2nd Amendment decision

December 6, 2002 7:16 AM

The right of the people to keep and bear grenade launchers. San Francisco's 9th Circuit Court of Appeals ruled yesterday that the Second Amendment protects only the right of states to organize and maintain militias, not the constitutional right to keep and bear arms. The 3-0 decision upheld California's sweeping 1999 assault weapons ban.
posted by gottabefunky (60 comments total)

Here is the full text of the Second Amendment:

"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."
posted by jsonic at 7:26 AM on December 6, 2002

I want a thermonuclear device. It's an arm, so it's my right. Right?
posted by jragon at 7:28 AM on December 6, 2002

jragon, you're mighty ambitious. Hell, I'd settle for a lousy Browning M2 .50 cal.
posted by alumshubby at 7:30 AM on December 6, 2002

I felt silly calling it an arm, so I checked out dictionary.com. . Behold:

1. A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms.

Not many people think people should be able to conceal thermonuclear devices, and quite a few think they should be able to conceal a handgun. There must be a dividing line between self defense and personal armories. As easy as it is to say "damn san francisco liberals", this is a great ruling that actually considers what a person actually needs for self defense.



Assault weapons are overkill.
posted by jragon at 7:32 AM on December 6, 2002

I just hope that the 9th district hasn't lost all credibility.
posted by LouieLoco at 7:34 AM on December 6, 2002

The founding fathers were themselves revolutionaries attempting a radical new form of government. They were worried that this new government might spiral down into tyranny and thusly included what amounted to 'right to revolt' as an immediate followup to 'right to transmission of thought.'

A thermonuclear device doesn't serve a lot of legitimate purpose in a revolution. Assault weapons do, but at a certain level of proliferation clearly cause an undo level of societal harm. Many would argue (and have, in previous threads on this topic) that handguns also fall under this category but that shotguns, so-called sniper rifles and semi-automatic weapons do not. Obviously, violent felons and the mentally ill should be barred from weapons ownership.

The problem is further compounded by the fact that many of the banned weapons in California simply appear lethal, and are not in fact any more or less so than other similar weapons.

Of course, all this is moot - the 9th Circuit Court of Appeals are the nutcase judges of the country, and were responsible for the recent pledge of allegiance flap. If this hits the Supremes it'll be overturned or the Supreme Court will find a uniquely interesting way to dodge interpreting this bit of the Constitution as they have whenever it rears its ugly head.
posted by Ryvar at 7:46 AM on December 6, 2002

I just hope that the 9th district hasn't lost all credibility.

Granted many feel that way, LouieLoco, but to the best of my knowledge the Supreme Court, the next step if there's an appeal, has not once in this nation's history disagreed with the position the 9th circuit took.

I agree with the ruling, but it's not even the issue of my opinion, only the court's- and (again, I might be wrong, but I'm pretty sure here) the Supreme Court's opinion has never decreed that individuals have a right to bear arms. Ashcroft is one of the first Attorneys General to take the reverse position as administration policy; how that can sway a high court's opinion, I'm not sure.
posted by XQUZYPHYR at 7:52 AM on December 6, 2002

They said it was for a militia, not for a right for revolt. You're reading into the words to construct the most flattering impression possible.

What if they actually thought all people should have access to any arms they wanted? We'd be overdue for an amendment, because you can't have people running around with tanks (great in a revolution), thermonuclear devices, and the like.

And it's pretty clear they did mean all weapons -- they didn't say "muskets but not cannons", or in modern terms, "handguns but not nukes". They're all arms, and if you really trust the words of the founding fathers to the letter, you'll agree I deserve to own a nuke. You know, for the revolution.
posted by jragon at 7:55 AM on December 6, 2002

I'm pretty sure even the civil-liberty nutcases like myself have to squint at that one and wonder whether you're not planning on holding the Earth hostage for *bites pinky* one MIIILLION dollars there, chief.
posted by Ryvar at 8:04 AM on December 6, 2002

They said it was for a militia...

