The second amendment

Apologies if I'm being pedantic, but I couldn't help noticing that in discussing the second amendment, nobody found it necessary to mention its text yet. So here it is:

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Amendment II

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.

Observation #1: the founding fathers had a weakness for commas, and their text suffers from an overdose of them. As I read the sentence, the commas after "miltia" and "arms" ought not be in there.

Observation #2: The main clause of the sentence reads "the right of the people to keep and bear arms, shall not be infringed." I am not a lawyer, but as an interested layman I read this main clause as saying that the people have a right to hold and bear arms. The relative clause preceding it merely gives a reason why this right should not be infringed. It doesn't say there are no other reasons why it should not be infringed, or that the right itself ceases to exist in the absence of the militia argument.

Observation #3: From reading the amendment itself, it isn't clear to me who exactly is meant by "the people". Did the founding fathers mean "individual people" or "the people" as a collective? The bill of rights seems inconclusive about it. On the one hand, it talks about "the right of the people peacibly to assemble", "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures", and other rights that clearly apply to individuals. On the other hand, it appears to make a distinction between "persons" and "people". Why bother with this distinction if there's no difference in what the words mean?

Does any of you know constitutional law well enough to explain what the difference between a "person" and "the people" is in the context of the constitution?

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emclean wrote:

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emclean wrote:
Would it be ok for your mayor to restrict use of the term "migs field"?

We don't get too many "MIGs" flying around here. You must mean "Meigs" Field.

so you would be ok with it, spelling Mistakes not withstanding.

Actually, there is no "Meigs Field" anymore. The mayor bulldozed the runway last year.

More to the point, it's a silly question, emclean, and it's simply not comparable to anything arising under the Second Amendment.

emclean wrote:

YOUR state Constution.

Well, how 'bout that!

Of course, the Illinois Constitution's guarantee of the right to keep and bear arms is sufficiently flexible to allow municipalities such as Morton Grove to ban the ownership of handguns entirely.

emclean wrote:

can you explain why my semi-automatic .22 is more dangerous than a 12Ga shotgun that will fire as fart as I pump?

When did I ever offer an opinion as to the comparative lethality of any weapons?

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Thomas wrote:

Observation #1: the founding fathers had a weakness for commas, and their text suffers from an overdose of them. As I read the sentence, the commas after "miltia" and "arms" ought not be in there.

I think that's correct.

Thomas wrote:

Observation #2: The main clause of the sentence reads "the right of the people to keep and bear arms, shall not be infringed." I am not a lawyer, but as an interested layman I read this main clause as saying that the people have a right to hold and bear arms. The relative clause preceding it merely gives a reason why this right should not be infringed. It doesn't say there are no other reasons why it should not be infringed, or that the right itself ceases to exist in the absence of the militia argument.

Statutes (including constitutional amendments) are to be read as a whole, giving meaning to all of their terms. The Supreme Court has interpreted the dependent clause in the Second Amendment as limiting the scope of the right granted in the independent clause (and that, I would maintain, is an eminently reasonable construction). As the Court noted in United States v. Miller: "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."

Thomas wrote:

Observation #3: From reading the amendment itself, it isn't clear to me who exactly is meant by "the people". Did the founding fathers mean "individual people" or "the people" as a collective? The bill of rights seems inconclusive about it. On the one hand, it talks about "the right of the people peacibly to assemble", "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures", and other rights that clearly apply to individuals. On the other hand, it appears to make a distinction between "persons" and "people". Why bother with this distinction if there's no difference in what the words mean?

See Observation #1, above. The drafters were not always scrupulously consistent with regard to stylistic matters.

Thomas wrote:

Does any of you know constitutional law well enough to explain what the difference between a "person" and "the people" is in the context of the constitution?

I don't believe there is a difference.

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Ok, I’ll go straight to the point. You said that the states can limit our rights in whys the federal government can’t, or did I misunderstand?

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But none of that has anything to do with the Second Amendment. The amendment merely limits federal power over firearms; it does nothing to limit the authority of states in this area.

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emclean wrote:
can you explain why my semi-automatic .22 is more dangerous than a 12Ga shotgun that will fire as fart as I pump?

