Posted on 03/11/2008 9:41:13 AM PDT by kiriath_jearim
One week from Tuesday, the United States Supreme Court will hear arguments about the right to bear arms. It will be the first time in a half-century that the high court will take up a gun rights case.
The case is called District of Columbia v. Heller, and it deals with a local ordinance banning Washington D.C. citizens from owning handguns.
What the Supreme Court will decide is whether that law violates the rights of citizens who want to keep firearms in their homes, but are not affiliated with any state regulated militia.
A week and a half ago we interviewed two leaders of the American Civil Liberties Union for an upcoming edition of Face the State. National ACLU legal director Steve Shapiro does not believe the Supreme Court will dramatically change gun rights, and neither does Montana's ACLU director Scott Crichton.
Scott Crichton: "The bottom line to me is this is not a threatened right in Montana. I doubt it ever will be. There is a consensus about the importance of our state constitution, which actually is stronger than the Second Amendment of the U.S. Constitution."
Steve Shapiro: "I don't think it's going to change the fundamental equation. I think at the end of the day, there are going to be guns in this country. At the end of the day, there's going to be some measure of gun regulation in this country, however the Supreme Court decides that Second Amendment question."
Crichton says that the state ACLU has discussed Second Amendment rights a couple of times in the last 20 years, and has split on just what it means. Especially the reference to a well-regulated militia.
Meanwhile, Attorney General Mike McGrath has made the state of Montana's position clear: It supports the individual right to own and bear arms.
The ACLU is most certainly not split on what the Second Amendment means. They believe "the People" in the Second Amendment (ratified in 1791) means "the National Guard" (created by an act of Congress in 1903).
From the Heller Media Briefing Book:
Doesn't the "well-regulated" phrase restrict the right to bear arms to only the organized militia?
There is considerable debate on this, though proponents of the standard model interpretation claim it makes no difference (their argument is that the militia is composed of all people, and at worst it is government's job to ensure they are ready for service).
The phrase "well regulated" has a historical base, which will be an important consideration. The phrase first appeared prominently in a 1698 treatise by Andrew Fletcher titled A Discourse of Government with Relation to Militias. This work was very popular among American revolutionaries, and it is highly likely that most of the founders had read it.
In Fletcher's book, the term "well regulated" was equated with "well-behaved" or "disciplined". This traditional use of the word "regulate" creates confusion with the modern use of the word which means "to control" (as used in the phrase "government regulation"). The historical origin of the phrase, as well as the contemporaneous use of the word when the Bill of Rights was drafted, indicates that the Second Amendment was not created to empower government control over a right to keep and bear arms, but to ensure some form of citizen soldiery through organizational powers.
David Hardy claims that this meaning makes sense within the context of the Second Amendment. He notes that the phrase was widely used during colonial times, and even appeared in such concepts as gentlemen having "well-regulated tastes". Noting that "well-regulated" meant "orderly", then he concludes:
"The flow of the Second Amendment becomes utterly clear: Law-abiding [wellregulated] gun owners being necessary to the security of a free State ...."
I think it’s the peoples right to protect themselves against a well regulated militia.
I think there is also insight into the the meaning of the word “regulated”, as used in the second amendment, that can be drawn from the usage of “regular” to describe the professional soldiers of the era. Like you said, this would indicate that “regulate” has to do with training as opposed to restricting.
Actually, it may not be so important.
I was surprised to read in one of the Heller case briefs that the nature of the type of language used in the Second Amendment has been the subject of many court cases, some of which pre-date the Constitution. Courts have decided that prefatory language such as the "militia clause" does not limit the independent clause.
The fact that lack of infringement enables "a well-regulated Militia" is informational and can be used to understand that the protected right includes Militia service, but the dependent clause cannot be used to limit the scope of the independent clause.
This would mean that the scope of the Second Amendment protection is the same as "the right of the people to keep and bear arms", independent of any usefulness to a Militia.
The Miller Decsision was wrong, poorly decided, and needs to be overturned.
I think this case may have farther reaching implications due to the taking of a “mere” right by draconian regulation.
Essentially the desk jockeys will be able to say guns are allowed just that the restrictions make it physically impossible. (ie in order to buy a gun you must have a license, if you don’t have a gun you can’t have a license. only far more complicated)
ping
There's one thing I'm confident about. If the framers intended for only the military to keep and bear arms, the 2nd amendment would not read as it does.
The only ambiguity in the language of the Second Amendment is that found by talking heads, stuffed shirts and empty suits who have taken it upon themselves to grab control of our lives in any way and to any measure possible. These challenges to the Second Amendment, and indeed firearm regulation broadly, are only attempts to gain greater control over our lives, and our freedoms.
There is no ambiguity in the language of the Second Amendment for any of the tens of millions of people who choose to read it, as an exercise in English language.
The tagline says it all.
Law-abiding? Where in the world did that come from? Does one need to be law abiding to exercise their First Amendment right? How about their Sixth Amendment rights? Do you need to prove you are “law-abiding” to retain your rights… as you are on your way to a trial? If so we would have lost the entire Bill of Rights a looooong time ago.
I have never understood the perverse attachment of the term “legal” or “lawful” to commentary regarding the meaning or intent of the Second Amendment. Yet folks do it over and over. The term legal/lawful/law-abiding appears nowhere in the Second Amendment. Nor does it appear in the other nine.
In regards to what Mr. David Hardy is apparently trying to say is this…
"The flow of the Second Amendment becomes utterly clear: Proficient or well-trained [wellregulated] gun owners being necessary to the security of a free State ...."
When the call goes out for the militia, will they open the armory and hand us a brand spankin' new M-16 and a .45? Didn't think so.
The Bill of Rights refers to individual Rights, not collective rights.
HAHAHAHAHA! Yea, that is a good one.
I don't see the need for you to put your words in his mouth. I understand what he is saying and I understand what you are saying. They are not the same thing. No big deal. They both have their own merits.
It means to be as uniformly supplied and equipped as possible, like the regulars.
The government should supply us all with battle rifles of the best quality possible. We are obligated to make up the rest as best we can.
Works for me!
That would be the National ACLU. You'll notice that the quote involved the Montana State ACLU, not the national. State ACLUs are split. But none of them give real strong support to the notion that the "right of the people" and "shall not be infringed" mean exactly what they say.
At bottom the ACLU was formed to support communists and socialists as well as war protestors (WW-I). It hasn't strayed far from it's roots. Communists like an armed proletariat, until they take power that is.
A well regulated clock keeps good time. A well regulated appetite provides enough, but not too much nourishment to the body. A well regulated firearm shoots to the point of aim. (As lates as WW-II, and probably Korea, fighter pilots would choose how they wanted their gun regulated. Some choose to have then all converge on the same point a few hundred yards in front of the aircraft, others preferred that they converge in pairs at different ranges, say 100, 200, 300 yards, or some such).
You can look up the term "well regulated in pre-1800 dictionaries and the examples will be similar to the "well regulated appetite" (which might refer to something other than eating!). The following list, all taken from the Oxford English dictionary of the year(s) indicated was found at The Constitution Society:
1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
1714: "The practice of all well-regulated courts of justice in the world."
1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected
The National ACLU will NOT be taking a stand on this. Thier version of “civil liberties” applies only to perverts and nazis. Regular citizans can lump it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.