Not quite. The second ammendment says that militias are important in keeping a state free, but then also specifically says that the people have a right to have weapons. Its a weirdly worded statement.

not for a revolt

Who the militia is intended to protect against is not specified, only that it is important in maintaining freedom. Governments can threaten freedom as much as any other foe.
posted by jsonic at 8:13 AM on December 6, 2002

I think just about anyone would agree with you there, jsonic. I'm pointing out that the text doesn't distinguish between a nuclear missile and a hunting rifle, but that doesn't mean there's no difference.

Therefore, a line has to be drawn, and I think banning assault weapons (even if some weapons aren't as dangerous as they look) is a fine place to start. Banning handguns goes too far, banning nukes is a no-brainer, and banning assault weapons is a good happy medium.
posted by jragon at 8:20 AM on December 6, 2002

jragon, define assaut weapons for me please?
posted by jbelshaw at 8:22 AM on December 6, 2002

According to the link above, "any semiautomatic assault weapon with one or more military characteristics such as a pistol grip, folding stock or grenade launcher".
posted by jragon at 8:27 AM on December 6, 2002

Grenade launcher is a no-brainer, jrargon, but pistol grips and folding stocks are basically cosmetic 'looks scary but is utterly meaningless for lethality' items. I think most reasonable gun advocates would say the same thing.
posted by Ryvar at 8:32 AM on December 6, 2002

jragon, i agree with society determining what arm level is appropriate since it is not specifically declared in the constitution.

My post was in response to your assertion that Ryvar was "reading into the words to construct the most flattering impression possible" when he said that revolution was something the founders considered when drafting the Second Amendment.
posted by jsonic at 8:35 AM on December 6, 2002

Weird definition.
posted by Foosnark at 8:36 AM on December 6, 2002

Hmm. The second amendment doesn't say anything about self-defense. It refers only to the necessity of keeping a "security of a free State." Banning assault weapons by arguing that they serve no self-defense purpose may be common sense, but it has nothing to do with any reading of the amendment that I can see.
posted by callmejay at 8:40 AM on December 6, 2002

The second amendment doesn't say anything about self-defense. It refers only to the necessity of keeping a "security of a free State."

Isn't the "security of a free State" measured by how secure its individuals are? Defending oneself is maintaining personal security. The amalgamation of individuals maintaining their personal security (and that of others) is the "security of the State".
posted by jsonic at 8:53 AM on December 6, 2002

Of course, all this is moot - the 9th Circuit Court of Appeals are the nutcase judges of the country, and were responsible for the recent pledge of allegiance flap. If this hits the Supremes it'll be overturned or the Supreme Court will find a uniquely interesting way to dodge interpreting this bit of the Constitution as they have whenever it rears its ugly head.

Good thing the Supremes aren't "nutjob judges" and aren't [Bush v. Gore] responsible for any obviously creative partisan opinions...
posted by goethean at 9:01 AM on December 6, 2002

jsonic, the amedment is implying that a well-regulated militia is necessary to a free state. As an individual, I feel safe with a well-regulated militia in the national guard and, to a less specific case, a law enforcement branch. The only amalgamation I see is the changing of "militia" to "individual."

Good thing the Supremes aren't "nutjob judges" and aren't [Bush v. Gore] responsible for any obviously creative partisan opinions...

I agree. This is a court that is perceived as many as one that would, simply at the whim of the current administration, reverse the entire national history of precedent. However, I think it is for exactly this reason they won't. I'm with the exact opposite of Ryvar's position: there's a few dozen decades of precedent refuting the legal individual right to own guns. For the Supreme Court to reverse that would shred even more of their already-stained credibility.
posted by XQUZYPHYR at 9:05 AM on December 6, 2002

Isn't security of a free State measured by how secure its freedom is?
posted by Ryvar at 9:23 AM on December 6, 2002

I feel safe with a well-regulated militia in the national guard

As I said above, who the militia is intended to protect against is not specified, only that it is important in maintaining freedom. Governments can threaten freedom as much as any other foe. Your national guard is government controlled.

the amedment is implying that a well-regulated militia is necessary to a free state

It also specifically states "the right of the people to keep and bear arms, shall not be infringed."