When did I ever offer an opinion as to the comparative lethality of any weapons?

Sorry I assumed a reason for banning all semi-auto. I should have asked why do you want to ban all semi-auto, and nor other repeating firearms?

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Thank you, Joe!

I have two more questions. For one, you said earlier that the Second Amendment only constrains the federal government. If true, I would expect this to apply to every right granted in the Bill of Rights. However, if the state of Louisiana declared itself a theocracy and limited free speech to speech worshipping the Republican party, I can't help feeling that this would violate the Louisianans' First Amendment rights. I know this is a contrieved and hopelessly exaggerated example. But as a matter of consistency, if you are right, the Supreme Court would have to rule that the First Amendment only constrains the federal government, so Louisiana can do whatever it wants speechwise and religionwise. Is this really the case? And if not, what's so different between the First Amendment and the Second Amendment?

Second question: As we know from fourteenth amendment cases (Segregation, Slaughterhouse cases), the Supreme Court's opinion of what's obvious can change over time. Can you tell me if the Supreme Court changed its opinion before or after United States vs. Miller, whether there have been significant minority opinions in support of an individual right to hold and bear arms, and so forth? I note that there appear to have been much fewer Second Amendment Cases than First Amendment cases before the Supreme Court, suggesting that the Second Amendment is much less controversial among judges and juries than it is in the public debate.

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joefromchicago wrote:

cjhsa wrote:
Obviously Joe from Chi-town has never been hunting.

Quite right. It's not that I have any philosophical or moral objections to killing God's creatures; indeed, I am all in favor of killing more of the tastier members of the animal kingdom. No, it's just that I hate being outdoors. If God had intended man to spend all day out in the wilderness, stalking and killing prey, He wouldn't have invented HVAC systems and pizza delivery.

cjhsa wrote:
Ban semi-autos? For what reason? That is an absurd statement even coming from as far left as Joe.

I didn't know I was located on the far left.

cjhsa wrote:
People drown every day. I think we should ban water.

It'll never happen. Too many Republicans own water-bottling companies.

cjhsa wrote:
This is my shotgun. Joe would make this illegal (because it's a semo-auto). This design has been around for 100 years.

Sadly, yes, cjhsa, you will have to give up your beloved shotgun. And I would consider it an honor, as well as a pleasure, to pry it from your cold, dead hands.

ROTFLMFAO!!!!!!!!!!!!!!!!!

What a waste of bandwidth.

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Thomas wrote:

I have two more questions. For one, you said earlier that the Second Amendment only constrains the federal government. If true, I would expect this to apply to every right granted in the Bill of Rights. However, if the state of Louisiana declared itself a theocracy and limited free speech to speech worshipping the Republican party, I can't help feeling that this would violate the Louisianans' First Amendment rights. I know this is a contrieved and hopelessly exaggerated example. But as a matter of consistency, if you are right, the Supreme Court would have to rule that the First Amendment only constrains the federal government, so Louisiana can do whatever it wants speechwise and religionwise. Is this really the case? And if not, what's so different between the First Amendment and the Second Amendment?

The difference is that the First Amendment has been "incorporated" into the Fourteenth Amendment, whereas the Second Amendment has not (for a brief explanation of "incorporation," see this website). Thus, the rights guaranteed by the First Amendment bind the states as well as the federal government, while the rights guaranteed by the Second Amendment remain a limitation only on federal power.

Thomas wrote:

Second question: As we know from fourteenth amendment cases (Segregation, Slaughterhouse cases), the Supreme Court's opinion of what's obvious can change over time. Can you tell me if the Supreme Court changed its opinion before or after United States vs. Miller, whether there have been significant minority opinions in support of an individual right to hold and bear arms, and so forth? I note that there appear to have been much fewer Second Amendment Cases than First Amendment cases before the Supreme Court, suggesting that the Second Amendment is much less controversial among judges and juries than it is in the public debate.

A useful discussion of Second Amendment jurisprudence can be found at Findlaw. In short, the Supreme Court has not dealt directly with the amendment since 1943. It had the opportunity to review the appellate court's decision in the Morton Grove handgun-ban case (which I mentioned above) but it declined. There is no indication that the court is ready to reverse the position it adopted in 1886, when it held that the Second Amendment limits only the federal government's power.

