The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence. Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies. While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers.
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.14 And the Court’s emphatic reliance on the claim “that the Second Amendment … codified a pre-existing right,” ante, at 19, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.
Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 63.
The Civic Right interpretation is still a legally valid interpretation since four justices followed it.
The amendment quite clearly states, "the peoples right to keep and bear arms shall not be infringed."
ReplyDeleteThe term "the people" means exactly the same thing everywhere it appears in the constitution. If not then Americans citizens have no definite rights at all.
The death of a child is a tragedy. However the truth is that there are over 300 million people in America and fewer people are killed by firearms than automobiles. Far fewer are killed by firearms than heart disease or alcohol.
How is a death by firearm more tragic than a death from alcohol consumption? Please explain this.
First off, anonymous, you obviously didn't understand the point I was trying to make, but...
ReplyDeleteSo, are you saying that when the preamble opens the constitution, it means that each and every US citizen was present when the document was being drafted?
Isn't that a rather silly proposition?
I can also tell you that you didn't understand the point that justice Stevens was making in that you cannot separate the two clauses. To do so renders the Second Amendment a dead letter.
If the reason for a law ceases to exist, so does the law.
The reason for the Second Amendment is:
A well regulated Militia, being necessary to the security of a free State
Which is implemented by:
the right of the people to keep and bear Arms, shall not be infringed
One cannot exist without the other.
Each is as important as the other.
To say that one part can exist when the other is not valid. That admits that the reason for the law is no longer valid, therefore, the law is no longer valid.
Seriously, that your comment is one of the less informed ones available.
Anyway, you once again resort to the rather cliché arguments comparing firearms to other items. we can get into how the firearm-alcohol or firearm-auto analogies are fatally flawed.
Death by firearm is far more tragic than a death from alcohol because alcohol is not necessarily lethal--in fact, it is the moderate use which makes it desired.
Firearms, on the other hand, are designed to injure or kill. That is what makes them attractive to you is the lethality of a firearm. A child who misuses a firearm is more likely to be seriously injured or cause damage than if they misuse alcohol.
We can also get into the cost to society for gunshot injury and prosecution of firearms crime.
Is that in simple enough language for you to understand?
I notice that you do not propose teaching martial arts,such as karate, in schools, or the use of other non-lethal methods for defending your home. Those exist, so there is no specific civilian need for firearms for defence.
I can further destroy your position on how the Second Amendment relates to the rest of the Constitution, but it's not much fun showing up the ignorant.
"So, are you saying that when the preamble opens the constitution, it means that each and every US citizen was present when the document was being drafted?
ReplyDeleteIsn't that a rather silly proposition?"
Dear Laci,
No, not everyone was present at the signing of the Constitution. But if "We the People" refers only to the signers, then the "Blessings of Liberty" in the Preamble are applicable only to them?
McGruff, you make a good point--the term people can refer to both individuals and subsets of individuals amongst the universe of "the people".
ReplyDeleteOf course, this is a distraction from the issue at hand.
The Second Amendment by its text addresses the issue of the militia, and also in conjunction with the fact that one of the purposes of the constitution is to "provide for the common defence" which is mentioned both in the preamble and beginning of Article I,Section 8.
No where is self-defence or personal defence specifically mentioned in the Constitution.
In the Heller-McDonald decisions, the majority opinion interprets the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments to “law-abiding, responsible citizens.” But the class of persons protected by the First and Fourth Amendments is not limited because felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.
The Heller-McDonald decisions neglect the manner that the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship. It grants the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.
Continued
ReplyDeleteAs used in the Fourth Amendment, the term “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment . For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment . Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment , the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.
There is also the rule of Statutory interpretation called Ejusdem generis ("of the same kinds, class, or nature") which is when there is a more specific descriptor is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
The Latin words ejusdem generis (of the same kind or nature), have been attached to a canon of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.
Thus, the general term "people" in the Second Amendment is limited by the restrictive "well-regulated militia" in the text.
Thus, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.
So,it is incorrect to state that "The term "the people" means exactly the same thing everywhere it appears in the constitution."
Anonymous conveniently left out the first three words.
ReplyDeleteA well-regulated militia
Or is that four words?
A well regulated militia
This is the second amendment:
ReplyDeleteA 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.
It doesn't just say:
A well regulated militia being necessary to the security of a free State
or just say:
the right of the People to keep and bear arms shall not be infringed.
It must be read as a whole.
REPEAT
You cannot separate the two clauses. To do so renders the Second Amendment a dead letter.
If the reason for a law ceases to exist, so does the law.
The reason for the Second Amendment is:
A well regulated Militia, being necessary to the security of a free State
Which is implemented by:
the right of the people to keep and bear Arms, shall not be infringed
One cannot exist without the other.
Each is as important as the other.
To say that one part can exist when the other is not valid. That admits that the reason for the law is no longer valid, therefore, the law is no longer valid.
Hmm...
ReplyDelete"In the Heller-McDonald decisions, the majority opinion interprets the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments to “law-abiding, responsible citizens.” But the class of persons protected by the First and Fourth Amendments is not limited because felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions."
But the Fourth Amendment does not apply to searches of prisoners, for example. And prisoners' First Amendment rights are limited as well. Wardens can forbid prisoners from getting certain materials if the material would undermine security. It would seem that the First and Fourth Amendment fully protect only "law abiding, responsible citizens" as well.
Not to get all legal, but it seems like a lot of the post is Justice Stevens' dissenting opinion on Heller verbatim. Don't you have to make that attribution? Not sure about British copyright law.
ReplyDeleteMcGruf, are you from Tennessee? You may want to reread my post again.
ReplyDeleteNot to mention boning up on your constitution since the fourth amendment deals with search and seizure--a topic which is pretty important in the practise of criminal law. In fact, it is due to fourth amendment "technicalities" that criminals find themselves back on the streets.
Additionally, a convicted felon can exercise first amendment rights as can a lunatic: they have the right to religious freedom and to petition.
So, you might want to bone up on your constitution.
McGruff, it's public record--so, there really isn't any "copyright" involved.
ReplyDeleteNot to mention that is pretty much the crux of the Civic right interpretation.
I believe I do say that this is from the Heller decision, which means that it is attributed.
You might want to learn about these big words that you are using and what exactly they mean before you try using them.
It's becoming pretty obvious to me that you have no idea of what you are talking about McGruff.
McGruff, are you intelligent enough to spot:
ReplyDeleteFrom Justice Stevens' Heller Dissent (and you don't have to read too far to find it!):
And the first paragraph links you to:
http://www.law.cornell.edu/supct/html/07-290.ZD.html
So,I think this is pretty well attributed.
As I said, you may want to learn about a little bit about these topics you are talking about.
Since it's pretty obvious that you know fuck all about them from reading your comments, McGruff.
But, what about the grammar of the first three or four words. Is well-regulated hyphenated or not?
ReplyDeleteActually, Prisoners do have Fourth Amendment search and seizure rights.
ReplyDeleteBut what triggers the right is not one's status, but whether one has a "reasonable expectation of privacy". Since prisoners need to be secure, they do not have the same expectation of privacy they would have outside of prison.