my belief - mine - not yours or others, that the incredibly educated and wise framers wrote something quite different. Those with a different agenda and/or those who read it differently than I, for whatever reason, reach the opposite conclusion, and so it goes.

    Some of these rules of grammar, many of which were adopted years later, are meant to achieve a preconceived notion, or are used to justify a particular conclusion. So be it. It's another point of view.

    Those who see right, any right - and care not whether there's a basis for it - and desire to keep that right no matter what, see it another  way.

    For me, the states - or the federal government when their power is implicated - have the power  to determine if, when, who, what how and where  individuals may keep and bear arms.

    For others the amendment is read to afford a right to each person in each state to decide whether to, and what kind of arms such persons desire to keep and bear in the sashion described above.

    And there are others who see it diffrently than the previous to choices.

    I see it as #1 above.


    The Second guarantees all the rest. (none / 0) (#35)
    by Fritz on Sat Mar 10, 2007 at 11:36:29 AM EST
    The Second Amendment is intended to vest sovereignty with the people.  Well regulated militias is to prevent said militias from infringing on individual sovereignty.  There is no clearer example of the Second Amendment's meaning than Iraq.  These unregulated militias are interfering with the people and their elected government from ensuring the peoples sovereignty.  Each Iraqi residence is allowed one firearm to protect life & property.  I see no problem that residents of DC maintain the same protection from the unregulated gangs that the government has an obligation to eradicate.  Gangs are no different than militias, they are the problem not the citizens.

    Great googly moogly. (none / 0) (#38)
    by ravenshrike on Sat Mar 10, 2007 at 12:14:50 PM EST
    The amount of ignorance here is staggering. Item #1) In every place where to a very great extent gun ownership by the general population is demanded or strongly encouraged(Kennesaw, Georgia;Israel;Switzerland) The crime rates are all extremely low(Palestinian incurred deaths do not count). Item #2) Either people means individuals or it does not. However if the word people does not apply to individuals, then the 1st, 4th, and 5th amendments become essentially worthless. End of discussion on that point. The same word means the same thing, so either they all apply, or none do. Item #3) Many of you need to take your grammar lessons over again. The contents of an operative clause are never solely dependent upon the conditions mentioned in the justification clause unless it is explicitly stated as such. In which case the justification clause generally ceases to be given that it is no longer dependant on the operative.

    Wow, do you sh*t golden eggs too? (none / 0) (#69)
    by Dadler on Sat Mar 10, 2007 at 05:14:46 PM EST
    Japan and Australia.  Strict gun laws, low crime rates.



    Moving on... (none / 0) (#74)
    by Fernman on Sat Mar 10, 2007 at 08:26:02 PM EST

    I believe we all accept that crime rates (even gun crimes) vary for more reasons than the accessibility of firearms.  One could easily offer the examples of Washington, D.C., Chicago, IL, NYC, and other such cities or geographic areas of disproportinate crime rates/gun freedoms.  

    I support an individuals right to bear arms, both through concealed and open carry, as prescribed under their states regulations.  I do not see the right of a state to ban open or concealed carry without justification measures (background checks/shooting proficency tests/safety instruction).  

    Guns are by no means an absolute deterrent to crime, nor should they be overlooked as part of an individuals right to defend him/her-self.  

    Look at the Canadian Government's problems with gun registration and the ineffectiveness of such action when judged against criminal firearms usage.  Peruse the Force Science Research Center's (institution that explores use of force issues in law-enforcement roles [http://www.forcescience.org/articles/]) findings on criminal weapon choice--in almost all cases, they are choices of what is available from illegal modes on the street.  Recent FBI/DOJ releases show that very few guns used in crimes are obtained legally, the majority were stolen or illegally purchased from a friend or relative.  We spend an inordinate amount of time making gun legislation and far less keeping the offenders behind bars instead of on parole or in "feel-good" programs.  Most offenders of gun violenece in the United States already have a felony criminal record.