The only amalgamation I see is the changing of "militia" to "individual."

Notice the word people in the amendment text. Sounds much more like individuals than militia to me.
posted by jsonic at 9:34 AM on December 6, 2002

Ninth Circuit rulings frequently overturned; "The 9th Circuit is the most overturned appeals court in the country and is considered by legal scholars to be the most liberal."; 9th Circuit handles most cases, criticism.
posted by dhartung at 9:37 AM on December 6, 2002

Isn't security of a free State measured by how secure its freedom is?

The State doesn't have freedom, its individual people do. So the measure of a free State is how free its individual people are, including how free they are from violence. Self-defense is one way of maintaining this. Militias are as well.
posted by jsonic at 9:39 AM on December 6, 2002

But they relate to each other, jsonic. How can you argue that the amendment says that people should have guns because militias are essential and then say the framers weren't implying people should have those guns to BE in said militia? Furthermore, if it is that broad, then how can you justify such an over-reaching analysis as "well-regulated?"
posted by XQUZYPHYR at 9:40 AM on December 6, 2002

And dhartung: yes. We've established the controversy of the 9th circuit court. That doesn't mean every ruling they pass is automatically wrong. In this case, historical precedent, not just questionable opinion, is on their side- show me a Supreme Court ruling that favored individual gun rights and/or went against the 1972 Warin decision.
posted by XQUZYPHYR at 9:43 AM on December 6, 2002

I feel safe with a well-regulated militia in the national guard

Does the National Guard really satisfy that? Aren't they as much beholden to the President as they are to their respective Governors? Not that I'm terribly fond of the groups that actually refer to themselves as state militias. I'm one of those San Francisco nutjobs whose philosophy about gun owners is the same as my philosophy about cops - the more someone is inclined to be own the more I'm inclined to think they're going to be a bad one. But, if there are these people out there who are so inclined to prepare themselves to kill people to the greatest technological extent possible and who so fear the Federal government, couldn't they be channeled into some useful, "well-regulated" state run (state state, not nation state) organization that truly is state run, and not at all federal? Does an example of that exist? Then states could at least keep better tabs on where the grenade launchers and truckloads of fertilizer are, without the Feds having to know about it.

oops - on preview, I'm kinda redundant now. oh well...
posted by badstone at 9:44 AM on December 6, 2002

The State doesn't have freedom, its individual people do.

Agreed.

So the measure of a free State is how free its individual people are, including how free they are from violence. Self-defense is one way of maintaining this. Militias are as well.

I'd say the measure of how free a state is, is whether those individuals have the ability to reject the State once it becomes corrupt (as 100% of states have been shown to do).

--SB
posted by Ryvar at 9:58 AM on December 6, 2002

as 100% of states have been shown to do

Ha! That's pretty good...
posted by badstone at 10:00 AM on December 6, 2002

There's a pretty good case to be made that the 2nd ammendment does protect the right of the individual to bear arms.

Though it doesn't answer the question of degree (assault rifles? nuclear arms? handguns?).
posted by Lafe at 10:07 AM on December 6, 2002

Read Eugene Volokh on this. He explains why the 9th is disappointing.
posted by Steve_at_Linnwood at 10:14 AM on December 6, 2002

I feel the Supreme Court will most likely uphold this, if it ever gets there.

The one part that I would think they might chastise the Appellate court for would be its stand on "the people". A good example is U.S. v. Verdugo-Urquidez (1990) where the Supremes defined the people as mentioned in the constitution to be individuals. They specifically mentioned the 2nd amendment along with the 9th, 10th and preamble in their ruling.
posted by Plunge at 10:15 AM on December 6, 2002

I actually found this on some radical right-wing site, Lafe, in regards to some issue I didn't locate. However, the letter from the Office of the Solicitor General reprinted on it mentions the ten or eleven pretty good cases that established the denial of individual right.

