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Nobody who wrote the second amendment thought it allowed non-militia members to own weapons of war, yet here we are. At least with that argument, there’s liter

Nobody who wrote the second amendment thought it allowed non-militia members to own weapons of war, yet here we are. At least with that argument, there’s literal text (“A well-regulated militia”) supporting the point.

busterarm 3y ago
Writing for the majority, Antonin Scalia argued that the operative clause of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” codifies an individual right derived from English common law and codified in the English Bill of Rights (1689). The majority held that the Second Amendment’s preamble, “A well regulated Militia, being necessary to the security of a free State,” is consistent with this interpretation when understood in light of the framers’ belief that the most effective way to destroy a citizens’ militia was to disarm the citizens. The majority also found that United States v. Miller supported an individual-right rather than a collective-right view, contrary to the dominant 20th-century interpretation of that decision. (In Miller, the Supreme Court unanimously held that a federal law requiring the registration of sawed-off shotguns did not violate the Second Amendment because such weapons did not have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”) Finally, the court held that, because the framers understood the right of self-defense to be “the central component” of the right to keep and bear arms, the Second Amendment implicitly protects the right “to use arms in defense of hearth and home.” https://www.britannica.com/event/District-of-Columbia-v-Heller https://www.britannica.com/event/District-of-Columbia-v-Hell...
- sgarland 3y ago
  Well aware of Heller. Just as OP said SCOTUS went in the wrong direction for 1A, I similarly believe the Heller decision was incorrect. I’m not trying to start an argument on the legitimacy or lack thereof of decisions; I’m pointing out that if you want to play the originalist game, there are plenty of other examples that you may not like.
  - busterarm 3y ago
    But if you play that originalist game with the second amendment, you still have to contend with the other clause: “the right of the people to keep and bear Arms, shall not be infringed,”
    - sgarland 3y ago
      Which is clearly a dependent clause of the subject, “A well regulated militia.” Every other amendment in the bill of rights follows a similar structure. America had no standing army, and many of the founders did not want one. Hence, the need for a militia.
      - tivert 3y ago
        > Which is clearly a dependent clause of the subject, “A well regulated militia.” Every other amendment in the bill of rights follows a similar structure. I wonder if that means the lack in the US of official citizen militias dependent on private firearm ownership could be considered unconstitutional. IIRC, the National Guard is reckoned to be the militia, but that seems a little like BS to me. It seems pretty much to be a de-facto component of the federal military, complete with rotations to fight foreign wars, etc.
      - rayiner 3y ago
        The second part isn’t a dependent clause, just as a matter of grammar. The second amendment doesn’t say: “within a well organized militia, the right to bear arms shall not be infringed.” It’s a prefatory clause and an operative clause. The first explains the purpose, the second gives the rule. So you can certainly argue that the rule must be considered in the context of the purpose. But that still doesn’t get you where you’re going. Because personal firearms ownership certainly facilitates raising a militia if you need one.
- defrost 3y ago
  (2008) which answers the question of what Scalia thought the founders meant and what Scalia thought was permitted under the English Bill of Rights (1689). It doesn't address what the founders actually thought, nor how they'd respond to modern weapons in the hands of mass shooters.
  - busterarm 3y ago
    Volley guns, organ guns and early implementations like the Puckle gun long predate the founding of the US. The ribauldequin was what...14th century? Also they were certainly aware of early "artillery" weapons firing hundreds of arrows at once invented centuries earlier in China & Korea. In fact, European armies started embracing the use of rockets as early as the 1780s. These were educated men. They had an idea about how technology could improve and, more specifically, that technological development would first be applied to war.
rayiner 3y ago
They absolutely did think that. You’re overlooking that, at the time, the militia was “BYOF” (bring your own firearm). Federalist 46 has an extensive discussion on how European governments don’t trust their citizens with arms, and how a regular army wouldn’t be able to stand up to armed citizens: https://guides.loc.gov/federalist-papers/text-41-50 https://guides.loc.gov/federalist-papers/text-41-50. Once you remember that “militia” meant “calling up armed citizens into an organized fighting force” the text makes perfect sense. It says we need people to have personal weapons—especially weapons of war—so they can be called up into a militia. This is so obvious that the contrary view can only be the legacy of mid-20th century thinking when the bar was on the floor for old white guys. The framers were a bunch of people who had recently overthrown their government with the arms they had in their sheds. Of course that’s what they were getting at with the second amendment. A far better argument is that the second amendment isn’t incorporated against the states, because incorporation is kind of fake news. I also think that Heller suffers a bit from not going far enough in acknowledging that the second amendment is about overthrowing the government. It’s not really about self defense or handguns.
- sgarland 3y ago
  > A far better argument is that the second amendment isn’t incorporated against the states, because incorporation is kind of fake news. OK, I don’t think we’ll have any meaningful discourse here. Have a nice day.
- scotty79 3y ago
  I think the intention was for the militia to be well organized ahead of time and only then allowed to have guns. So furst you should gather bunch of people willing to listen to your orders and only then you all, as a group are allowed to own some guns. Nothing about where to keep them. Probably better to keep them at militia headquarters and issue them only when the time time comes. But actual militias are goddamn scary so government prefers to allow individual gun ownership that amounts to nothing except thinning the herd of trigger happy rednecks.
  - rayiner 3y ago

