How the NRA Rewrote the Second Amendment: The Founders never intended to create an unregulated indiv

I plan to buy a tank and maybe of HIMARS system. Why not, that's my constitutional right, yeah?

 

Should I be able to own a nuclear bomb?

 

Thanks for posting this, @philnotphil. The current 2A group have zero idea of the historical perspective of the amendment and ignore half its verbiage. When I went to law school (UF,) the well settled interpretation was far different than the NRA fanboys of today would have you believe.

 

The Second Amendment consists of just one sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Today, scholars debate its bizarre comma placement, trying to make sense of the various clauses, and politicians routinely declare themselves to be its “strong supporters.” But in the grand sweep of American history, this sentence has never been among the most prominent constitutional provisions. In fact, for two centuries it was largely ignored.

I see three commas in that one sentence... but it looks more like two completely different sentences/statements to me. And it can be interpreted that way, obviously.

Maybe the second comma should be a semicolon instead... or a dash... or an ellipsis... or a period? Lol.

.

 

Dead on, and if anything, too charitable to the other side. In fact, I don't even like the "contemporaneous quote" hermeneutic of interpretation. It's plain from the structure of the Constitution was primarily response to avoid having a standing army. I've written about a few times previously unexplored. The only one I could find is linked below. It's pretty obvious. Unless you think we don't need a standing army, should not buy into the most recent arguments. The primary goal was to ensure that new federal government could not disable the system of state militias justify a standing army. You don't have to even battling quotations, but as this piece shows, they don't even win that argument.

Three other quick comments. First, and stealing this from Michael Kinsley, a hero in my youth, and, parenthetically, a penpal, as my wife found a few old response letters from him this past week while doing some cleaning, it's odd that the Second Amendment should not be read as to permit regulation, since all constitutional rights are regulated, even free speech (i.e. the need to get a parade permit, among many other things) when the Second is the only amendment, which by its words, explicitly invites intelligent regulation.

Second, I had not read Sandy Levinson's takes on the issue. I do respect him as I read a few of his books years ago. I need to get back to regularly reading Balkinization, a group blog where he posts regularly - Balkinization

I am familiar with Akil Reed Amar's argument, which I found incredibly unpersuasive. It's just hypertextual. Compares the use of the term "people" with the way the term is used in the guarantee of a jury trial in the Seventh Amendment, and resulting jury nullification, and therefore concludes it's an individual right. Doesn't even make sense in application. You don’t have a right to serve on a jury. Came up with some form of weird hybrid group/individual bulwark against tyranny right which didn't make a lot of sense in application. Again, all of this goes back to the desired anti-Federalist to avoid the federal government ever having a standing army.


Finally, I don't even want to debate this any more because it's futile. There's already 400 million guns out there. The culture is too rotted. Admittedly, sometimes cultural change can follow legal change as a normative signal, so perhaps I am being too cynical, which I almost always am. But I don't see any way for any current law to be much of a positive difference, and it just seems to rile up craziness and ultimately produce negative effects.

I've therefore surrendered on the issue, not because I think their arguments persuasive. Far from it. They're also ahistorical. But I think the whole debate is futile.


enough is enough...no more (Texas school shooting)

 

When the 2A was ratified, it applied ONLY to the federal system, not the states. Read it again with that critical bit of history in mind.

 

Even after Heller it was not selectively incorporated

 

And if the federal government does NOT explicitly forbid, it then that states can write their own laws? Is that your view of it?

Maybe the federal government at the time figured that all Americans can be part of the militia... like during the Revolutionary War. This makes the most sense given the structure of the sentence.

 

You could certainly see it over a few decades with the stand your ground laws, holding individuals liable for arrest up to the current errbody gets a gun stance.

The NRA went scorched earth cray cray after the HCI and Brady crazy activism period. Lots of lobbying, PR and AM radio to get us where we are.
Long strategic plan, like court packing, vs gender reveals and herding cats.

I personally find the states rights stuff comical. When you don’t get your way, states rights! Many’s things in the minutiae the founders could not see. Are we Europe or the United States. Everything is a balance.

 

"A well regulated militia". So....the Fed can regulate is how I read it

 

Lol... so you are against state's rights? Are you sure?

Yep, Sanctuary Cites... C'mon man. And legalized pot that is actually against federal law are a "state's right" joke.

You can't have it both ways, WC53.

 

What does "a well regulated militia" mean to you?

 

Get the long range himars. Use code LONGANDSTRONG for a free upgrade.

 

The state has a right to an army. Isn't the national guard under the guvnr? This is what happens when you feed and stack the court systems. You write society bending laws while the other two branches quabble and approve your recommendations. McConnell so fd this country by stealing those 2 picks. Dems gave us Hillary and begat us trump..

 

The primary purpose of the 2A, as drafted, was to allow folks the right to bear arms so as to eliminate the need for our new nation to maintain a standing army.

A standing Army was viewed suspiciously by the founding fathers and the 2A was intended to allow for a common defense if needed.

 

Makes sense because SCOTUS was so conservative in 2008!!

 

Similarly the Constitution prior to the adoption of the Second Amendment mentioned the militia twice. Once in Article I which specified that Congress has the power to federalize the militia and again in Article II specifying that the President following federalization would be the commander-in-chief of the militia implicitly with the same authority that he would have over the regular armed forces. Taken together it's obvious that the intent of the Second Amendment was not authorize ad hoc militias but rather to ensure the citizens participating regular militias, essentially state military organizations under the command of the governor, would have the right to keep and bear arms.

 

Absolutely!

 

Good stuff. Other contextual clues as to the original design not to have a standing army and substitute the state militias once federalized as land defense.

Among enumerated powers:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;


Congress "raises" an army but not a Navy, i.e., no standing Army, but for no more than two years at a time.

Congress can organize, arm and discipline the Militia, but states appoint officers and carry out the training:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Don't forget the Third Amendment too if we are looking at overall context in terms of the thinking of the times. The Brits forced the colonists to put up soldiers. You can't even be forced to put up a soldier!