In other words, those who are arguing that the 9th Circuit made some radical new advancement, a la the ruling against the Pledge of Allegiance, aren't entirely accurate in their view... the truth is that the 9th circuit mostly upheld previous rulings, most of which were in fact made by the higher court some of you are claiming seems to think the opposite.
posted by XQUZYPHYR at 10:18 AM on December 6, 2002

there's a few dozen decades of precedent refuting the legal individual right to own guns. For the Supreme Court to reverse that would shred even more of their already-stained credibility.

no there is not. at least not S.Ct precedent. silence is not precedent. the Supreme Court hasn't really ruled directly on the issue. Warin was a 6th circuit decision that the supreme court did not review. since the supreme court doesn't review most cases seeking cert., that does not mean much.

but read US v. Miller, one of the few times the court has delved into this mess:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

here the court is saying that possession of a sawed-off shotgun is not protected by the 2nd amendment. instead of ruling that the 2nd amendment doesn't apply to the defendant as an individual, the court said the weapon isn't covered. this is significant because if the court thought the 2nd amendment didn't apply to an individual, they would never have had to reach the conclusion that the weapon didn't qualify. (court's are not supposed to decide issues on which they don't have to rule).

also, as for the supreme court's dicta on militia:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
posted by probablysteve at 10:18 AM on December 6, 2002

Is there some translation from 18th century American English to 21st century American English that turns the phrasing of the 2nd Amendment into a complete sentence? It's kinda strange though, the other amendments drafted at the same time seem to use proper conjunctions to arrange their clauses in a logical way, so why not this one? The lack of conjunctions makes you wonder if the second and third clauses are meant to be parenthetical statements. (Clearly the second one is.)

I.e., it could be:
"A well regulated Militia (being necessary to the security of a free State), AND the right of the people to keep and bear Arms, shall not be infringed."
or, it could be:
"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."

Where the first instance calls for a militia AND it says that people can carry: guns, bombs, tanks, missiles, and truckloads of fertilizer. The second instance says that the right of the people to bear Arms is part of their definition of a well regulated Militia. Therefore, the states can regulate what kind of guns their Militias carry, e.g. assault weapons.

Interstingly, in neither case does it say that the people have the right to actually fire their arms (or blow up buildings full of people with truckloads of fertilizer.)
posted by badstone at 10:30 AM on December 6, 2002

I'll tell you what - to hell with the 2nd amendment! I will take the right to protect myself and mine, from who, or whatever, with whatever means I choose, regardless of what this, that, or any other gang (AKA government) says.
posted by LowDog at 10:32 AM on December 6, 2002

Granted many feel that way, LouieLoco, but to the best of my knowledge the Supreme Court, the next step if there's an appeal, has not once in this nation's history disagreed with the position the 9th circuit took.

Not true at all.

In United States vs. Miller in 1939, the Supreme Court ruled "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."

Also, three years after the Second Amendment was proposed, Congress passed the Militia Act of 1792 which defined "militia" to include "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years [subject to some narrow exceptions]".

If you read the debates from the constitutional convention, it's painfully clear that it was intended to be an individual right, not a collective right.

Further, when the Amendment was written, the phrase "well-regulated" did _not_ mean controlled by regulations, it meant "well-practiced".

Essentially, if you go to the gun range and shoot once a month or so, you're part of "a well-regulated militia" in the eyes of the people who wrote the 2nd Amendment.

This ruling is painfully and fatally flawed.
posted by wrffr at 10:35 AM on December 6, 2002

the truth is that the 9th circuit mostly upheld previous rulings, most of which were in fact made by the higher court some of you are claiming seems to think the opposite.

Miller is the only Supreme Court decision. The rest are circuit court decisions. Here is how to differentiate cases by the citation.

