Fixing the Second Amendment

#1
lawgator1

lawgator1

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#1
https://www.washingtonpost.com/opin...a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

Former Justice Stevens explains how the Court interpreted the 2nd Amendment for 200 years, in accord with history and the text, but got away from that and expanded it too far.

April 11, 2014

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “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.”



For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”



When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.



Organizations such as the National Rifle Associationdisagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
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He proposes adding five words, to return it to its original intent and language.


“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
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#3
#3
nope. to serve in the militia at the time you had to provide your own arms. impossible to have a militia that doesn't have access to arms everyday. defeats the purpose. the militia is to be called up in times of needs when the military isn't in the area or can't function. so the very existence of a militia is dependent on the idea of the citizens already being armed before being called into service.

now the angle of military arms vs other arms could be a valid argument, but good luck defining exactly what those weapons are and aren't.
 
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#4
#4
lawgator1 said:
https://www.washingtonpost.com/opin...a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

Former Justice Stevens explains how the Court interpreted the 2nd Amendment for 200 years, in accord with history and the text, but got away from that and expanded it too far.



He proposes adding five words, to return it to its original intent and language.
Click to expand...

So you're OK with militias having guns, but not individuals? And what happens to the guns when people are away from their militias? They leave the gun or take it with them?
 
#5
#5
SamRebel35 said:
So you're OK with militias having guns, but not individuals? And what happens to the guns when people are away from their militias? They leave the gun or take it with them?
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The purpose of the well-regulated militia language, which is so often just ignored by the NRA and gun proponents on this board, was so that the states could protect themselves from a national army, should the national army ever come to threaten them.

So yes, I have no problem with an individual state's well-regulated militia having firearms.
 
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#6
#6
This is ****ing nonsense.

Amendment X implies that the feds have no right to infringe on state gun laws. If we want to talk original intent, the idea was that the government only has powers explicitly expressed in the constitution. Even if you accept this completely bogus interpretation of the 2nd amendment, the feds still don't have the power to take my guns without an amendment to the constitution.

Beyond that, we are the militia, whether a fight is eminent or not.

I find it very ironic that he is worried about the supposed expansion of individual rights, but not government power.
 
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#7
#7
n_huffhines said:
This is ****ing nonsense.

Amendment X implies that the feds have no right to infringe on state gun laws. If we want to talk original intent, the idea was that the government only has powers explicitly expressed in the constitution. Even if you accept this completely bogus interpretation of the 2nd amendment, the feds still don't have the power to take my guns without an amendment to the constitution.

Beyond that, we are the militia, whether a fight is eminent or not.

I find it very ironic that he is worried about the supposed expansion of individual rights, but not government power.
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You can't use it as a sword and a shield like this. You cannot say on the one hand that the source of the right for a kid, who was mentally imbalanced and tried to commit suicide, to have 14 frickin guns is the Second Amendment, and then say on the other hand that even if the Second Amendment has nothing to do with it, then the Tenth Amendment bypasses the Second.
 
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#8
#8
Were you pistol whipped as a small child? You're irrational fear of law abiding citizens carrying a concealed weapon is disturbing to say the least..😜
 
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#9
#9
lawgator1 said:
You can't use it as a sword and a shield like this. You cannot say on the one hand that the source of the right for a kid, who was mentally imbalanced and tried to commit suicide, to have 14 frickin guns is the Second Amendment, and then say on the other hand that even if the Second Amendment has nothing to do with it, then the Tenth Amendment bypasses the Second.
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Madison originally didn't want a bill of rights, because he thought including them would imply that the government is authorized to do anything not expressly mentioned in the constitution. He thought these were inherent rights. The bill of rights was later added because he decided it was necessary. Both the 2nd and the 10th were there for the protection of the people and the states. Not sure what you think conflicts there.

Now, if you are arguing the states have the power to take my guns, under original intent, I will agree with you.
 