busterarm 3y ago

Writing for the majority, Antonin Scalia argued that the operative clause of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” codifies an individual right derived from English common law and codified in the English Bill of Rights (1689). The majority held that the Second Amendment’s preamble, “A well regulated Militia, being necessary to the security of a free State,” is consistent with this interpretation when understood in light of the framers’ belief that the most effective way to destroy a citizens’ militia was to disarm the citizens. The majority also found that United States v. Miller supported an individual-right rather than a collective-right view, contrary to the dominant 20th-century interpretation of that decision. (In Miller, the Supreme Court unanimously held that a federal law requiring the registration of sawed-off shotguns did not violate the Second Amendment because such weapons did not have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”) Finally, the court held that, because the framers understood the right of self-defense to be “the central component” of the right to keep and bear arms, the Second Amendment implicitly protects the right “to use arms in defense of hearth and home.” https://www.britannica.com/event/District-of-Columbia-v-Heller https://www.britannica.com/event/District-of-Columbia-v-Hell...

sgarland 3y ago
Well aware of Heller. Just as OP said SCOTUS went in the wrong direction for 1A, I similarly believe the Heller decision was incorrect. I’m not trying to start an argument on the legitimacy or lack thereof of decisions; I’m pointing out that if you want to play the originalist game, there are plenty of other examples that you may not like.
- busterarm 3y ago
  But if you play that originalist game with the second amendment, you still have to contend with the other clause: “the right of the people to keep and bear Arms, shall not be infringed,”
  - sgarland 3y ago
    Which is clearly a dependent clause of the subject, “A well regulated militia.” Every other amendment in the bill of rights follows a similar structure. America had no standing army, and many of the founders did not want one. Hence, the need for a militia.
    - tivert 3y ago
      > Which is clearly a dependent clause of the subject, “A well regulated militia.” Every other amendment in the bill of rights follows a similar structure. I wonder if that means the lack in the US of official citizen militias dependent on private firearm ownership could be considered unconstitutional. IIRC, the National Guard is reckoned to be the militia, but that seems a little like BS to me. It seems pretty much to be a de-facto component of the federal military, complete with rotations to fight foreign wars, etc.
    - rayiner 3y ago
      The second part isn’t a dependent clause, just as a matter of grammar. The second amendment doesn’t say: “within a well organized militia, the right to bear arms shall not be infringed.” It’s a prefatory clause and an operative clause. The first explains the purpose, the second gives the rule. So you can certainly argue that the rule must be considered in the context of the purpose. But that still doesn’t get you where you’re going. Because personal firearms ownership certainly facilitates raising a militia if you need one.
defrost 3y ago
(2008) which answers the question of what Scalia thought the founders meant and what Scalia thought was permitted under the English Bill of Rights (1689). It doesn't address what the founders actually thought, nor how they'd respond to modern weapons in the hands of mass shooters.
- busterarm 3y ago
  Volley guns, organ guns and early implementations like the Puckle gun long predate the founding of the US. The ribauldequin was what...14th century? Also they were certainly aware of early "artillery" weapons firing hundreds of arrows at once invented centuries earlier in China & Korea. In fact, European armies started embracing the use of rockets as early as the 1780s. These were educated men. They had an idea about how technology could improve and, more specifically, that technological development would first be applied to war.

rayiner 3y ago

They absolutely did think that. You’re overlooking that, at the time, the militia was “BYOF” (bring your own firearm). Federalist 46 has an extensive discussion on how European governments don’t trust their citizens with arms, and how a regular army wouldn’t be able to stand up to armed citizens: https://guides.loc.gov/federalist-papers/text-41-50 https://guides.loc.gov/federalist-papers/text-41-50. Once you remember that “militia” meant “calling up armed citizens into an organized fighting force” the text makes perfect sense. It says we need people to have personal weapons—especially weapons of war—so they can be called up into a militia. This is so obvious that the contrary view can only be the legacy of mid-20th century thinking when the bar was on the floor for old white guys. The framers were a bunch of people who had recently overthrown their government with the arms they had in their sheds. Of course that’s what they were getting at with the second amendment. A far better argument is that the second amendment isn’t incorporated against the states, because incorporation is kind of fake news. I also think that Heller suffers a bit from not going far enough in acknowledging that the second amendment is about overthrowing the government. It’s not really about self defense or handguns.

sgarland 3y ago
> A far better argument is that the second amendment isn’t incorporated against the states, because incorporation is kind of fake news. OK, I don’t think we’ll have any meaningful discourse here. Have a nice day.
scotty79 3y ago
I think the intention was for the militia to be well organized ahead of time and only then allowed to have guns. So furst you should gather bunch of people willing to listen to your orders and only then you all, as a group are allowed to own some guns. Nothing about where to keep them. Probably better to keep them at militia headquarters and issue them only when the time time comes. But actual militias are goddamn scary so government prefers to allow individual gun ownership that amounts to nothing except thinning the herd of trigger happy rednecks.
- rayiner 3y ago