2nd Amendment: the poll!

[Admiral Yi]

Back to our regularly scheduled programming.

After reading the text it seems to me the same problem still remains Joan.

OK, so there was a debate at the time whether the power granted Congress to "discipline" the state militia could potentially result in Congress disarming/emasculating/otherwise rendering impotent the militias.  So they crafted an Amendment which enshrined the right of states to form/maintain armed militias.  Again, this does not seem like a particularly difficult abstraction to put into words, but they ended up with the 2nd Amendment instead.

And I'm going out on a limb now, so feel free to correct me if I'm wrong, but isn't the Constitution fairly explicit in all other cases where the right it is guaranteeing confer upon states and not individuals?

[Admiral Yi]

You're not big on leg work are you, please don't tell me you've an MBA ? 

Seriously mongers, I was trying to be polite, but what fucking business is it of yours?

[Sheilbh]

I wouldn't. But I don't think it necessarily prohibits lots of gun control laws, so I don't think you'd need to.

Having said that I always avoid the US gun control threads because it's something where I think there's a cultural gap as much as anything. I'll never understand the US perspective on guns and chances are vice-versa, so it's just not terribly productive.

[Sheilbh]

And I'm going out on a limb now, so feel free to correct me if I'm wrong, but isn't the Constitution fairly explicit in all other cases where the right it is guaranteeing confer upon states and not individuals?

I think any constitution that's 4000 or so words long is hardly likely to be terribly explicit about anything. That's probably why it's so durable.

[Ed Anger]

I wouldn't. But I don't think it necessarily prohibits lots of gun control laws, so I don't think you'd need to.

Having said that I always avoid the US gun control threads because it's something where I think there's a cultural gap as much as anything. I'll never understand the US perspective on guns and chances are vice-versa, so it's just not terribly productive.

You are a good lad.

Since you're English, would you take Piers Morgan back? 

[grumbler]

(snip)
And I'm going out on a limb now, so feel free to correct me if I'm wrong, but isn't the Constitution fairly explicit in all other cases where the right it is guaranteeing confer upon states and not individuals?

The Constitution confer on the states only powers, not rights.  Or, more correctly, it enumerates and thus limits the powers of the federal government and leaves other powers to the states.

[Sheilbh]

Since you're English, would you take Piers Morgan back? 

Christ, no

Well done though, having Piers Morgan on national TV's like a 21st century Marshall Plan.

[grumbler]

It seems to me that the whole debate on the Second Amendment, and the source of the failure of the USSC to understand it, lies in the supposed ambiguity of the phrases "well-regulated militia" (for whose maintenance the Second Amendment is explicitly enacted) and "the people" (whose "right to keep and bear arms shall not be infringed"). 

The Federalist 29 supplies the only contemporaneous explanation I am aware of the "the well-regulated militia."  It states that a well-regulated militia (as opposed to the common militia, which is every able-bodied male) must "be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia."  Further, it "not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Now, as to the matter of "the people" whose rights are being protected, I need only point out that "the people" are the ones who "establish and ordain this Constitution for the United States of America."  If "the people" means every individual, then we are stuck with the dilemma of dealing with those individuals who do not ordain and establish the Constitution - the Freemen argument.  If the Constitution applies to only those individuals who ordain and establish it, then it cannot empower the taxation of those who don't.  If "the people" is a collective term and not an individual one, then the second amendment has no individual mandate.

It is clear to me that the various state national guards make up the "well-regulated militia" that is referred to in the Second Amendment, and that the Second Amendment has no individual mandate.  Thus, its retention or abolition has little or no bearing on the issue of gun control.

Now, individual citizens may well have a right to self-defense, even though that isn't an explicitly-defined right under the Constitution.  If the USSC ruled that this was true, and that guns are a necessary part of that right, i wouldn't have a problem with such an interpretation. 

The irony of the situation is that the very justices who would argue for such a non-enumerated right are the very ones that oppose the concept of the non-enumerated right of privacy espoused in Roe v Wade, so they cannot enjoy the courage of their convictions. 

[mongers]

You're not big on leg work are you, please don't tell me you've an MBA ? 

Seriously mongers, I was trying to be polite, but what fucking business is it of yours?

Well if you bring a certain preparation or are prepare to do some research mid-thread, it keeps the flow of the discussion going, without being sidetracked.   

[Admiral Yi]

Well if you bring a certain preparation or are prepare to do some research mid-thread, it keeps the flow of the discussion going, without being sidetracked.   

Christ.  Man up and face the fact you're a nag mongers.

[Neil]

And I'm going out on a limb now, so feel free to correct me if I'm wrong, but isn't the Constitution fairly explicit in all other cases where the right it is guaranteeing confer upon states and not individuals?

I think any constitution that's 4000 or so words long is hardly likely to be terribly explicit about anything. That's probably why it's so durable.

Do you feel that the reason that the EU failed was that it was overly precise and legalistic?

[The Minsky Moment]

And I'm going out on a limb now, so feel free to correct me if I'm wrong, but isn't the Constitution fairly explicit in all other cases where the right it is guaranteeing confer upon states and not individuals?

The Constitution doesn't confer rights on states. I'm not suggesting the 2nd amendment does that.  I am suggesting the 2nd Amendment is not an unbounded individual right with respect to the sale and carriage of firearms; it has to be understood in context and limited to that context.

To put the shoe on the other foot, although the Heller position (and more extreme versions) are supposedly based on originalist understandings of the intent and meaning of the drafters, the interpretation of the 2nd Amendment as being an individual right to purchase and possess firearms for personal use could not possibly be what was intended in 1789.  In fact, that meaning would and could only make sense in a 20th century context.  Prior to the 1930s, it would have been inconceivable that the federal government could restrict the sale or possession of firearms, because such activity was not understood to be within the definition of interstate commerce, and no other enumerated power could conceivably give the federal government power to enact such legislation.  (the first federal gun law was passed in 1934)

The only way the 18th/19th century federal government could pass a law regulating firearms usage would be to enact regulations relating to such employment by the state militias.  And that is why the 2nd amendment is drafted the way it is.

[MadImmortalMan]

The Federalist 29 supplies the only contemporaneous explanation I am aware of the "the well-regulated militia."  It states that a well-regulated militia (as opposed to the common militia, which is every able-bodied male) must "be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia."  Further, it "not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

The common militia is called the "unorganized militia" in the US Code. And yes, I think grumbles' paragraph here hits the point. I think the thinking surrounding having the unorganized militia keep arms at home was so that they would be skilled enough using them that they could become well-regulated in a relatively short amount of time and be able to compete against standing armies. Along with the fact that many of them used their own weapons in their military service.

[grumbler]

The common militia is called the "unorganized militia" in the US Code. And yes, I think grumbles' paragraph here hits the point. I think the thinking surrounding having the unorganized militia keep arms at home was so that they would be skilled enough using them that they could become well-regulated in a relatively short amount of time and be able to compete against standing armies. Along with the fact that many of them used their own weapons in their military service.

The thinking was that the organized state militia (now known as the National Guard) was the "well-regulated militia" that the Second Amendment was protecting.  The common militia was not useful (if you believe Hamilton knew what he was talking about) for the purposes which the Second Amendment was protecting - security against a Federal standing army.

[The Brain]

I don't really care what America does regarding gun control.