    Whew...  I got a bit off track there.  Either way, for my $0.02, as a member of the Law Enforcement community in the United States, a citizen, and a reasonable person, I believe the 2nd Amendment still is a viable part of our Constitution and entirely necessary.  Resonable restrictions to ownership?  Sure.  minimum age, safety information, and right to carry education?  I'm all for it.  Beyond that, an instant background check is reasonable for purchases.  Banning firearms outright?  Reserving rights to select groups/individuals?  Never, that is not the "Spirit of the Laws" to me.  :)

    All the best,



    to Dadler (none / 0) (#75)
    by John B Brown on Sun Mar 11, 2007 at 12:54:48 AM EST
    Only half right; Australia suffers from an increase of all crimes since the removal of arms from society; the criminals are emboldened to act. The example of Japan is meaningless to our society. The low crime rate is a social imperative in Japan.

    Round and round (of ammo) we go (none / 0) (#82)
    by Dadler on Sun Mar 11, 2007 at 12:53:44 PM EST
    And Sweeden's gun rate has more to do with the fact that they have a citizen army that keeps its military weapons at home.  

    Austrailia and Japan are still nations with low crime rates and strict gun control compared to us.  And they more than illustrate the opposite of those countries held up as gun-happy and safe.  Also, you make my point when you talk about it being a social imperitive in Japan.  Every nation has its own history and social conditions.  Those of the United States are NOT conducive, it seems violently obvious, to lowering crime with more guns.  

    We are the most violent first world nation on earth.  With unacceptable social and racial and class divisions.  We shoot each other and those in other countries (through our military empire destroying, er, building) at rates far higher than others.  My point is it is positively irrational to think the unfettered spread of HANDGUNS in the U.S. does not bave a negative impact on, um, GUN VIOLENCE in THIS country.  

    Now, if you personally consider a society whose "stability" is built on fear of getting shot more easily (Taliban Afghanistan anyone?  Apartheid South Africa?  Oh and that little place called...IRAQ??) as something good and where you'd like to live, well, we disagree to a more that slight extent.  The more guns are justified as necessary, the more they will be considered viable options.  Just as the military industrial complex has justified and gin'd up needless war after needless war since Eisenhower warned us half century ago.  

    The gun industry has to create their own market needs, which means they have to create fear and, in essence, violence.

    But listen, relax and fire away, it's still America, and you can still buy guns on every godd*amn corner.  So take a breath and mow 'em down, people.


    Militias (none / 0) (#84)
    by squeaky on Sun Mar 11, 2007 at 01:15:03 PM EST
    Switzerland and it's low gun death rate seems the perfect example

    Funny how many of the pro gun legal minds here go on an on about militias, state militas in particular, as a justification for gun rights.

    Switzerland has a militia which provides regular training. In America state militias are an anacronism. Were there militias today that provided regular training it would be a reasonable argument for the right to have a gun.

    Since almost anyone can have a gun and there is no regular training it no doubt is a danger. Martial training is essential even though a gun is  automatic, killing is as easy as turning on a light.

    Also if the argument is somehow still viable sans militia, then I still do not see why there are restrictions as to what kind of arms one can bear.

    Seems rather arbitrary to me.


    fly the jib! (none / 0) (#88)
    by Fernman on Sun Mar 11, 2007 at 04:14:48 PM EST

    While I agree we seem to have a violent culture in the United States, I fail to see an argument that gun ownership is responsible for this phenomena.  the gun crimes we experience daily are already crimes--how do you propose we change this?  A ban on guns is as effective as say, a ban on marijuana, something that is already banned from illegal usage, and yes, does cause deaths in the United States (mostly traffic casualties).  Is it that you believe a ban or further restriction will remove the market for illegal gun usage?  I have arrested several felons with guns, and none were from a legal source.  I understand your concern; certainly violence is an issue we should all combat, but I see no solution to your argument.  Perhaps I am missing your point and if so please clarify for me.  I am a firm believer in Benjamin Franklin's thought that "Those who would give up their freedom for safety deserve neither."  Are we to legislate away the right to own or carry arms, for an illusion of safety that criminals that already disregard the present laws will have a change of heart?

