Hmmm... perhaps I've been wrong.
May 31, 2000 3:22 PM   Subscribe

Hmmm... perhaps I've been wrong. It would appear that the federal courts *have* been being strict about the 'militia' interpretation of the Second Amendment. That may change, however, thanks to a Federal Appeals Court judge from, no surprise, Texas.
posted by baylink (18 comments total)
BTW: I'm really not trying to pound this into the ground, nor become the poster child for the Second Amendment. I just thought some of the people who had excellent comment (IMHO) to make on the earlier threads might be interested...
posted by baylink at 5:37 PM on May 31, 2000

Here's a question for those who oppose gun control as much as I support it - how can an intelligent person read the second amendment word for word and still come away with the notion that it guarantees the right of EVERY American to keep in bear arms?

I ask this in all seriousness and with an open mind - I'd really like to see how gun advocates interpret the second amendment. I can't conceive of a cogent defense for the right to bear arms using the ENTIRE amendment. I am, of course, heavily biased.

Is such an argument possible? I'm curious.
posted by aladfar at 6:26 PM on May 31, 2000

Here's where I play intellectual devil's advocate. There's an excellent on-line copy of the Constitution that is my source.

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.

Shall not be infringed kind of says it all, at least in terms for that guarantee you asked about. Quite simply, the Federal Government has abrogated to itself the right to decide this issue, and then decided that it would not prevent in any way the ownership of said weapons. It's a right. Sure, the original rationale behind that right was for the maintenance of a militia...the original rationale for the First Amendment was broadsheet tracts and newspapers! You have to adapt to the times.

Besides, as in the case of World War II, the fact that so many Americans are familiar with basic firearms means that our government doesn't have to worry as much about summoning up the full force of our volunteer army. In other words, although the Government now supplies the weapons, it is our duty as citizens who may be drafted into a military situation to be at least competent with them.

However, this responsibility, while important, simply is not the deciding factor. The Second Amendment vouchasfes to every citizen the ability to own his or her own weapon, and furthermore links such weapons ownership to the security of a free State. These two factors are all that is present in the Constitution of the United States regarding the ownership of firearms (indeed, of all arms) and, as such, are a basic guarantee of my right to possess said weapons.
posted by Ezrael at 7:55 PM on May 31, 2000

Wow. Kinda scary, considering I don't even agree with what I just wrote. You have to be careful of sophistry, huh?
posted by Ezrael at 7:56 PM on May 31, 2000

Well done Ezrael. It's most difficult to intelligently argue for something that you don't agree with. Especially with a volatile topic like gun control - I don't believe I've the intellectual capacity to accomplish such a feat!

Here's where I take issue with your argument:

None would dispute that the constitution need to be read in the context of our current society.

One can't very well claim that a well regulated civilian militia is still needed for the protection of our free state. Because this militia is NOT essential, the implied right to bear arms becomes moot.

The amendment guarantees Americans the right to a militia, not the right to carry around firearms in case the British attack.

Perhaps a cunning gun advocate might argue that a *personal* militia is necessary in order to defend against the *free state* of ones family and property . . .

That starts getting a little loopy though.
posted by aladfar at 9:59 PM on May 31, 2000

One reading of the amendment goes like this:

* we want a free state.
* a well regulated militia is necessary for a free state to be secure.
* it is a prerequisite for a militia to exist that the citizenry be armed.
* hence, to ensure the possibility of a militia when it is required, the right to keep and bear arms shall not be infringed.

There are other readings, of course. An interesting one from Paul Fussell is that bearing a weapon constitutes a de facto membership in the militia. If you're caught on the street holding a weapon without your militia ID, you're AWOL, and subject to punsishment under the UCMJ (that's Uniform Code of Military Justice) as same. In order to be "well regulated", the militia should drill at least once monthly, have a two week summer exercise, yadda yadda.

In other words, buy a gun, and you automatically join the National Guard (roughly). Get caught with a gun and no Guard ID... and it's a loooooong time at Ft. Leavenworth (peacetime) or execution (wartime).

This is all permissible under Article I of the Constitution, which gives Congress regulating authority over the militia...

And the last, really twisty possible interpretation: What effect does no infringement on the right to "bear arms" have on gay/lesbian/transgendered/what-have-you citizens? Is "Don't ask, don't tell" constitutional under "not infringed"?
posted by aurelian at 11:48 PM on May 31, 2000

This is really simple folks. First of all, people owned guns well before the Constitution and none of them could have possibly imagined a scenario where someone would have dared to have the audacity to tell them it was no longer allowed. The right precedes and supercedes the Constitution.