#10
#10
Why on earth would the Second apply to people only if they serve in a state organization when all the others are individual rights?
 
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#11
#11
lawgator1 said:
https://www.washingtonpost.com/opin...a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

Former Justice Stevens explains how the Court interpreted the 2nd Amendment for 200 years, in accord with history and the text, but got away from that and expanded it too far.



He proposes adding five words, to return it to its original intent and language.
Click to expand...

Praise Lord Jesus that Stevens can "fix" the second amendment for us. I mean, after all, why the hell would we think the Framer's of the Constitution could actually write it correctly. We clearly need some modern intellect on this one.
 
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#12
#12
n_huffhines said:
Madison originally didn't want a bill of rights, because he thought including them would imply that the government is authorized to do anything not expressly mentioned in the constitution. He thought these were inherent rights. The bill of rights was later added because he decided it was necessary. Both the 2nd and the 10th were there for the protection of the people and the states. Not sure what you think conflicts there.

Now, if you are arguing the states have the power to take my guns, under original intent, I will agree with you.
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If the source of your right to have guns is English common law, or so-called "natural rights," then that is a discussion we can certainly have. Justice Stevens' point is that for 200 years the Second Amendment was not viewed as the source of that right, because of the qualifier that it be connected to the well-regulated militia.

To make sure we are all on the same page on that particular point, he suggests language reaffirming the limits of the Second Amendment.

And you're right, we can go from there on common law sources of a right to have a firearm.
 
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#13
#13
If Stevens is right that the 2nd only gives the right if you are part of a State militia then any state could simply say as resident of this state you are part of the militia.
 
#16
#16
volinbham said:
If Stevens is right that the 2nd only gives the right if you are part of a State militia then any state could simply say as resident of this state you are part of the militia.
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this, I want LG to define who the militia is.
 
#17
#17
lawgator1 said:
If the source of your right to have guns is English common law, or so-called "natural rights," then that is a discussion we can certainly have. Justice Stevens' point is that for 200 years the Second Amendment was not viewed as the source of that right, because of the qualifier that it be connected to the well-regulated militia.

To make sure we are all on the same page on that particular point, he suggests language reaffirming the limits of the Second Amendment.

And you're right, we can go from there on common law sources of a right to have a firearm.
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He is simply trying to re-write history. He needs to add wording to the constitution for his point to be valid. The original intent was that people had the right to bear arms. The language supports that.

If there is any validity at all to the argument, you should be able to show me a founder, an influential politician, or even journalist of the time that argued individuals only had the right to bear arms when in the service of the militia. I doubt you can find one, let alone find popular support for this idea.

I won't hold my breath.
 
#18
#18
and while i am not avidly for this line of thinking, LG might want to be careful about the militia and being able to fight. I would make the argument that any militia if it was to be effective would need access to highly militarized weapons, ammunition and calibers. as well as all sorts of explosives, rockets and the such.
 
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#19
#19
So let's take Steven's understanding of the 2nd

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
Click to expand...

1. Any gun can be used in military purposes. In particular the 2nd is protection against the Feds so any gun an individual has could be used against tyranny of the Feds and would by definition be used militarily.

2. If states can ban guns that doesn't stop other states from having them. Of SCOTUS has several times upheld that state doesn't have the power to prevent individual ownership.

So Stevens is walking down a path that takes what he considers and original intent and then ramps up the meaning of one particular part to arrive at a reading where there is no individual right.
 
#20
#20
It's funny how a direct statement in the Constitution of rights is argued to not be there but a right to privacy meaning a right to abortion is argued to be there though it is not directly stated.

I wonder if Steven's has a "fix" that would clarify Roe v Wade?
 
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#21
#21
I love how LG links everything together.

Behold, the humble comma that separates "militia" from "people."
 
#22
#22
Since we're in a 'fix it' mood, can we fix the amendment that senators are elected by popular vote? Return to original intent and all.
 
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