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>gun rights derive from the Constitution Many people conveniently leave out the "well regulated militia" part of the second amendment.
by minikites 7y ago
>gun rights derive from the Constitution
Many people conveniently leave out the "well regulated militia" part of the second amendment.
- googlesux 7y agoMaybe you don't understand what a prefatory clause is? But it's a good talking point.
- sigzero 7y agoMeaning what? The SCOTUS has ruled several times that the individual right to bear arms is separate from the "militia" statement and both are covered in the 2A.
- Ididntdothis 7y agoWhy is the phrase "well-regulated militia" in there then? Is it just fluff that can be ignored?
- ryeights 7y agoWell, you can read the Supreme Court opinion to find out exactly why: https://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962738 https://supreme.justia.com/cases/federal/us/554/570/#tab-opi... In short, the clause is there as a justification/motivation, and not a precondition, for the right to bear arms.
- Pinckney 7y agoIs pornography uncopyrightable because it's not a "science or useful art"? (I.8.8)
- Ididntdothis 7y agoI don't think that compares.
- jdkee 7y agoNo. You are confusing patent law with copyright law. And first amendment law with copyright.
- rayiner 7y agoEugene Volokh has done a pretty thorough study of this: http://www2.law.ucla.edu/volokh/common.htm http://www2.law.ucla.edu/volokh/common.htm > The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.
- Turing_Machine 7y agoryeights gave a cite below, but consider this: If the First Amendment had been written as "A well-educated legislature being essential to the governance of a free state, the right of the people to keep and read books shall not be infringed", you would argue, what, exactly? That only the legislature had the right to books? That only "well-educated" people had the right to books? No, you wouldn't. Neither would anyone else, because that would be a tortured interpretation of the language.
- yongjik 7y agoThis is a really weird argument, considering that the First Amendment is emphatically not written as such, and that's what this debate is about: maybe there's a reason why such a phrase appears in 2A but not in 1A, or maybe there's none, but you're begging the question.
- Ididntdothis 7y agoIf the first amendment was written that way I think we shouldn't just ignore the phrase "well-educated". Otherwise you can choose to ignore other sections too. Either all words have meaning or they don't. You can't pick and choose.
- robcohen 7y agoThis is a horse that has been beaten to death. It’s well established what militia means. Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.[1] [1] https://en.m.wikipedia.org/wiki/Militia_(United_States) https://en.m.wikipedia.org/wiki/Militia_(United_States)
- brewdad 7y agoSo we should be confiscating guns on one's 45th birthday? Probably not all that effective, but it's a start I guess.
- robcohen 7y agoAlternatively, you can just repeal the second amendment. I’m unsure why anti-gun advocates don’t just argue this. The constitution can be changed. Justice Stevens argued this in an op-ed: https://www.google.com/amp/s/www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.amp.html https://www.google.com/amp/s/www.nytimes.com/2018/03/27/opin...
- pnako 7y agoYou can certainly try to do that.
- melling 7y ago“In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.” During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
- jdkee 7y agoNo. “Well regulated” in the context of the 2A means in good working condition. The militia, which is every male between the ages of 18 and 45, shoukd have a working weapon. Legal “regulations” has nothing to do with it.
- enraged_camel 7y ago>>“Well regulated” in the context of the 2A means in good working condition. This is the first time I'm hearing of this "good working condition" definition.
- finnthehuman 7y agoDefinitions and case law surrounding 200 year old text aren't immediately intuitive from the layman's reading.
- anigbrowl 7y ago[citation needed]
- ryeights 7y agohttps://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962738 https://supreme.justia.com/cases/federal/us/554/570/#tab-opi... Ctrl-F "well-regulated"
- jakeogh 7y agoPlease take a moment to listen to the 2008 Heller vs DC decision: https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/07-290/20080626o_07-290.ogg https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/... You might change your mind.
- minikites 7y ago>Pulitzer Prize-winning American historian Joseph Ellis criticized Scalia's Heller decision as political agenda disguised as originalist principles: "If Heller reads like a prolonged exercise in legalistic legerdemain, ... that is because Scalia's preordained outcome forced him to perform three challenging tasks: to show that the words of the Second Amendment do not mean what they say; to ignore the historical conditions his originalist doctrine purportedly required him to emphasize; and to obscure the radical implications of rejecting completely the accumulated wisdom of his predecessors on the court."
- jakeogh 7y agoA void criticism. Translates to nothing of substance. Interesting in the context of that recording; Ellis (a proven liar who claimed to have been a platoon leader in Vietnam) really has nothing to say.