    Again, I understand the concern, but I see no reason to further regulate the citizen.  Fully-automatic weapons are available only through strict BATF regulation, and all others are illegal to private citizens.  I recommend the readings presented in my previous post about the actual criminal usage statistics of firearms for your consideration.

    All the best,



    FWIW (none / 0) (#89)
    by Fernman on Mon Mar 12, 2007 at 10:57:14 AM EST
    For what it's worth, "Police Magazine" released a survey this issue (March 2007) on gun control.  Of 1500+ respondents:

    The results? Gun control was opposed by 88.2% of the respondents. Those that opposed gun control did so for the following reasons:

    76.5% believe the only law abiding citizens would obey the lay anyway, and 12.7% believe that criminals would know the public was unarmed. 9.2% believe there is already an availability of guns anyway, and 1.6% believe people would just use other weapons instead.

    Out of the 11.8% that support gun control, 36.1% believe that it would help reduce gun crimes. 25.8% believe it would keep guns out of the hands of criminals, and 30.4% believe it would help prevent gun-related accidents.

    Just a note from those who deal with this problem daily.  It's not the guns, it's the people behind them.


    Well that is true but. (none / 0) (#90)
    by Deconstructionist on Mon Mar 12, 2007 at 11:36:53 AM EST
     guns allow some people to be more effective criminals.

      As has been suggested somehwere here by somebody, from a policy standpoint you have the huge problem of there now probably being more guns in private hands than there are adults in this country.

      That is the "base reality." New laws simply making future sale or transfer of gund more difficult won't change that. As there are  obviously more than enough guns out there for every criminal to have at least one and probably a couple of spare to sell or give  to other criminals, it is a fair question to ask if such laws will do any good.

      Even laws prohibiting the continued possession of guns already in private hands might be of limited utility. As suggested, many people will simply keep their guns anyway and a large number of those will not be merely the stubborn ones or the ones making a political statement but also the ones who want guns to use in crime.

      Guns are often very well made machines and last a long time, so even a hundred years from now there would likely be a surfeit of guns for those who really want them and are willing to ignore the law. (That drug prohibiton thing isn't going so well and it it didn't begin with a huge surplus of non-perishable goods extant.)

       I accept all of that and the corollary arguments as true. On the other hand, even given all that there can be benefits to stricter gun control. Fewer accidental shootings amoing the law-abiding population that would obey the law. Less severe consequences from heat of the moment, impulsive crimes-- especially of the domestic violence type. Some, perhaps not huge, additional impediment for the bad guys to obtain guns....


    Typical (none / 0) (#83)
    by ravenshrike on Sun Mar 11, 2007 at 01:01:43 PM EST
    Your argument is utterly irrelevant to my point. A bunch of people have been saying that general gun ownership increases crime. I gave counterexamples. You gave examples that there are in fact areas without general gun ownership that ALSO do not have much crime, although the crime stats in australia have generally been going up ever since the gun ban.

    DC circuit decision (none / 0) (#78)
    by Ghost of Marshall on Sun Mar 11, 2007 at 10:21:27 AM EST
    I haven't read the decision, or the Henderson's dissent, but only reporting on them.  Caveat established.

    First, Miller does not declare a collective right.  It says the right (whatever it is) must be resonably related to the preservation or efficiency of a well-regulated militia.  Justice Roberts was correct, in his Senate hearing, in stating that the SC had dodged the issue.  In fact, individual rights were justified in state constitutions (pre Bill of Rights) by broader goals and principles that were not seen as restricting the right to a collective one.  Check out the Virginia Declaration of Rights (Madison sat on the committee that wrote that one up, too).  That is to say, it is not implausible that an individual right was declared in service of a militia under civil control.  

