What Does the Second Amendment Really Say?

[newyorkguy]

Conditions today do not require all able-bodies citizens to muster in defense of the Nation, but can you say, conclusively and absolutely, that the US will NEVER need that again?

I don't see how the word "conditions" changes anything. It seems pretty clear to me you're indicating that we should interpret the Second Amendment as conferring an individual right to keep and bear arms for purposes of national defense. You also said "again." When was the first time the U.S. required all able-bodied citizens to individually muster for the defense of the nation?

If you weren't referring to the rights and obligations contained in the Second Amendment what are you referring to? Why in this thread?

Yep. That's part of the resilience in the system. Get to work if you want it changed.

It's already being changed. In fact we're on the threshold of seeing it reinterpreted to confer the right for all law-abiding (not necessarily able-bodied) citizens to have the right to carry a handgun for self-defense.

 

[newyorkguy]

Essentially the old state militias are today's National Guard. Every state has one and the federal government can not order them disbanded.

"Essentially" does not equal "is."

Are we playing word games now? From the U.S. Army National Guard website.

Legal Basis of the National Guard

The National Guard's charter is the Constitution of the United States. Article I, Section 8 of the U.S. Constitution contains a series of "militia clauses," vesting distinct authority and responsibilities in the federal government and the state governments. These clauses and follow-on legislation have sculpted the Guard as you see it today. Here are summaries that will help you understand how the Guard came to be what it is today.

 

[Belz...]

Yep. That's part of the resilience in the system. Get to work if you want it changed.

I'm not an American.

 

[Dr. Keith]

Yep. That's part of the resilience in the system. Get to work if you want it changed.

The first part of the amendment has already been removed via case law. No need to go through the amendment process. The deed is done and we are just taking a look at the bones.

 

[Pope130]

No matter what else it does, the Second Amendment never required that all able-bodied citizens must muster in defense of the United States.

Essentially the old state militias are today's National Guard. Every state has one and the federal government can not order them disbanded.

Yes, the Militia includes, but is not limited to, the National Guard.

USC Title 10 defines the Militia:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

 

[newyorkguy]

USC Title 10 defines the Militia:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

This is from the Militia Act of 1902 which replaced the Militia Act of 1792. The primary purpose of the 1902 Act, which was an outgrowth of problems encountered mobilizing troops during the Spanish-American War of 1898, was I believe to set terms under which state National Guard units could be federalized. To give the President the power to call up state National Guard units

Also note this is from the US Codes. This Act gives the President the right to call up all able-bodied men between ages 17-45 to...

Nobody knows exactly what it means because the bill is not clear on what it provides for and it has never been implemented.

 

[newyorkguy]

This is from an article in Forbes last month-

For a couple of centuries, you might be surprised to learn, the Supreme Court didn’t say exactly what the Second Amendment means. As far as [former SCOTUS Justice John Paul] Stevens can tell, “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.” He recalls a colorful remark on the topic by the late Warren Burger, who served as chief justice from 1969 to 1986. Responding to the NRA’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, Burger, a lifelong conservative, remarked during a television interview in 1991 that the amendment “has been the subject of one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.” Link

 

[tyr_13]

The 14th Amendment makes the highlighted moot, on top of others including other current and former justices disagreeing (while others agree).

I think him calling it a 'fraud' is dishonest in and of itself. People honestly hold the view and support it with historic facts.

 

[newyorkguy]

“federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”

The 14th Amendment makes the highlighted moot...

How does the 14th Amendment make it moot? What do you know that Justice Stevens doesn't know?

 

[tyr_13]

How does the 14th Amendment make it moot? What do you know that Justice Stevens doesn't know?

I barely know what I know, and I cannot know what things Justice Stevens knows, and therefore couldn't tell you what he doesn't know either. What he's leaving out of this argument might even be addressed in the book he's written.

That the 14th Amendment, along with a lot of other things, incorporated the Bill of Rights to the States. So saying that the 2nd Amendment (or any of the Bill of Rights) didn't limit what states can do doesn't matter now because even if true it isn't after incorporation.

 

[newyorkguy]

I think this was Stevens' point, that until McDonald the Second Amendment HAD NOT been incorporated by the Fourteenth Amendment.

In a 5-4 decision, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation. Link

I still can not understand how anyone can deny that in recent years the scope of what the Second Amendment confers has drastically changed. I think that is essentially Justice Stevens' point.

 

[tyr_13]

I think this was Stevens' point, that until McDonald the Second Amendment HAD NOT been incorporated by the Fourteenth Amendment.



I still can not understand how anyone can deny that in recent years the scope of what the Second Amendment confers has drastically changed. I think that is essentially Justice Stevens' point.

Because it hasn't. The scope of what it confers is mostly the same. That states and localities are now held to the same rule changes the scope of who is restricted by it, but not the scope of what it confers. That's still 'the right to keep and bear arms'.

Women's suffrage didn't change the scope of what voting confers, it changed the scope of who could vote.

 

[newyorkguy]

Women's suffrage didn't change the scope of what voting confers, it changed the scope of who could vote.

So changing voting laws that prevented half the population from voting to allowing all adults to vote, you're arguing that was not a fundamental change and an expansion of rights?

