Who Has The Right? The Militia or The People?

[john_marsten_1873]

this is the tool used to take our rights away even though it is deceitful to do so. also, there is more to this than that one sentence. other papers are in support of it. find those and read them. it makes everything about the 2a very clear.

As of today, it’s left up to interpretation. SCOTUS has plenty of cases ahead of them to change or solidify the interpretation but they won’t. We’ve seen also nothing meaningful from congress nor POTUS/cabinet. For something so “clear”those we’ve chosen to represent us clearly have other priorities.

And it defeats the argument that the current language of the clear (and uninterpretable) if you have to suggest “other papers” or even the intent of the founders. With argument that OP is making it should stand on its own, but still, he or she presents and argument of how the 2A should be interpreted.

Still, I’m genuinely interested in the thought experiment of “If I had to write it for tomorrow, how might I do it.”

 

[john_marsten_1873]

Indeed, and I was kind of alluding to it in my other post but laws and regulations really need to be dynamic because situations change and it's very hard to write in plain text how things should be. For instance we could say "the people have the right to bear arms for their own self defense, this does not include weapons of war", so does that mean if the military moves away from 556 that it's no longer a weapon of war? War is fought with drones these days as much as personal arms. But when drones advance to be fully autonomous does that mean that human controlled defense drones are allowed for personal use and self defense? What people consider "reasonable" is a moving target. Man, I feel like I didn't get any closer to answering the question but I do agree that it's interesting.

It’s cool! You hit the nail on the head here around both the obvious (and frustrating) contradictions of our government and the difficulty I have in answering the question myself.

 

[john_marsten_1873]

It seems that many Americans — including some on this gun forum — are confused by the explanatory clause at the beginning of the 2nd Amendment, and don’t seem to understand the full nature and scope of the constitutional guarantee that the right of the people to keep and bear arms shall not be infringed.

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Who has the right to keep and bear arms? The militia or the people? Perhaps this will help . . .

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Just some food for thought.

I think you clearly illustrate the problem with question you’re asking: “full nature and scope” suggests you believe there’s more to the 2A than what is written and while asserting there’s a “guarantee” you feel it necessary compare it a to “balanced breakfast” - which in and of itself is highly up to interpretation. How is that “balanced”?

 

[MK6M9]

As of today, it’s left up to interpretation.

no. they use that as a tool. we are allowing these california politicians to do this to us. it is literally that simple

 

[Gravel]

no one here is arguing that we like it but the law works in a specific way and the 2a isn't worth the paper it's printed on if the supreme court disagrees with your plain text reading. At this point the SC hasn't even defined "arms" let alone what "sensitive places" or "unusually dangerous weapons are".

While I fully understand your point, and recognize how (screwed up) the legal system works, I stand by my statement.

The continuing re-interpretation of many/most laws by the attorney (aka, political) class has diminished our constitutional protections in way too many cases. It’s rare and delicious when we make a small step back to the plain text reading.

I don’t trust anyone who complicates simple things for their benefit.

 

[RustVendor]

While I fully understand your point, and recognize how (screwed up) the legal system works, I stand by my statement.

The continuing re-interpretation of many/most laws by the attorney (aka, political) class has diminished our constitutional protections in way too many cases. It’s rare and delicious when we make a small step back to the plain text reading.

I don’t trust anyone who complicates simple things for their benefit.

I get what you are saying but from the plain text reading, what is an arm? A glock? a missile launcher? armed drone? are there any places that you should not be allowed to be armed? These are all the real questions that weren't considered in the text of the second amendment when it was written 225 years ago. As I said in another comment, the founders and framers expected us to be amending the constitution more often than we are now. That's the real issue, the constitution isn't a document set in stone it was designed to be updated.

 

[BillSmith]

The goal of the 2nd Amendment is two-fold. One is to encourage the people to be armed to defend the nation. The other is to allow the people to overthrow an oppressive gov't.

Therefore, if the gov't comes to my door to oppress me with, let's say a police force using a surplus military half-track, then I should be able to counter with a bazooka/RPG. Where the gov't attempts to suppress the populace through greater firepower, the reason for the 2nd Amendment should be clear.

Like for like. Even if the gov't doesn't like it.

 

[ikeo1]

Because an armed, trained citizenry is necessary to keep a free society secure,

A lot of people don't realize this is our primary goal... We don't try to be everything for everyone. A lot of people will claim self righteousness and holier than thou whilst behind ye keyboard but we legitimately educate and train people in our narrow scope. While we have some people just talk about what we do and the people here.