EDIT: The Fifth Circuit Court of Appeals, in 2001, held that the Second Amendment guarantees private rights to bear arms; a 2002 decision by the Ninth Circuit held the exact opposite. Not surprisingly, the Fifth Circuit is one of the most conservative circuits; the Ninth is by far the most liberal. I don't know if the U.S. Supreme Court has taken either of these cases for review.

United States v. Emerson (Fifth Circuit 2001)

Silveira v. Lockyer (Ninth Circuit 2002) (.pdf file)

Findlaw article on Second Amendment jurisprudence

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emclean wrote:

Ok, I'll go straight to the point. You said that the states can limit our rights in whys the federal government can't, or did I misunderstand?

In the area of firearm regulation, that is largely correct.

emclean wrote:

Sorry I assumed a reason for banning all semi-auto. I should have asked why do you want to ban all semi-auto, and nor other repeating firearms?

One step at a time, emclean, one step at a time.

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Quote:

In the area of firearm regulation, that is largely correct.

what makes the right to bear arms different from freedom of speech. why can one be baned, and the other not?

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Joe -- Thanks for the links, and for clarifying the issue for me. I think I get the picture now.

emclan -- Joe answered your question in his latest response to me. Maybe you overlooked it.

-- T.

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Thomas, you were correct, I had missed it, thank you.

Allow me to restate the question. What makes the right to bear arms different from not having to quarter the National Guard? Or do you feel it would be "OK" for a guards man to come to your door and demand food and a room for the night?

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Joe, the link to the FindLaw columnists were most instructive, and I'll spend much of my websurfing time reading their articles. Thanks again for pointing me to this cornucopia of legal scholarship.

But -- you knew there would be a 'but', right? -- the very columnist who wrote the piece on the second amendment also undermines your point about incorporation. He appears to believe that the fourteenth amendment incorporates the whole Bill of Rights.

In a FindLaw article on Roe vs. Wade, Michael C. Dorf wrote:

The Fourteenth Amendment reads in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As many scholars have argued, this language is most naturally understood to provide the people with the same protection against state infringement of rights as they enjoy against federal infringement. In other words, the Privileges or Immunities Clause, in legal parlance, "incorporates" the Bill of Rights, including the Ninth Amendment.

Full Article

I note that this view opposes that in your first link to the incorporation debate, so it seems that there's still room for honest disagreement. Conservatives, unlike in other political matters, don't seem to be totally out of there on gun rights. Reasonable can believe that the right to hold and bear arms is an individual one like the others in the Bill of rights, and they can also believe that the fourteenth amendment incorporates the whole Bill of rights, meaning that the first and the second amendment aren't so different in status after all.people

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emclean wrote:

Allow me to restate the question. What makes the right to bear arms different from not having to quarter the National Guard? Or do you feel it would be "OK" for a guards man to come to your door and demand food and a room for the night?

As far as I'm aware, the Supreme Court has never interpreted the Third Amendment. Indeed, in over 200 years since the adoption of the Bill of Rights, it appears that federal courts have addressed the Third Amendment only once. In Engblom v. Carey, the Second Circuit Court of Appeals held that the Third Amendment is "incorporated" in the Fourteenth Amendment, meaning that the right of homeowners to be free of troops quartered in their houses in times of peace is a fundamental right that cannot be abridged by the states without due process of law. As such, my rights under the Third Amendment are protected against both federal and state action. This is in contrast to whatever rights I might possess under the Second Amendment, which are only guaranteed against federal infringement.

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Thomas: If you look closely, you'll note that Dorf is refering to "scholarly opinion," not to the rulings of the courts. Indeed, as I read the article, it doesn't even appear that Dorf approves of this position. As he states: "My point, instead, is that a plausible (and in my own view somewhat more convincing) historical case can also be made for something like the collective right model of the Second Amendment" (emphasis added).

Furthermore, contrary to the scholars' "total incorporation" view of the Fourteenth Amendment, the Supreme Court has taken a "selective incorporation" approach: the Second and the Seventh amendments have never been incorporated into the Fourteenth Amendment. The Third Amendment (as noted above) remains an open question. And the grand jury clause of the Fifth Amendment has likewise never been incorporated into the Fourteenth Amendment.