I guess I'd have to say I don't agree.

Back to the Second Amendment. Heller, McDonald, Aguilar, have certainly changed the legal definition of the SA, have they not? What was illegal a few years ago -- and could land you in jail -- is now perfectly legal.

Are we all clear on what the word scope means?

 

[tyr_13]

So changing voting laws that prevented half the population from voting to allowing all adults to vote, you're arguing that was not a fundamental change and an expansion of rights?

I guess I'd have to say I don't agree.

That's not what I said, nor is it what you said.

Back to the Second Amendment. Heller, McDonald, Aguilar, have certainly changed the legal definition of the SA, have they not? What was illegal a few years ago -- and could land you in jail -- is now perfectly legal.

No it did not change the legal definition of the 2nd Amendment, it found that the DC gun law ran afoul of the 2nd Amendment and that the 2nd Amendment was incorporated through the 14th.

Are we all clear on what the word scope means?

'Scope' isn't the cause of confusion, but the extra 'what it confers' makes your statement incorrect. If you had only said 'scope has expanded' one could assume that you were correctly talking about the scope of what levels it is applied at but because you were specifically talking about what it confers, you were not.

 

[newyorkguy]

No it did not change the legal definition of the 2nd Amendment, it found that the DC gun law ran afoul of the 2nd Amendment and that the 2nd Amendment was incorporated through the 14th.

First, I think the incorporation decision was part of McDonald not Heller.

Second, for thirty-two years the D.C. handgun ban stayed on the books and was enforced. People were arrested, tried and convicted under the law. In 2008 the law was overturned. If it had been overturned as soon as it went on the books I would agree: the legal definition of the Second Amendment had not changed. Since the law stood for three decades until 2008 I think that shows the legal definition has changed. That seems obvious to me.

I've demonstrated that at least two former Supreme Court judges agree, SCOTUS is expanding the rights conferred by the Second Amendment. That federal courts previously saw the SA as conferring a collective right not an individual right. I think I'll accept their opinion.

 

[tyr_13]

First, I think the incorporation decision was part of McDonald not Heller.

Second, for thirty-two years the D.C. handgun ban stayed on the books and was enforced. People were arrested, tried and convicted under the law. In 2008 the law was overturned. If it had been overturned as soon as it went on the books I would agree: the legal definition of the Second Amendment had not changed. Since the law stood for three decades until 2008 I think that shows the legal definition has changed. That seems obvious to me.

That's not an argument that the legal definition of the 2nd Amendment has changed, let alone that it has drastically changed in scope of what it confers. It's a non-sequiter. 'This law that was around for a long time was overturned, therefore the legal definition of the 2nd Amendment changed.' That would only work if it had previously been upheld by a previous Supreme Court ruling that was changed by another, and sometimes not even then if different grounds were used.

I've demonstrated that at least two former Supreme Court judges agree, SCOTUS is expanding the rights conferred by the Second Amendment. That federal courts previously saw the SA as conferring a collective right not an individual right. I think I'll accept their opinion.

No you haven't. Their words don't match what you're saying, and that's an appeal to authority anyway. Again, other judges disagree.

 

[newyorkguy]

I would argue that no two persons are more responsible for redefining the Second Amendment than Antonin Scalia and Alan Gura. Everyone knows who Scalia is but few people know who Alna Gura is.

Alan Gura is a Washington D.C. lawyer and gun rights litigator. He serves as legal counsel for the Second Amendment Foundation (SAF), a Bellevue Washington-based anti-gun control group with deep pockets. SAF financed, and Alan Gura litigated, both the Heller case which overturned a D.C. handgun ban, McDonald (which overturned the Chicago handgun ban) and Moore, the Illinois case that resulted in overturning the state's ban on the carry of handguns.

Having established a citizen's right to carry a handgun Gura is now targeting states that require applicants to show a special need for carrying a handgun. Gura argues that the right to carry a handgun for self-defense is Constitutionally protected and absolute. That "any law abiding adult should be free to carry a firearm for self-defense." That an applicant should no more be required to show a "special need" than a citizen should be required to show a special need to exercise free speech.

However, Gura did suffer a recent setback.

He has been litigating to overturn Maryland's 'May Issue' requirement that applicants for a concealed carry permit must show "a good and substantial reason" reason why they should be permitted to carry a handgun. Gura and SAF want all states to be Shall Issue states where applying for a carry permit is largely a formality.

In the Maryland case (Woollard) SAF took court action "on the behalf" of two Maryland men whose application to carry had been turned down. The Fourth Circuit court upheld Maryland. The court found:

Maryland's desire to reduce handgun violence is a "substantial government interest", and that the "good cause" requirement is "reasonably fitted" to this interest in several ways, primarily by reducing the number of guns on the street, which the Court agreed with the Appellants provides several secondary effects that significantly reduce handgun violence and increase the ability of the police to distinguish criminals from law-abiding citizens. pdf link

SAF and Gura than appealed this decision to the Supreme Court. Last October the court declined to hear the case. Is it possible Scalia is having second thoughts about the wisdom of allowing "every law abiding citizen to carry a handgun for self-defense?" That local jurisdictions do have and should have the right to restrict who may carry a handgun?