 

[john_marsten_1873]

no. they use that as a tool. we are allowing these california politicians to do this to us. it is literally that simple

Just ask SCOTUS with a 6-3 conservative majority

 

[Gawernator]

Just ask SCOTUS with a 6-3 conservative majority

Hallelujah. Those 3 are hell bent on taking away our rights

 

[treelogger]

"Smoked brisket being delicious, the right of the people to raise livestock shall not be infringed."

• Can you raise chickens? The prefatory clause only talks about brisket, which is always made from cattle. How about pigs? Froglegs in a garlic sauce?
• Can you raise blue whales? There is absolutely no practical way to feed them, or to keep them in pens.
• Can you raise lions and mambas? They are extremely dangerous, and keeping them creates a grave danger to people.
• Can you raise viruses? They are not edible at all.
• Can you raise animals whose purpose is absolutely not to be eaten, such as miniature poodles?
• Can you do other things with animals, like raise them for riding on, or monetize videos of them on YouTube?
• Can you raise a Texas-size steer in an apartment on the 34th floor in Manhattan?

I don't pretend to have answers to these questions. What I'm pointing out that a sentence that seems clear at the surface is actually not clear at all, and all law (including the constitution) needs interpretation. In this country (as in all democracies with the rule of law) we have mechanisms to do that, and it is the courts. The decisions the courts make are usually not liked by everyone; that's the price of living in a pluralistic society. Yet they apply to everyone, and we have to respect them.

Another point is that the original sentence I quoted is highly unclear and badly written. Laws don't need to be justified in their text, so what is the prefatory clause even there, and what does it mean? Is it a restriction? Why are the words "people", "raise" and "livestock" not defined at least a little clearly? Instead of talking about specifics, why doesn't the law state the principle that it is trying to implement, for example a basic right to eating.

It absolutely doesn't help that political extremists then try to put their own interpretation in. One side might say that clearly all animals are legal for any purpose at any time, since the founding father mentioned one little aspect of them in writing. There are plenty examples in this thread of such ridiculous interpretations. The other side might claim that based on their religious principles, cows are sacred, therefore this law must be obsolete. A third side might claim that the law clearly only applies to cattle raised for brisket, not for hamburger, milk, or hides, and definitely not to any other species.

 

[GoldensRule]

It's fortunate the SCOTUS didn't attempt to overthrow the birthright citizenship amendment (14th) because that would have put the 2nd amendment on the table as the main course. So many people can be so shortsighted about such things.

 

[adrkwan]

It's fortunate the SCOTUS didn't attempt to overthrow the birthright citizenship amendment (14th) because that would have put the 2nd amendment on the table as the main course. So many people can be so shortsighted about such things.

Yup. The unintended consequences are often ignored until they affect something you care about personally.

 

[GoldensRule]

Yup. The unintended consequences are often ignored until they affect something you care about personally.

Damn! I love that Corgi!

 

[No_glonks]

It's fortunate the SCOTUS didn't attempt to overthrow the birthright citizenship amendment (14th) because that would have put the 2nd amendment on the table as the main course. So many people can be so shortsighted about such things.

as much as I am against birth tourism, and my cousin did exatcly that, can't agree more

 

[RustVendor]

It's fortunate the SCOTUS didn't attempt to overthrow the birthright citizenship amendment (14th) because that would have put the 2nd amendment on the table as the main course. So many people can be so shortsighted about such things.

As a legal argument I agree with you but it really is just going to depend who it s on the court. The Bruen standard and Originalism so flimsy that a different court makeup could easily reverse those precedents. But to your point, they would have been very happy to disregard the "plain text reading" of the 14th and turn around and defend it on a other topic that they like.

 

[GoldensRule]

As a legal argument I agree with you but it really is just going to depend who it s on the court. The Bruen standard and Originalism so flimsy that a different court makeup could easily reverse those precedents. But to your point, they would have been very happy to disregard the "plain text reading" of the 14th and turn around and defend it on a other topic that they like.

What has our nation become when the once most revered institution in the USA, The SCOTUS, is little more than a refuge for extremely corrupt jurists who will vote in whatever manner they are directed by their financial backers? Talking about you Thomas, Alito and Kavanaugh.

I fully expect that Bruen will be put through the shredder of history and, sooner rather than later. Authored by Clarence Thomas, it is nothing more than an exercise in picking and choosing historical facts to fit a desired outcome. Additionally, Bruen is the near ultimate example of the courts gaslighting the American public. Stripping away centuries old licensing frameworks that make our communities safer.