Second, let's look at the wording again:

"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." Now, let's reorganize that sentence into more modern English syntax: "Since a well regulated Militia is necessary for the security of a free State we will not infringe on the people's right to keep and bear Arms"

It would seem that some people now believe that, since the Militia is now funded and armed by the government, the people's rights are moot. But I still haven't heard a sane, logical reason for getting rid of the guns in the first place.
posted by webwide at 5:15 AM on June 1, 2000

This is interesting. The way all of you folks quote the amendment differs from the way it was quoted in the article. There's a sticky comma issue here: "A well regulated Militia, being necessary..." It makes the necessity part a non-restrictive clause instead of a restrictive one. To me, without the comma (as you folks have quoted it) it says "As long as a militia is necessary for security..." With the comma, it asserts that a militia is necessary, and we're also not going to ban citizens from owning guns.

Finally, I assert that the organization we need protection from--and I believe this is what the founding fathers were thinking of, too--is a tyranical federal government. The Constitution is all about setting down which privileges we grant to the Feds, with the understanding that everything else is reserved for the States. I don't think we have the right to shoot each other, but I do think we have the right to own guns in order to defend our freedoms from the government.

Why do you think they want to curtail that right?
posted by Spyderella at 6:41 AM on June 1, 2000

I was hoping someone would notice that comma.

I think the people in question want to curtail that right either because they just lost someone to a gun (IE: emotion), or because they are trying to look what they think their constituents will think is 'moral' (IE: grandstanding). But then, everyone knew what *I* thought. ;-)

Nice one, BTW, Ez. I agree with you, even though *you* don't. :-)
posted by baylink at 9:16 AM on June 1, 2000

Ultimately, Spyderella, because we are shooting each other. In great quantity. With very powerful weapons.

Aladfar, I don't know about your statement that no one can claim a well-regulated militia is necessary for the preservation of a free State. Obviously, anyone can claim almost anything. I can claim I've been in a UFO. Furthermore, unlike my UFO statement, the people claiming that it is neccessary have access to the writings to Thomas Paine and Tom Jefferson to back them up. I don't agree with them, but it's hardly a whacko claim.

Paul Fussell's reading strikes me as totalitarian. Furthermore, just because the maintenance of the militia is the reason for the Right doesn't link the two causally. The Second Amendment doesn't say that the Right to bear arms is directly linked to the militia. If you read that sentence, you get an uncomfortable sensation that they forgot the subordinate clause when they put on that period. There's an implied 'because' in the first part, and an implied 'therefore' to the second, but the Right doesn't depend on militia membership. Probably because, to the FF, it was taken as a given that all able-bodied men would be in the militia. Selective service didn't exist, neither did the volunteer army as it does now, and the National Guard was far in the future.

My dad would be proud, but I may lose my ACLU card for this.
I gotta cut back on the trying to see the other guy's side of things.
posted by Ezrael at 9:21 AM on June 1, 2000

Bay, that's what scares me. :)
posted by Ezrael at 9:22 AM on June 1, 2000

Assuming that the Constitution really, really means it, is there still a legitimate basis for handguns? Almost all of the uses for guns that I think the average, non-criminal citizen is going to have (hunting, sport shooting, protection of the home) are best served by longarms. What's the purpose of sidearms, unless you're a cop, a criminal, a collector, or some combination therein? In particular, what purpose do sidearms serve in our theoretical militia of American citizenry?
posted by snarkout at 9:55 AM on June 1, 2000

Ez, Fussell was basically being snarky with that interpretation.

That is, he believes that if you attached such high requirements to gun ownership, no one would bother with guns anymore... and the ones who did would be relatively disciplined, vis-a-vis the intent of the amendment.

posted by aurelian at 10:24 AM on June 1, 2000

In particular, what purpose do sidearms serve in our theoretical militia of American citizenry?

I couldn't tell you myself, but unless I'm mistaken the U.S. army still issues handguns - so obviously THEY think there's some military value to that type of weapon.


posted by Mars Saxman at 10:40 AM on June 1, 2000

I thought that handguns were only issued to officers. Is this no longer the case?

And really, thinking about it, what military value do the handguns serve to the officers? Being able to shoot mutinous soldiers?
posted by snarkout at 11:37 AM on June 1, 2000

I think sidearms are for close quarters, and redundency in the event of malfunction.
I know I have seen pistols on MP's, but I am sure they are not issued to everybody. It is a fancy privilage, like a sword.
posted by thirteen at 12:04 PM on June 1, 2000

I have a cousin who hunts with a handgun. I do not approve, but he is successful. It is hard to argue with results. I do not think it is anymore cruel than hunting with a rifle, I am just afraid the kill would not be precise, and the animal would suffer, or be rendered unfit. I don't think I could hunt anything other than skeet myself.
posted by thirteen at 12:09 PM on June 1, 2000

try carrying a rifle or shotgun around in a fanny pack or a purse. Handguns are primarily for self-defense, pure and simple. Get rid of ALL the criminals (jail, death sentence, etc.) and I'll gladly put my gun back under the bed. Until then.........................[insert famous quote recenly used by Heston here]..........
posted by webwide at 2:04 PM on June 1, 2000

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