Federal circuit court decisions are only law for that circuit. They are of strong, but by no means conclusive, precedential value in other circuits.

wrffr: that's not technically what the court "ruled." it's just dicta. the ruling is really just that the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun.
posted by probablysteve at 11:41 AM on December 6, 2002

I could be wrong (happens a lot) but if you look at all 10 amendments in the Bill of Rights, there's a pattern, which is that they protect, at minimum, the rights of individuals: the right of an individual to free speech, to not have soldiers quartered in his house, to be secure in his person, house, papers and effects, etc. So it seems to me that the 2nd Amendment shouldn't be any different, and that it should be construed to mean that individuals have the right to bear arms.

That said, I don't know that the authors foresaw individuals having access to weapons that are available now, that is, automatic weapons, grenade launchers, etc, but clearly weapons existed back then that could kill more than one person at a time? Bombs, cannons, trebuchets, and the like existed then, but the authors didn't see fit to say, "except cannons" in the 2nd Amendment.

So therefore, I should be able to own a grenade launcher. That would be awesome.
posted by RylandDotNet at 11:47 AM on December 6, 2002

The REAL question here is not interpretation of the Second amendment. Obviously, that particular meaning of that text may be debated ad infinitum real question is enforcing whatever laws curbing gun ownership are enacted. One: there are literally millions of guns - handguns, assault weapons, even grenades and full auto military style weaponry, in private ownership. Until there is devised some way to part those weapons with their owners, lawful and unlawful, without wantonly stomping a goodly portion of the rest of the constitution (the part that is written very specifically and clearly), those weapons will stay in private hands. Two: For better or worse, American culture is bound up with gun ownership. Americans by and large equate the ownership of guns with freedom itself and the American character of independence and self-reliance. Without a radical change in the way Americans see themselves and their (albeit admittedly truncated) historical mythology, the first can never take place.

Until gun control advocates (who, even as a gun owner myself, admittedly have excellent points in favor of licensing and strict oversight) can address those two points, I think the debate concerning the Second Amendment is moot.
posted by UncleFes at 11:49 AM on December 6, 2002

Visualize the rich and powerfull controlling all the guns...

Ahhh, that's much better...
posted by ZenMasterThis at 11:54 AM on December 6, 2002

you'd think the founding fathers would be into us deciding what's best for us, right now, instead of believing themselves to be psychically empowered.

i like the attitude that we should interpret the constitution, bill of rights, etc, in a manner that best fits our society today.
posted by fishfucker at 12:14 PM on December 6, 2002

(and that 'psychically'? it looks so wrong, but it's really correctly spelled. i guess it's like smock. that made my day).
posted by fishfucker at 12:18 PM on December 6, 2002

Visualize the rich and powerfull controlling all...

Ahh, that's much better...
posted by inpHilltr8r at 12:19 PM on December 6, 2002

i like the attitude that we should interpret the constitution, bill of rights, etc, in a manner that best fits our society today.

Would you expand that to areas other than the Second Amendment? How about:

The Founding Fathers could never have imagined the destructive potential of radiological weapons or hijacked airliners, if they could they certainly wouldn't have insisted that we had to grant the right of habeas corpus to people planning to use them

Or for that matter:

No one could have imagined a communication medium as powerful as the Internet, where anyone could communicate to millions with practically no effort at all. The "freedom of the press" was never meant to be applied in this manner.

posted by jaek at 12:29 PM on December 6, 2002

i like the attitude that we should interpret the constitution, bill of rights, etc, in a manner that best fits our society today.

I like 'em just the way it is, thanks. I don't mind so much when they add to the ways that government can't mess with you (like women's suffrage), but most amendments I've heard of, especially recently, seem like very bad ideas (like prohibition).
posted by RylandDotNet at 12:30 PM on December 6, 2002

sure. we should empower ourselves. if our representatives make terrible decisions like that, we've no-one but ourselves to blame.

why don't we currently have any leaders that we look up to as much as the founding fathers?
posted by fishfucker at 12:32 PM on December 6, 2002

i should add that i realize my comments are more idealist than practical.

it's like voting green.
posted by fishfucker at 12:34 PM on December 6, 2002

why don't we currently have any leaders that we look up to as much as the founding fathers?

