Gun control - HOT topic. Part Deux

Amendment 2 nothing tricky about it, although it is somewhat ambiguous by including the wording of a well regulated militia.

25,

Incorrect.

The second amendment says that the Federal government is prohibited from barring the states to make firearms illegal, as at the time, state militias were an important part of national defense.

States and local governments can ban all guns if they want without violating the second amendment, but the fed cannot.

Until 1932, the above interpretation was how the SC saw it. Then things started getting weird.

Quoted from the Constitution Society about the legal theory of the right to keep and bear arms.

" 1> The Second Amendment to the U.S. Constitution does not establish the right to keep and bear arms. None of the provisions of the Constitution establish any "natural" rights. They recognize such rights, but the repeal of such provisions would not end such rights. Such rights were considered by many of the Framers as obvious or "self-evident", but they were immersed in the prevailing republican thought of the day, as expressed in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which discussed "natural rights" in some detail."

2> The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution.

3> What the Second Amendment also does is recognize the right, power, and duty of able-bodied persons (originally males, but now females also) to organize into militias and defend the state. It effectively recognizes that all citizens have military and police powers, and the "able-bodied" ones -- the militia -- also have military and police duties, whether exercised in an organized manner or individually in a crisis. "Able-bodied" is a term of art established by English common law at the time the Constitution was adopted, and is the only qualification besides citizenship on what constitutes the "militia". While not well defined in modern terms, it is somewhat broader than just able-"bodied": implicit is also "able-minded" and "virtuous". In other words, persons might be excluded who were physically able to bear arms but who were mentally or morally defective. Defense of the "state"

Technically it's in the Bill or Rights, but that is an amendment to the Constitution

The fact is, the Second Amendment is NOT ambiguous. Like other amendments there is more than one one right enumerated. The 2nd acknowledges that American citizens have the right to keep and bear arms and specifies that the federal government can do nothing to restrict that right ("shall not be infringed.")

But before that, the 2nd also specifies that a well regulated militia is necessary. That part really confounds liberals who believe that the federal government must sanction and "regulate" this "militia" and then they try to make the militia into the modern armed forces and argue that the federal government can specify who can keep and bear arms. That is so very, very wrong.

In fact, around the 1790s (when the 2nd was written), "well regulated meant "practiced" and "competent." Specifically, in the case of the 2nd, "well regulated" means the individual militia members should be familiar with their weapons and their use. A well regulated militia would be composed of people who know how to shoot, load, repair and maintain.their weapons.

And militia - then AND NOW - is NOT a reference to anything the federal government controls day to day. The first provision of the 2nd specifically acknowledges that it is a "natural" right of Americans to assemble as an armed force! A militia is NOT a federal government controlled professional army.

The Militia Act of 1792 put to rest any question of who was in the militia. The 1792 act specified that EVERY able bodied male between the ages of 18 and 45 was a member of the militia and specified that militia membership was compulsory. The militia was self controlled, unless the individual state imposed further requirements upon the militia. The only time the federal government had any control over the militia would be when the militia were "called up" to aid in the national defense.

Today, the militia - BY LAW - includes every able bodied male citizen between the ages of 18 and 45, plus any foreign national residing in these united States who wishes to become a citizen, plus women who are members of the national guard or reserve, plus any American citizen of any age, gender or ability who wishes to volunteer for the militia. Notably no one is required to assert that they will volunteer before the militia is called up. So, essentially, we are ALL in the militia (unless we are over 45 and don't want to be.)

Because the 2nd implies the militia must have their own weapons, it is essential that any militia member have ready access to MILITARY firearms. There are many arguments still flying around about the 1930s federal tax and regulation of automatic weapons, with many legal scholars asserting that the natural right of Americans to keep automatic weapons has been unconstitutionally infringed. Other arguments about individual ownership of cannon, armored vehicles and explosives also abound. But no one can reasonably argue that the federal government can constitutionally restrict an individual's natural right to keep and bear modern personal firearms, including weapons capable of use in warfare.

So, Clubber.

Do I win the prize?

dallas gets an A+ in civics. Do they even teach civics any longer? If no, I can see a lot of the problems we have these days.

Anyway, to make it simple, the 2nd doesn't grant a right to bear arms, rather it PRESERVES and already existing right to bear arms. Only a bastardization of the English language and thought processes can see it otherwise.

I concede the point, good call.

Dallas702, great info. Lots of stuff in there I was not aware of. Thanks

This topic was an exercise in human behavior. I've learned a lot in my time away. One thing I learned is that most all speak ONLY from their history and have no grasp as to the past nor will they bother to check. This often leads to very UNIFORMED opinions and a misrepresentation of facts.

Clubber: The nuance of gun ownership as a "natural" right is a nice argument because it's rooted in the tradition of the time. And I agree that banning all guns isn't going to work in America anyway, so there's no need to rationalize how the Constitution might or might not protect the Ted Nugents of the world.

But that's a slippery slope, because you then must abandon this reasoning if you're conservative on the issue of gay marriage. Liberals would also argue that marriage is a "natural" right, and since a percentage of all mammals and birds are homosexual then the word "natural" is appropriate.

Marriage was a religious right absconded by the government.

The right of the people to keep and bear arms shall not be in fringed. What part of that do the liberal anti gun cowards. Understand!!!!!!!!

Natural rights are those which free societies at large have historically and traditionally recognized. Gun rights can certainly fall within this concept. However, to the best of my knowledge, gay marriage is a fairly recent development. Gay marriage has not been accepted and followed anywhere close to the degree that would be necessary to claim that it is a natural right.

I enjoyed this thread. Nice to learn a thing or two every day. Thank you OP.

I can tolerate a lot of things, just don't tell me gay marriage is "natural"

None of them.

JS and Mikeya: Gay "marriage" has been around for thousands of years even if Bible thumpers wish otherwise; guns are only a few hundred years old.

RE JS69,

Natural rights are those which free societies at large have historically and traditionally recognized. Gun rights can certainly fall within this concept. However, to the best of my knowledge, gay marriage is a fairly recent development. Gay marriage has not been accepted and followed anywhere close to the degree that would be necessary to claim that it is a natural right.

Even more of a fan of his since I met him!

rock,

"Gay "marriage" has been around for thousands of years..."

I can agree, but not government sanctioned. A BIG difference, my friend.

Sort of the same as killing babies!

Gay marriages were sanction in ancient Rome and Greece before that. Being anti-gay is a more recent Christian discrimination. I believe in a woman's right to an abortion on demand, but I'm sure no one supports baby killing. If a fetus is a baby, why aren't women and doctors put in jail? Or do you think they should be?

rock,

So you are saying the FATHER has no say what happens to HIS child?