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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsHow come
hardly anyone who has a gun fills all or any of the requirements of the Constitution. Am not familiar with the 2nd amendment, but doesn't it say that
(1) A well-regulated ..... where are US gun owners well regulated,
and
(2) they belong to a militia (that is well-regulared), or
(3) Aren't these guides as to who can own and use guns?
What don't I understand? Seriously.
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ileus
(15,396 posts)Wonder why the Second is the only amendment that doesn't apply to individual citizens???
fadedrose
(10,044 posts)That's why I'm asking....
How do they get an exemption from (1) and (2) above?
Statistical
(19,264 posts)Well regulated =/= regulations. Is a well regulated timepiece mean that it is subject to regulations? Of course not. Well regulated circa 1700s means functional, effective, working as expected.
The 1709 Oxford Dictionary contained this sentence
"If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
Does this mean that liberal education leads to laws being passed which mandate appetites? I mean it doesn't even make sense to use regulations/laws as a substitute for well regulated as used at the founding of the country. By the late 1800s the usage of that term had fallen out of favor but the meaning is based on the context at the time it was written. Definitions change but that doesn't revise the original meaning.
The right is to the people, all people BECAUSE in order to have a functional militia the PEOPLE must have access and proficiency with firearms. Remember the British troops under order of the crown had just seized firearms from the colonists in an attempt to disarm them and prevent a rebellion. Hell the "shot which was heard round the world" occurred in an unplanned skirmish at Lexington in response to British troops marching to seize gunpowder.
In modern english the second would be written as:
The right of the people to keep and bear arms shall not be infringed in order to ensure an effective militia.
The second can't be viewed in isolation.
Prior to the revolutionary war the colonists (British citizens) believed they had certain rights, rights which could not be taken away by Parliament or even the King. Among those were the right to representation, the right to be secure from warantless searches, the right to a trial by a jury of their peers, the right to assemble in protest, the right to publish the news, and yes the right to keep firearms. The British government violated all those rights (at least in the eyes of the colonists) and it lead to a long and bloody war. These weren't brand new concepts but rather EXISTING RIGHTS the colonists believed were already theirs and which had been trampled. To ensure the new government wouldn't end up just as bad as the old one they wrote down restrictions on the government to draw a line in the sand. The Bill of Rights doesn't "grant rights" it protects the government from trampling on rights the founders believed already existed.
Spider Jerusalem
(21,786 posts)Regardless of what the intent may have been in 1790 when it was written. The need for a "well-regulated militia" has been obviated by the existence of a standing army and the National Guard. The total strength of the regular United States Army at the time of the amendment? 800 men. In a fledgling country that shared land borders with three potentially hostile European colonial powers and with numerous potentially hostile native tribes. Whatever the justifications for a militia then, they don't apply NOW.
branford
(4,462 posts)you are certainly free to lobby for its repeal for whatever reason. The procedures are clearly explained in the Constitution. I believe you understand the chances of that occurring hover somewhere around zero.
However, the amendment does not disappear, literally or figuratively, because you or others don't like it or believe it necessary or prudent. There is no "anachronism" exception in constitutional jurisprudence.
The arguments over the 2A are also not particularly relevant. There are many gun control proposals that, depending on specifics, would generally be constitutional, including universal background checks. These policies have not been enacted into law because they cannot garner sufficient support in Congress or the majority of statehouses. The lack of gun control is not the result of the 2A (or its various state analogs), but rather because of old fashioned democracy.
Spider Jerusalem
(21,786 posts)What purpose does a citizen militia serve in a country with 2.5 million active-duty and reserve military? The US isn't Switzerland. (And the Swiss citizen army's military weapons are subject to significant restrictions.) And the lack of gun control is the result of tireless lobbying by the NRA and gun manufacturers. That's the reason the CDC doesn't study gun violence; a Republican-controlled Congress blocked funding, because of the NRA. The ruling in Heller v DC? Also the result of a tireless campaign of NRA lobbying , over decades. The lack of gun control is the direct result of NRA lobbying to get their novel interpretation of the Second Amendment recognised by a right-wing Supreme Court.
branford
(4,462 posts)The 2A is the law of the land unless and until it is repealed.
The NRA, no matter your feelings about the organization, has a 1A right to lobby in favor of gun rights and in opposition to gun control and engage in any other lawful conduct. Rather than lament their clear success (although Heller and McDonald were the result of the Second Amendment Foundation, not the NRA), why not try mimicking their successful grassroots legal and electoral strategies. Gun control groups have the largesse of billionaires, all they need is the votes.
You are also certainly entitled to agree with perspective of the New Yorker and Jeffery Toobin concerning the 2A, but they hardly constitute the whole body of relevant scholarship. Try reading the individual rights analysis of noted liberal scholars such as Laurence Tribe at Harvard, or better yet, read the controlling majority decisions in Heller and McDonald and the included citations.
Simply, your disagreement with the nature and purpose of the 2A, the controlling and established Supreme Court Decisions, the wholly legal lobbying efforts of fellow Americans, or the electoral will of the populace expressed through our elected representatives, does not change the reality of the 2A or gun rights in the USA.
clarice
(5,504 posts)HassleCat
(6,409 posts)Long ago, in the early 1900s I think, the courts decided the "militia" was self-forming and self-regulating. Although this seems like an irresponsible and dangerous notion, it's the law, and the 2nd Amendment is interpreted this way in almost every case. Yes, it makes a joke of the term "well regulated," because it really means "free to do whatever they want." But that's the way it stands.