    The fear was expressed by both Henry and Mason, that the federal government's power to arm the militia would be claimed as an exclusive power, and could be used to disarm the state militia's.  Madison and Marshall disputed this, but the Second could be seen as a response to this worry.  Of course, this doesn't dictate an individual right, only makes it seem plausible (it could be, consistent with this view, a collective right, exercised by the people through their state legislatures).

    The language of the US Constitution also suggests some interpretations.  While the federal government has the power to raise armies, the Constitution speaks of the militias as pre-existing bodies (as indeed they were, just as the states, for the most part, had constitutions and militias that predated the US Constitution).  Indeed, as Rufus King said (as a member reporting the language out of committee, in response to a question at the Philadelphia Convention), the federal power to provide for organizing the militia was restricted to deciding what portion were to be officers, what portion enlisted.  

    Each state decided it's own membership, and indeed it's own rules for exclusion from serving.  These persist to the current day, and have not been overruled by federal law.

    As Madison made clear (in Philadelphia) the power to provide for arming extended to determing who would provide the arms, and what arms were to be provided.  Thus the first federal militia act had all males of military age to provide their own weapons (as specified), and with the War of 1812, the federal legislature commanded states to arm their militias.

    It seems to me that Silberman is wrong on this point.  The idea that carrying arms is subsumed under bearing arms doesn't stand up to analysis.  There is a body of loose usage, but it is the smallest part of usage.  To bear arms is to serve, not to carry (thus the first part of the Second Amendment, mentioning the militia).

    Just reacting from the news reports, it strikes me that Henderson has a point.  Militias were creatures of the states, and the guarantee of the Second Amendment does not extend beyond the states.  The SC has never incorporated the Second in the Fourteenth.

    This does not resolve the problem of individual versus collective.  Both seem plausible.  The fulcrum point, I think, is that the Second prohibits the federal government from diarming state militias, whose composition was a state matter.

    Interstingly, there seem to be only two statements of interpretation that were more or less contemporaneous with the adoption of the Second.  One was by Tench Coxe.  The other was by William Rawle.  Both endorsed the individual rights view.  And both had both legal and real world experience relating to the matter.

    Tench Coxe sold arms to the militia, came from a distinguished legal family, and indeed had some command of the law himself.  Rawle was offered the position of Washington's first Attorney-General of the US, but turned it down.  He was Quaker, who prosecuted the malefactors of the Whiskey Rebellion.  He taught law at Pennsylvania, and authored the standard legal text of the day.

    Interesting that with his background, he plumped for an individual right.    

    Miller (none / 0) (#91)
    by JoeSlobonavich on Mon Mar 12, 2007 at 11:58:35 AM EST

    [Miller] says the right (whatever it is) must be resonably related to the preservation or efficiency of a well-regulated militia.

    Miller actually says this:
    With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

    People who want to deny an individual right read this as unambiguously limiting the right itself to protecting only that which serves to assure the continuation and render possible the effectiveness of state-organized militia.

    People who want to enshrine an individual right, read the word "interpret" as "resolve ambiguities in the text," so they say that the unambiguos parts such as "the right of the people" clearly mean it's an individual right, but terms open to interpretation (such as "arms") must be read in a way consistent with assuring the continuation and render possible the effectiveness of the militia.

    Anyone who says that the D.C. Circuit was "ignoring the SCOTUS' opinion in Miller" either hasn't read Parker v. D.C., or is deliberately trying to deceive others that haven't read it, because the opinion clearly lays out its rationale for interpreting Miller as it did.

    To be sure, as the District argues, the Miller Court did draw
    upon the prefatory clause to interpret the term "Arms" in the
    operative clause. As we note below, interpreting "Arms" in
    light of the Second Amendment's militia purpose makes sense
    because "Arms" is an open-ended term that appears but once in
    the Constitution and Bill of Rights. But Miller does not
    command that we limit perfectly sensible constitutional text
    such as "the right of the people" in a manner inconsistent with
    other constitutional provisions. Similarly, the Second
    Amendment's use of "keep" does not need to be recast in
    artificially military terms in order to conform to Miller.