Give it a couple hundred years.
posted by UncleFes at 12:35 PM on December 6, 2002

I still haven't seen much about the allowed extent of weaponry. If you're pro-arms, why aren't you pro-thermonuclear device? After all:

A nuke and a rifle are both "arms".
There's nothing in the wording that limits the size of your weapon.
We trust the words of our nation's forefathers.

If those statements are correct, I should be allowed to have a nuke. Prove me wrong.
posted by jragon at 1:01 PM on December 6, 2002

Even if the second amendment created an individual right, it was most certainly intended to be a right against the federal government not against the states, so it wouldn't have any applicability to whether California could ban assault weapons. In order for it to be applied against state law, a court would have to find that it was a right "fundamental to a scheme of ordered liberty" which seems pretty hard to show in this day and age, since there are no state militias anymore.
posted by boltman at 1:37 PM on December 6, 2002

Re: having a "nuke" as an arm...

Some of you people need to read the federalist papers, the papers discussing the wording, proposal and ratification of the Bill of Rights.

Upon reading them, you will find that the definition of "arms" is fairly clearly defined; what the modern infantryman would have. A mortar team, a cannon team or a nuclear ordnance team is not standard infantry. So, a select fire M16 with a M203 grenade launcher would apply.

The idea is that you would be able to call up a group of well-disciplined (i.e. "regulated), able men (the "militia") in time of need. Troops under the pay of the government were called the "Special militia", and were greatly distrusted by Jefferson and others. Yes, that makes the National Guard the "Special Militia", not the Militia mentioned in the 2nd amendment.

Unless, of course, you choose to believe that they decided to wait over 100 years before forming the militia after the ratification of the 2nd amendment, and that "of the people" doesn't mean the same thing that it means in the 1st, 4th and 10th amendments. The potential ramifications of such fluid interpretation of words is left as an exercise for the reader.
posted by hadashi at 2:09 PM on December 6, 2002

hadashi: The federalist papers are not authoritative guides to constitutional interpretation. They represent the opinions of only a couple of the founders. If you insist on going down the "original intent" road, you might consider the fact that the Senate struck language from the original 2nd amendment which defined the militia as "composed of the body of the people." Why on earth would it do this if it was concerned about granting all people the right to bear arms?

Also, if you believe original intent is decisive, I assume you agree that the Second Amendment does not apply to state laws like the one in question since the Bill of Rights was intended to apply only to the federal government?
posted by boltman at 3:28 PM on December 6, 2002

boltman writes:

hadashi: The federalist papers are not authoritative guides to constitutional interpretation. They represent the opinions of only a couple of the founders. If you insist on going down the "original intent" road, you might consider the fact that the Senate struck language from the original 2nd amendment which defined the militia as "composed of the body of the people." Why on earth would it do this if it was concerned about granting all people the right to bear arms?

You'll also note that the was considerable argument that this amendment wasn't necessary at all, since the "right of self defense" (their words, not mine) was a natural right - why the need to enumerate it? This was, like all bills or legal wording, a compromise wording.

Plus, you will note in the debates covered in the Federalist papers that there was never any disagreement to the idea that firearm ownership was an individual, natural right. At no point did anyone in these debates suggest that arms should be reserved only for the government. Not once - and that omission, along with the other topics of debate, make a convincing case that there was no disagreement on this matter. Not "some minor disagreement" - none.

I notice that you ignore the bigger issue. Are you also arguing that the "of the people" in the 1st, 4th and 10th amendment are group or state rights? If so, please explain how you come to that conclusion.


Also, if you believe original intent is decisive, I assume you agree that the Second Amendment does not apply to state laws like the one in question since the Bill of Rights was intended to apply only to the federal government?


Perhaps that would be a viable argument if it were not for this:


Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


(emphasis mine)

I dare say that a natural right, enumerated and specifically protected by the 2nd amendment, certainly falls under "life, liberty, or property".

