SubscribeThe right to bear arms gives you the ability to shoot people. The Second Amendment puts the gun in the neighbor's pocket: if he then shoots me, the Second Amendment gave him the ability to do that.Would you say that having the legal right to own a big, sharp kitchen knife also gives you the right to stab someone with it?
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”...
FN3. As Sutherland explains, the key 18th-century English case on the effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict the effect of the words of the purview.” J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” Ibid.Justice Stevens says that we violate the general rule that every clause in a statute must have effect. Post, at 8. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.
FN4. Justice Stevens criticizes us for discussing the prologue last. Post, at 8. But if a prologue can be used only to clarify an ambiguous operative provision, surely the first step must be to determine whether the operative provision is ambiguous. It might be argued, we suppose, that the prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous-but that would cause the prologue to be used to produce ambiguity rather than just to resolve it. In any event, even if we considered the prologue along with the operative provision we would reach the same result we do today, since (as we explain) our interpretation of “the right of the people to keep and bear arms” furthers the purpose of an effective militia no less than (indeed, more than) the dissent’s interpretation. See infra, at 26-27.Volokh's article compares the text of the Second Amendment to amendments from other (state) constitutions. I've yet to see an explanation of why the framers of the Bill of Rights chose to insert a preamble only into one amendment-- there was none even in the First or the Third. Could be out there somewhere, I'm not an expert on this stuff. But this on its own doesn't seem too persuasive.
What I propose is that US gun owners be trained and their guns licensed in a very similar manner to US car owners.That's nice. You're going to need an amendment for that.
I propose the Swiss/Israeli model with compulsory military training for all and then strictly regulated gun ownership.
Boooo! Yay!
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What I propose is that US gun owners be trained and their guns licensed in a very similar manner to US car owners.That's nice. You're going to need an amendment for that.
I propose the Swiss/Israeli model with compulsory military training for all and then strictly regulated gun ownership.
Now, if USAians weren't really into killing people, mostly with guns, I might not care so much.And then protest about "respectful discussion" when people call you out on it is a bit hypocritical, despite your fig leaf that you were addressing "inhabitants of the US," and not other posters.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.The right to conduct your own sexual affairs and activities in private and have them treated as private matters is one that most would understand as being quite basic.
In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.
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1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense at home.
2. The Second Amendment right is not unlimited. The Court's opinion should not cast doubt on concealed-weapons prohibitions, laws barring possession of firearms by felons and the mentally ill, laws barring firearms in sensitive places like schools and government buildings, and laws imposing conditions on commercial sale of arms.
3. D.C.'s handgun ban and trigger-lock requirement violate the Second Amendment. The total ban on handgun possession prohibits an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any standard of scrutiny, that ban falls. The trigger-lock requirement makes self-defense impossible. D.C. may use a licensing scheme.
posted by Slap Factory at 7:51 AM on June 26, 2008 [2 favorites]