    Maybe we were supposed to be using some alternative meaning of "ignore?"

    Guys (none / 0) (#93)
    by Deconstructionist on Mon Mar 12, 2007 at 12:40:19 PM EST
      The terminology  "collective right" is of more recent coinage but that doesn't mean that Miller does not stand in support of the doctrine.

      I didn't say the court here "ignored" Miller, I said, in so many words, that the DC Court simply explained away what appears obvious and fundamental repudiation of Miller's reasoning and  rationales and a conflict with Miller's holding because it is a lower court and knows it is supposed to apply stare decisis. Instead, it appears that at least the two who are panel majority want to get the whole ball of wax up to the Supreme Court so the one court with actual power to do so can revisit miller and address it head on.



    Coxe and Rawle (none / 0) (#92)
    by JoeSlobonavich on Mon Mar 12, 2007 at 12:16:27 PM EST
    Interstingly, there seem to be only two statements of interpretation that were more or less contemporaneous with the adoption of the Second.  One was by Tench Coxe.  The other was by William Rawle.  Both endorsed the individual rights view.  And both had both legal and real world experience relating to the matter.

    Coxe spoke of the right being individual, for purposes of self-defense against a tyrannical government, but he made no mention of service in a state-organized militia.
    As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

    Rawle came right out and said that the second amendment protects individuals against infringement of their right to keep and bear arms by either the federal government or the states.
    The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

    Rawle also specifically rejects that the right of the people to keep and bear arms protected by the second amendment is limited to the particular purpose of preserving the states' right to have militia.
    In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, "suitable to their conditions, and as allowed by law." [emphasis added]

    second bite (none / 0) (#94)
    by Ghost of Marshall on Tue Mar 13, 2007 at 04:01:16 AM EST
    A few thoughts, after having read the decision and the Henderson's dissent.

    First, if you read the Virginia Declaration of Rights, you will notice a curious structure to some of the rights.  They are stated in the form of a chain of clauses, connected and separated by semi-colons.  They proceed, on occasion, from individual rights, through a chain to sometimes very specific though general principles.  The arms amendment, for instance (if memory serves), ends in a statement that the military must be subordinate to the civil authority.

    Now nobody with any sense would claim this was a statement of the scope of the right  --  that the right to arms enjoyed only the scope of maintaining the military subordinate to the civil.  The statement is really an argument, proceeding through a chain of justifying reasons, to the one most felt palatable politically.  Madison served on the committee that drew up these rights.

    Turning to the Second Amendment, the first clause should be read as a justifying clause, not a statement of scope.  Nobody suggests that the right was limited in scope to maintaining a free state  --  the militia served as a police force too.

    Secondly, Silberman (for whom I have great respect), simply does not have a grasp of the specific meaning of 'arms' in late 18th century usage.  He views it as an open-ended term, cited Aymette as meaning weapons in general, and then presupposes (nearly) an individualist interpretation to suggest that it should be read as weapons for individuals.

    This is wrong.  'Arms' were already, by the very meaning of the word, restricted to weapons of war suitable to individuals (check out the 1797 definition of the OED).  In fact, check out the Articles of Confederation, which opposes arms to field pieces and to camp equipage.

    'Arms' derives from the etymological root 'ar' which is to join or fit closely to (check out the Oxford dictionary devoted to etymology).  Arma was contrasted with things that were projected, like the tela (a net).  Arma were weapons offensive and defensive, joined to the body of an individual, for close combat with individuals.  It particularly applied to shields (see Virgil).  It is a mass term.

    'Arms' suggests an individual right  --  or (less plausibly) the right of the states to only provide weapons for the individual. The confusion comes from 'arming', which was so loosely employed to include all equipping and provisionally (a metaphorical meaning, as in everything necessary to a purpose  --  also see the OED).