So scholars can continue to urge the courts to adopt a total incorporation approach, but, until they succeed in swaying the Supreme Court, we are stuck with selective incorporation. And selective incorporation leaves the Second Amendment out of the Fourteenth Amendment's "due process" clause.

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Do anyone of you feel that guns should be banned, if so why?

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Poor emclean: no one wants to take the only position that he can effectively debate.

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I think you are being generous there Joe, I'll take it just because you think he can effectively debate it.

emclean, guns should be banned as their need is self-propagating.

Note to cjhsa: I know, I know.

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is there no value in shooting sports as a hobby?

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emclean wrote:

Do anyone of you feel that guns should be banned, if so why?

I don't know if it's a good idea to ban guns in America, given where your country is now. If you make all guns illegal, I expect that only honest citizens will hand theirs in, while the criminals will stick to theirs. Nobody can want this shift of power from honest citizens to criminals, so I don't think it's a practical option to abolish guns in America now.

On the other hand, we don't have a right to hold and bear arms here in Germany, and that nobody is missing it -- including myself. The rhetoric of some conservatives that this right is essential for a free society is self-serving nonsense.

joefromchicago wrote:

Indeed, as I read the article, it doesn't even appear that Dorf approves of this position. As he states: "My point, instead, is that a plausible (and in my own view somewhat more convincing) historical case can also be made for something like the collective right model of the Second Amendment" (emphasis added).

I read the article the same way. What I'm saying is that he is taking inconsistent positions on the incorporation debate. When he talks about abortion rights, he leans much more towards a principle of total incorporation than when he talks about gun rights.

As to Supreme Court rulings, I read the "Constitutional Conflicts" site you linked to as saying that there is a precedent from 1876 where the Supreme Court rejected the incorporation of the Second Amendment. Since then, the Supreme Court's opinion has moved much farther towards total incorporation on the Bill of Rights in general, but never explicitly decided whether the Second Amendment was incorporated by the Fourteenth Amendment. The precedent of 1876 is technically still in operation. But that isn't saying much, given how the Supreme Court's stand on incorporation changed over the 20th century.

As I currently understand it, the Jury is literally still out on the incorporation of the Second Amendment, so it seems fair of me to lean on scholarly opinion about the question.

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emclean wrote:

is there no value in shooting sports as a hobby?

Hard one to answer emclean. I love shooting and always have since I was a child.

I love guns, but do not try to argue that I should be allowed to have them. IMO you need to weigh the societal cost versus the societal benefit, society has already ruled that another of my hobbies (running around in the street naked) is not worth the downside.

Like Thomas I don't think banning guns would make a positive change. We are too deep in the gun culture.

But given time it could change, and given time the ban would extend to the bad guys too.

I reject many of the "self-defense" arguments about guns. Because the need for guns is self-propagating either side can be argued to be about protection. And either side can be argued to harm security.

The angle of freedom I find outdated. It had validity but no longer does. as Thomas stated. Many nations are very free without them.

So if it comes down to the legitimacy of the hobby I have to say that it's not too convincing. I've lived in places with strict gun laws and still managed to shoot. There were places available for this as a sport.

In England, for example, they have some of the best sporting marksmen in the world and there is allowance for guns for sport.

Would you consider a compromise? For example, if it were possible to divest the populace of arms but have them available in restricted settings (ranges, hunting areas) would your fun factor be satisfied?

I used to carry a gun illegally as a kid. It was not much fun. I coulda done without it. I thought it protected me but it often brought me danger (many long stories of insipid acts on my part).

I've also used guns in controlled settings like ranges and hunting grounds. There I had a lot of fun.

I'd not mind guns being banned, and a compromise that allowed for anyone to use them for sport in a controlled setting would bother me even less.

But as I've been saying, and as Thomas noted, the viability of the prohibition is a factor.

I see the effectiveness of a ban as very questionable and I see the likelihood of a ban as negligible. For this reason I am a gun nut who argues for gun-control but doesn't advocate much in way of change in America.

Incidentally, as a side note, do you note the effect of population density on crime and guns throught America's short history?

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The second amendment

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