The right to own firearms in light of the Virgina Tech tragedy

[Plane]

whether it is a "militia right" or a "personal right,"

May the Second admendment be construed as protection of the right to form militias?



May the States compell membership in militias?

[Universe Prince]

First, the Second Amendment is elusive because throughout it 225+ year history, the matter whether it is a "militia right" or a "personal right," seemingly fundamental concerns, has not been authoritatively determined. And then, as they say, let the party begin. Secondly, Second Amendment litigation has been, shall we say, restrained, leaving intact various state and federal regimes of control openly at odds with the literalist orientation you favor. Indeed, it is so elusive that it has yet to be determined whether the states are even covered by the provision, or just the federal government.

I don't find grasping the meaning of the amendment to be that difficult. That others play semantic games doesn't impress me. I see nothing that makes it less applicable to the states than, say, the Fourth or Fifth Amendments, and I don't recall anyone suggesting those might not be applicable to the states, but maybe I missed that debate.

As for JS, he and I have established a pattern of fending for ourselves in our sharp and lively exchanges. Your overture in that regard is piling on, and unwelcome.

I'll keep that in mind, however, I make no apologies.

[Universe Prince]

P.S.-The Bill of Rights isn't quite that old yet.

[domer]

There's no edge to this post, Prince. The ten amendments of the Bill of Rights applied at signing only to the federal government, by their terms and by context. When the Fourteenth Amendment was passed in Reconstruction, one of its most potent clauses was the Due Process Clause, and the Fourteenth Amendment explicitly applied to the states. There ensued a long period of "giving content" to the Due Process Clause, using phrases like "necessary to an ordered liberty" and the like. Then, through a process known as "incorporation," to make interpretation more reliable, the Supreme Court "incorporated" one right (or amendment) and another into the 14th's Due Process Clause in a series of rulings that made most provisions of the Bill of Rights applicable to the states, with the notable exception of the Second Amendment. (There could be others, like the Third Amendment?)

[Universe Prince]

The ten amendments of the Bill of Rights applied at signing only to the federal government, by their terms and by context.

So I've heard. And I'd find that an acceptable position to take. But the other amendments have been made to apply to the states, and in light of that I see no reason why the Second Amendment should not also apply to the states. It seems ridiculous to pick and choose and say these amendments apply to the states but that one does not. I realize that is what has essentially happened, but I don't happen to agree with it. Maybe you do, and that's fine. While legal decisions about the Second Amendment might be elusive, the amendment itself, imo, is not.

[larry]

The ten amendments of the Bill of Rights applied at signing only to the federal government, by their terms and by context.

What? Lets read this again.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

This says what the state can do and what the federal government cannot restrict. At signing, the second amendment applied to the state, the states militias and the people of the state, as well as the Federal government.

[domer]

"State" can refer to a nation, as in statesmanship, but more importantly, the language restricts federal government action, not state action, since under your interpretation, it is the states' militias that are being protected. Note that there is no restriction on a state's treatment (or abolition) of its own militias.

[sirs]

"State" can refer to a nation, as in statesmanship, but more importantly, the language restricts federal government action, not state action, since under your interpretation, it is the states' militias that are being protected. Note that there is no restriction on a state's treatment (or abolition) of its own militias.

...the right of the people to keep and bear arms, shall not be infringed

[domer]

Well, Sirs, there's a raging debate til this day on whether the "bear arms" language applies to individuals (a personal right) or whether it is derived, by the structure of the sentence itself, among other reasons, from the first-mentioned necessity of militias. I come down, without further study, on the "personal right" side. Yet, and this is the main point, so far as I know, only the federal government (yes, after all these years) is restricted by the amendment, and so far (I think) states are not.

[domer]

How's this for a compromise: Require a psychiatric exam or the presentation of a "certificate of sanity" from three prominent members of the community, in addition to existing restrictions, before an individual can purchase a firearm?

[sirs]

Well, Sirs, there's a raging debate til this day on whether the "bear arms" language applies to individuals (a personal right) or whether it is derived, by the structure of the sentence itself, among other reasons, from the first-mentioned necessity of militias. I come down, without further study, on the "personal right" side. Yet, and this is the main point, so far as I know, only the federal government (yes, after all these years) is restricted by the amendment, and so far (I think) states are not.

Legal sematics aside, the wording can't be made any clearer.  The Founders made sure of that.  It's the legal profession & gun control advocates that are apparently doing their best to muddy the language up

[Amianthus]

Aside from concerns about mustering a militia, a now-defunct factor,

I suggest you read 10 USC 311.

[sirs]

How's this for a compromise: Require a psychiatric exam or the presentation of a "certificate of sanity" from three prominent members of the community, in addition to existing restrictions, before an individual can purchase a firearm?

Since we're gonna stamp all over the 2nd amendment, let's not stop there.  How about letters of authenticity from reputable News Paper editors, from reputable News Agencies, before one can criticize the Government.  And of course, we'll need specific certifications from building engineers and local Law enforcement heads to approve a residence free of being searched.  How's that for a compromise?





Precisely.  Just as yours is

[larry]

since under your interpretation, it is the states' militias that are being protected.

That was true until the war between the states. As a result of the Southern Militias being organized to go to war against the Northern Militias, the federal government created what we now call the National Guard. That resolve the issue of the militias, creating joint control by state and federal authority, but the new thinking at the time did not move to take guns away from the individuals of the states. The fact that Americas have been permitted to own firearms clearly show what the intent of the government has always been. For anyone to say the law did not intend for citizens to own firearms is ridiculous.

[domer]

Nice try, Larry, but you're arguing with a straw man, not me. Oh, and Sirs, I'm deadly serious about a psychiatric exam or a testament of good character and sound mind as a prerequisite to gun ownership.