Yes, this is armchair constitutional law; however, it makes a fair amount of sense to me. Still, I must add the obligatory IANAL.
posted by hadashi at 3:56 PM on December 6, 2002

Hadashi has just alluded to incorporation, but apparently, the Supreme Court has never ruled that the right to bear arms is inherent in "our concept of ordered liberty." Personally, I believe in "selective incorporation plus" - some B.o.R. rights are inherent in the concept of ordered liberty, but some aren't (i.e. a right to a jury trial in civil suits concerning sums greater than 20 dollars?), and some rights not spelled out in the B.o.R. may still be part of that concept as well.

I also don't think that the right to bear arms should be incorporated; if there is problem with handgun violence in your city, your city should be able to license (i.e., restrict) handgun ownership as much as is deemed necessary (and in accordance with its own charters and its state's constitution). The point of the Second Amendment was to prevent the federal government from taking away people's guns, and thus stripping state militias of the power to resist a centralized tyranny. In this post-Civil War era of nationalized militias and an overwhelmingly powerful federal military, however, it seems a moot point.
posted by skoosh at 4:52 PM on December 6, 2002

Are you also arguing that the "of the people" in the 1st, 4th and 10th amendment are group or state rights

The difference is, of course, that in these amendments the right in question is not set up as serving some specific public purpose. Suppose the first amendment read:

"An informed political discourse, being necessary to the viability of the democratic process, the right of the people to speak freely shall not be infringed."

methinks freedom of speech would be interpreted as a little less broad under my version then it is under our current 1st amendment doctrine. How could a court possibly strike down an anti-pornography law or limitations on advertising given the obvious purpose of protecting only political speech?

My point here is that the rules of statutory interpretation require that all the language used in a statutory (or constitutional) text must be given effect. The individual rights interpretation of the 2nd amendment renders the first half of the 2nd amendment superfluous, which is generally not allowed unless the superfluousness of the language in question is just glaringly obvious, which it is clearly not here. To give the militia language real effect, you must construe it as a limitation or condition placed upon the subsequent language.

As for your citation of the 14th amendment, you are certainly correct that if anything in the constitution would apply the 2nd amendment to the states, that would be it. But the test is whether the right is "fundamental to the scheme of ordered liberty." Since the "right" to bear arms is set up in the constitution as merely instrumental to the governmental goal of national defense, it's very hard to see how it could pass muster as "fundamental" to ordered liberty. Also, "self-defense" doesn't count because the both Bill of Rights and the 14th amendment are solely concerned with giving you rights against the government, not against your fellow citizens. You'd have to throw your lot in with the militia people and argue that guns are essential to protect yourself from governmet oppression. Good luck with that argument in front of a court.

Also, going again back to the "original intent" perspective, there is little doubt that the authors of the 14th amendment were not thinking about the Bill of Rights when they penned the due process clause. The incorporation doctrine can only be called judicial activism on the part of a 20th century Supreme Court.
posted by boltman at 5:11 PM on December 6, 2002

(not that judicial activism is necessarily a bad thing in my book)
posted by boltman at 5:15 PM on December 6, 2002

I.e., it could be:
"A well regulated Militia (being necessary to the security of a free State), AND the right of the people to keep and bear Arms, shall not be infringed."
or, it could be:
"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."

I always assumed it meant "Since a well regulated Militia is necessary to the security of a free State (and since you can only have such a thing if people are allowed to own firearms), the right of the people to keep and bear arms shall not be infringed." In other words, the Milita language is a preamble expaining why the right of individuals to have arms is important to the state as a whole.
posted by straight at 8:56 PM on December 6, 2002

Straight: Right. I read it actually as an endorsement of both a state right (the right to call a militia) and the individual right (to bear arms) that is a prerequisite for it.
posted by kindall at 11:53 PM on December 6, 2002

Straight, kindall: If it was a semicolon seperating the two halves then the argument for two seperate rights would be strong. The earlier drafts of the amendment did actually contain a semicolon. However, the Senate changed it to a comma. The only explanation is that they wanted to be sure that the militia part was read as conneted to the bearing arms part.
posted by boltman at 8:49 AM on December 7, 2002