Anyone who believes Bruen is a tablet handed down from on-high only needs look at what happened to Roe v. Wade.

 

[adrkwan]

As a legal argument I agree with you but it really is just going to depend who it s on the court. The Bruen standard and Originalism so flimsy that a different court makeup could easily reverse those precedents. But to your point, they would have been very happy to disregard the "plain text reading" of the 14th and turn around and defend it on a other topic that they like.

Originalism is an interesting legal theory but it has always been inherently subjective. I like Bruen as the former "means ends" balancing test was even more subjective and deferential to the government. If we do have to abandon Bruen, I would like to move to strict scrutiny.

 

[Hamburger Monster]

I get what you are saying but from the plain text reading, what is an arm? A glock? a missile launcher? armed drone? are there any places that you should not be allowed to be armed? These are all the real questions that weren't considered in the text of the second amendment when it was written 225 years ago. As I said in another comment, the founders and framers expected us to be amending the constitution more often than we are now. That's the real issue, the constitution isn't a document set in stone it was designed to be updated.

An "arm" is any of the weapons or tools used offensively or defensively that is used to equip a fighting or defending force. "Arm" being short for "armament".

"what is an arm? A glock? a missile launcher? armed drone?" Yes all of the above

"are there any places that you should not be allowed to be armed?" Historically, the only places tolerated at the time of the founding and ratification of the 2A was placed that the government provided armed security or protection in a building or location that was deemed "sensitive" like a courthouse. Therefore, if a government facility is not providing check points with armed guards or security, we would be allowed to bring our own means of protection and security

Actually, the founders tried to make it very hard to amend the constitution and the bill of rights. They put in a lot of checks and balances. Three equal branches of government. State representatives. electoral college, etc. even the framework of what the government is allowed to do. Instead of a list of what they aren't allowed to do, they flipped this on its head and listed only the things it (the government) can do. Anything not listed as allowed for the federal goes down to the state. If it's not listed as allowed for the state then it goes to the people. That was to intended severely restrict the power of the government.

And because the founders didn't want the constitution and bill of rights too easily changed. The made it difficult with a constitutional convention. That would assure that if there was something so important that enough states agreed it needed amending, there was an avenue. They wanted to make sure that President couldn't at a stroke of a pen, or a simple majority of the legislator could restrict our rights over night. It was never meant to be a "living breathing" document that gets updated with every new generation, interpretation or change in administration.

 

[RustVendor]

An "arm" is any of the weapons or tools used offensively or defensively that is used to equip a fighting or defending force. "Arm" being short for "armament".

"what is an arm? A glock? a missile launcher? armed drone?" Yes all of the above

"are there any places that you should not be allowed to be armed?" Historically, the only places tolerated at the time of the founding and ratification of the 2A was placed that the government provided armed security or protection in a building or location that was deemed "sensitive" like a courthouse. Therefore, if a government facility is not providing check points with armed guards or security, we would be allowed to bring our own means of protection and security

Actually, the founders tried to make it very hard to amend the constitution and the bill of rights. They put in a lot of checks and balances. Three equal branches of government. State representatives. electoral college, etc. even the framework of what the government is allowed to do. Instead of a list of what they aren't allowed to do, they flipped this on its head and listed only the things it (the government) can do. Anything not listed as allowed for the federal goes down to the state. If it's not listed as allowed for the state then it goes to the people. That was to intended severely restrict the power of the government.

And because the founders didn't want the constitution and bill of rights too easily changed. The made it difficult with a constitutional convention. That would assure that if there was something so important that enough states agreed it needed amending, there was an avenue. They wanted to make sure that President couldn't at a stroke of a pen, or a simple majority of the legislator could restrict our rights over night. It was never meant to be a "living breathing" document that gets updated with every new generation, interpretation or change in administration.

Before the constitution was ratified there was a large debate on making amendments prior to ratification or after. As a result, article V allowed a process of amendments. The 2nd amendment is an amendment, if they didn't want the constitution to be updated they could have included the bill of rights in the original document. They included article V because even at inception they had changes to make, you think they expected to only make changes for the next 10 years and then never again? George Washington's inaugural address to the nation in 1789 included a paragraph on amendments, he isn't definitive on the topic and basically says "I leave it up to you to decide if amendments are good or detrimental", mind you this is before the Bill of Rights was ratified. But to the point, I don't think that anyone involved in writing or voting on the bill of rights would have expected it to remain further un-amended if there were such large holes in the interpretations. It's essentially decided by 5 people at this time. And they have already decided that missile launchers are NOT arms that the people can possess without actually giving a good definition of what arms are.