    For a wholly fanciful contortion of the etymology, see Wills' article in the 1996 (or was it 1995?) New York Review of Books.  He goes to a full verb form  --  a verb for "to fit out", which he translates as "equip".  From this he reads the meaning of a full verb form back into the etymological root (ar), and then brings it forward in time to inform the use of 'arms' in the Second.

    True, the meaning was stable (as opposed to its extension), but the meaning he assigns it is wrong, and is based on an entirely fallacious etymology, employing a truly fanciful technique.

    So, the use of 'arms' in the Second suggests an individual right.

    Silberman is also wrong in putting the loose usage of 'bear arms' on the same level as the strict usage.  'Bear arms' just means the right to serve in the militia.  This is supported by simultaneous colonial statutes declaring the duty to bear arms, and prohibiting the carrying of arms.  

    That is, the federal government could not reach into the state power to determine the make-up of the militia, thereby creating a force responsive to a temporary federal majority.  This is a protection against a select militia of Federalists.

    The right to "keep" is just that  --  an individual right to possess.  Those are the twin rights.  An individual right to serve in the militia, and an individual to possess those weapons used by individuals severally (not artillery).  This accords with Jefferson's draft for the Virginia Constitution.  He certainly was not declaring an inescapably individual right to possess artillery.

    On the subject of State, Silberman errs again.  It is jejeune to simply read 'State' as synonymous with 'country', based on the presence of the latter in Madison's first proposal.  First, there were no committe records back then to establish a legislative history.  Secondly, Madison, in a letter to one of the Nicolas brothers, stated that some of the changes were for the worse (without specifying which).

    One of the supposed fears of the Antifederalists, is that the state militia would be turned into a national force and marched off again and again across the country, to put down local problems (Mason expressed this point, in particular).  The more effective a force a state militia might be, the more likely that state would be so burdened.  The change to "State" in the Second was probably well-considered, and meant to pacify the fears of Antifederalists.  The "State" of the Second, is the same State as the rest of the Constitution.  Henderson is right.

    I think the Second declares an individual right (against the federal government, but not necessarily the state) to serve in the militia, and to keep individual weapons.

    This brings me to my last point.  In an effort to strip the Second, many historians today have overly denigrated the role of the militia in the War of Independence.  Their abilties were mixed.  That was a result of the fact that they were not in the field for long periods.  The standard histories of the Roman army make clear that that the militia armies of the Republic were mediocre in their first few battles also.  They however, stayed in the field, and climbed the learning curve.  So much so, that Polybius attributed the entire success of the Roman enterprise to the fact that they relied on militia.

    This brings up an historiographical weakness.  Modern historians have a fondness for turning point battles.  There were few if any such battles where the militia provided a decisive contribution.

    But the turning point of the Revolution did not come at Saratoga.  The turning point came with Forage War of New Jersey, which preceded Saratoga.  This was carried out by the milita of New Jersey independently of federal direction.  Bancroft recognized it.  David Hackett Fischer now recognizes it too.  Unfortunately, the demands of pedagogy and politics have obscured this fact, in preference for a continental victory at Saratoga.

    third bite at the Second (none / 0) (#95)
    by Ghost of Marshall on Tue Mar 13, 2007 at 12:21:49 PM EST
    Having thought it over again, the first clause can't be merely justicatory and at the same time provide a scope limitation to the States.  So maybe Henderson is wrong, after all.  The mention of State in the Second is simply the most politically attractive justification (in the eyes of the Antifederalists), but nothing more.

    Secondly, the Miller decision is so badly written it doesn't make clear that any facts were decided vis a vis the military status of a sawed-off shotgun.  The statement of McReynolds is a negative one (pregnantly so), which he then follows up with a statement that the court can't take judicial notice either.  If the facts were decided, why is judicial notice raised?  McReynolds actually writes that the weapon can't be determined to be military based on such evidence before the court, but doesn't say the court has determined it isn't of military use (and then passes up the chance to decide the issue by judicial notice).  Seems a plausible interpretation that the court felt the evidentiary base was not sufficiently developed to make a factual finding.