Greg Roach's Berkshires Blog
Tuesday, March 18, 2008
Amendment II

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.
There are only two ways to interpret the Second Amendment: Either the founders were speaking of a trained civilian-based militia (the current interpretation)or they were saying that everyone should be allowed to keep the arms required for warfare in their home. There is no other valid interpretation.

For the gun rights crowd to argue, as they did today before the Supreme Court, that machine guns and other arms of war can be banned but not handguns is pure malarkey.

If the SCOTUS rules that handguns cannot be banned, I think I'm gonna try to buy a bazooka and sue.
I don't know Greg, I think one could argue what wass the intent of the law at the time. To my knowledge guns were not provided to citizens (of which the militia consisted) and therefore in order to keep an armed group to protect the state/nation, citizens must be allowed to own guns. Further more, a free state could be viewed as one where it's citizens are able to protect and defend themselves against lawlessness. However, gun ownership should be regulated by the government.

I think rather than should citizens be allowed to bear arms, the decision should be what is consider sufficient for one to protect and defend themselves. I don't think handguns and single shot rifles exceed this judgment.

If handguns are to banned, what about cross and compound bows? Equally deadly and a lot more quiet, perhaps not as stealth in their off the shelf form.

In today's times I think there should be a limit to the number of rounds that can be fired by one pull of the trigger as well as the caliber of the rounds.

Assured mutual destruction can be a pretty good deterrent.
The idea behind the militia clause was to supersede and balance the need for a standing federal army, for both practical and political purposes.

The right to protect oneself in one's home is not really mentioned in any of the writings of the time.

Personally, I think that guns should be regulated to some extent, but I don't see how that jibes with what the 2nd amendment says. If it is truly a "right" to posses an "arm", how can things like permits and licenses even be considered. (Can I be required to obtain a license to exercise my right to free speech?) How can the gov't say that things like military rifles are not a right?

The language is pretty absolute- "shall not be infringed."

If it is an individual right, and the SCOTUS is intellectually honest, I see little wiggle room. A right is not a privilege.

That said, the justices will likely return a narrow decision that declares handgun ownership an individual right but allows the gov't to decide what an "arm" is.

And I will call them political cowards.
I don't see how it's unreasonable, let alone cowardly, for the judges to disagree with you, to assert that reasonable regulation would include our current near-ban on weapons with exploding projectiles, silencers, and full-auto weapons, but not a ban on the entire class of handguns, or any ban which makes it impossible for someone to defend himself.

Such laws have held sway for most states for most of the past century, with few problems of definition or judicial slippery-slopes. (Legislatures, however, have sloped in either direction, as would be expected.)

There's also a pretty clear logic to most of these classic rules which have long applied in most states. For example, silencers are not themselves weapons or integral to the function of any type of weapon. Also, crew-serviced weapons, weapons on wheels, cannons, etc., by definition are not arms which one can "bear." Granted the bazooka presents a slightly harder case than the cannon, as it is a weapon which can be used by one man, but the bazooka is functionally like a cannon, not like any conventional kind of gun. And full-auto weapons are inherently difficult to control, and apt to lead to the shooting of people and things other than the intended target.

Certainly, the judicial choices on this matter will never be anywhere near as detailed or arbitrary as the established jurisprudence on, say, the 4th Amendment.
Watch out Dave. You're beginning to sound like one of those "living constitution" folks.

For the so-called strict-constructionists to accept any limits on the right to keep and bear military type weapons, should they find an individual right, is pure hypocrisy.

As to the 4th, the words "unreasonable" and "secure", both of them very subjective terms, appear. No such wiggle room is in the 2nd.
Brevity is the soul of wit, and regarding the "Collective Right" theory of the Second Amendment, Stephen
Halbrook said it best:

“If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated
and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known
writing surviving from the period between 1787 and 1791 states such a thesis.” (That Every Man Be Armed, Univ.
of N.M. Press, 1984)
Greg you don't need a license for free speech, but in the same sense there are certain rules, regulations, and limits when it comes to casting your vote.

There are also limits to life, liberty, and the pursuit of happiness.

I see no hypocrisy in upholding one's right to bear arms while still making an attempt to prevent a lawless society.

The language is pretty absolute- "shall not be infringed." However the term "arms" is not. I suppose if one were to take an unbending reading of the article, then only arms that were available at the time should be allowed.
Snoop - If only arms available at the end of the 18th century should be protected, I proposed that only spoken and printed speech be protected.

In case you haven't figured it out, I am only pointing out the double standard that the pro-gun types use to make their 2nd amendment arguments more politically palatable.

Unless the constitution is amended, it is my preference that the SCOTUS not screw around with the 1939 Miller decision. But I suspect that the justices will find an individual right and chaos will ensue for a decade or two as every single limit is tested.

And as I pointed out to Dave, when the framers wanted to include "reasonable" limits on rights, they did.

And just as libel or shouting fire in a crowded theater is not protected speech, neither will shooting somebody without legal cause be protected. But restricting purchases and possession for any but convicted felons will likely be out the window.
You have a point with regards to the 4th Amendment. However, the 1st Amendment contains no "reasonable" language, and yet it also contains reasonable limits, as you note.

There is equal wiggle room in the 2nd Amendment. The "right to keep and bear arms" is not the same thing as the "right to keep and bear any weapon." (It would, however, seem to make unconstitutional any attempt to outlaw carrying, as well as possessing, guns.) Just as "Congress shall make no law... abridging the freedom of speech" is not the same as "Congress shall make no law... abridging the freedom of any speech"
It seems highly unlikely to me that restrictions on the mentally ill, drunk, drug-addicted, and children, will be "out the window" just because the Supreme Court takes the cowardly route of agreeing with Lawrence Tribe that the 2nd Amendment protects an individual right. (As it happens, Tribe sees "reasonable restrictions" on this right in such a broad fashion as to allow upholding a complete handgun ban.)
I would maintain that Mr. Tribe is couching his true beliefs to be more politically palatable. It wouldn't be the first time.
On the first part. We must interpret the second amendment with in the context and time that it was written.

First, who was, by definition " A well regulated militia? " They were, the at the time, members of individual communities each having their own guy loosely in-charge. At the ready to defend that community and if at the request of another community, to help out.

Second, " Being necessary to the security of a free state " does not infer or refer to any governmental entity such as "The State of Massachusetts", but rather to a state of being. To have a feeling of security in your home or in your community.

The third and forth clarify and make lawful a citizens RIGHT to posses ANY and ALL arms. They do not restrict or limit the type or style or who may or may not bear (carry) arms.

I would summit then that there is nothing within the second amendment that would allow any State or community to lawfully restrict or license anyone who wishes a gun! Any such statute would be contrary to the second amendment and there fore illegal!
"They do not restrict or limit the type or style or who may or may not bear (carry) arms"

What defined a citizen at that time?
da snoop.....WEBSTER...1: an inhabitant of a city or town; especially : one entitled to the rights and privileges of a freeman.
We ain't gonna get into a dumb semantics fight here are we?
No, no, no. I was just pointing a contradiction in your post.

SV: "On the first part. We must interpret the second amendment with in the context and time that it was written." and "The third and forth clarify and make lawful a citizens RIGHT to posses ANY and ALL arms."

Which, I believe, was basically land owning white males. I'm sure you would want to open that up a bit, maybe even include gays and lesbians?
Actually at the time THEY (queers) were tared and feathered and rode a rail outta town! As it should be!
And women and blacks, chinese, mexicans?
I don't want no renters to git their grubby hands on guns. < / sarcasm >
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