Taitertots
(7,745 posts)So does the President.
fadedrose
(10,044 posts)and those words are English. I'm in good company to be compared with Obama, even with an opposite view.
But seriously, how do they get around (1) and (2)? Is there an asterick somewhere at the 2nd amendment that says, "don't pay any attention to this" at the end of the entire list of amendments. If there is an amendment to the 2nd amendment, what does it say?
I find it hard to believe that the founding fathers who were smart enough to compose the worthy Constitution didn't know anyone who was insane and shouldn't have a gun, or crooked enough to steal one... (We all know the Supreme Court is screwed up).
Statistical
(19,264 posts)That is just a strawman but the rationale for those restrictions has nothing to do with your interpretation of the Constitution.
The second protects and individual right. Period. However like all rights it can be limited as long as it complies with strict scrutiny. There is no asterisk in the first amendment but you can be prosecution for hate speech, libel, or crying fire in a crowded theater.
The Bill of Rights doesn't grant rights.
The Bill of Rights doesn't restrict the people.
The Bill of Rights is a restriction on the government. A restriction which the founders hoped would be sufficient to prevent tyranny and the need for another revolution.
All the rights in the BoR are concepts that prior to the revolutionary war the colonists would be in near unanimous agreement were theirs by birthright and couldn't be taken away ... and then they were. The resulting war was long and bloody and in the hopes that the new government could be restricted enough to prevent that from happening again the Bill of Rights was ratified.
fadedrose
(10,044 posts)it only lists rights that the government cannot restrict.
But the way the 2nd Amendment of the Bill of Rights is listed, it has its own restrictions, ie, self-regulation and militias where guns are concerned.
True, we don't have militias anymore because of the Army. I'd say the National Guard is the closest thing we have to a militia because citizens are often called up in disasters, riots, etc., and then the guard goes home and resumes thieir teaching or factory jobs. Sometimes people are deputized to search forests, mountains, for lost persons or criminals... These people in these positions could own and enjoy their guns with thanks to the second amendment...
The rights are a restriction on rights the government that gave them. This is like Mommy telling Junior he can watch TV or eat candy when she's the one who made the rule of no TV or no candy. But only Mommy can change these rules, just as the government who gave the rights can revoke them - if Junior is rowdy and doesn't deserve the right without restriction.
And the SC and Obama can put that in their pipes and blow smoke at me.
beevul
(12,194 posts)Not being a smart ass, But can you clarify that? I'm unclear what you mean.
branford
(4,462 posts)I believe you might be confusing "hate speech" with "hate crime," the latter really being little more than an effective sentencing enhancement when someone commits a more "standard" criminal act against someone as a result of their membership in a protected class. The government certainly cannot criminalize offensive speech, no matter how vile or disgusting (there's a VERY narrow exception for incitement to imminent violence).
I earnestly agree with the rest of your post.
Statistical
(19,264 posts)I was thinking of incitement to imminent violence but for the sake of brevity wasn't clear enough.
clarice
(5,504 posts)
petronius
(26,602 posts)this goofy analogy a while back:
Amendment XYZ: Well-nourished children being essential for the productivity of a modern state, the right of the people to plant and maintain backyard gardens shall not be infringed.
As a speaker/reader/understander of the English language, how would you answer the following:
- Is the right to plant and maintain gardens limited to those people who have children, or even to children themselves?
- Is the right to garden protected only when that garden is being specifically used for the feeding of children?
- Is the right to garden one which is held by individuals, or is it a right of the modern state (to be exercised through state-administered gardening programs, perhaps)?
- If a state-run system for the nourishment of children came into being (a really effective school lunch program for example), would the right to backyard gardening then evaporate?
- Does the right to plant and maintain a backyard garden come into being with Amendment XYZ, or does the phrasing of XYZ acknowledge an existing right and provide one (perhaps of many) reason to prevent infringement on that right?
Reverting to 2A, it seems to me that on its face it describes a right held by individuals, not predicated on membership in anything, and provides a/the reason why that right should be protected from government interference.
I'm not a lawyer or Constitutional scholar, but recent USSC decisions seem to support that 'individual right' interpretation (although the militia clause helps inform what is(n't) 'infringement' and how much restriction is allowed)...
clarice
(5,504 posts)
sarisataka
(18,655 posts)(1) Federal Firearms Regulations Reference Guide https://www.atf.gov/file/58686/download sums many but not all gun laws. In addition each state has its own laws.
(2) Militia Act 1903 pdf download http://www.jstor.org/stable/25119439?seq=1#page_scan_tab_contents
(3) Those fulfill the purpose of the Second Amendment to the satisfaction of the government at this time. Courts have ruled that gun ownership is not limited to only these criteria.
beevul
(12,194 posts)Because the things you think are requirements of the constitution are not and never were 'requirements' in the first place.
Amendment 2 restricts only government.
The bill of rights does not authorize anything, and is in fact a laundry list of restrictions on government.
If you read it differently than that, you're reading it wrong.
clarice
(5,504 posts)The real question is, how do we stop CRIMINALS from getting guns?
X_Digger
(18,585 posts)Apparently, english is what you're having a hard time understanding.
Juicy_Bellows
(2,427 posts)Anachronistic but people love them some guns. I think we'd have more luck putting solar panels on every building than we would getting rid of 10% of guns in circulation. It's woven into the American Spirit - cowboys and all that horseshit.
