Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
http://www.law.cornell.edu/constitution/constitution.billofrights.html
Now at dictionary.com here is the definition of militia:
| 1. | a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies. |
| 2. | a body of citizen soldiers as distinguished from professional soldiers. |
| 3. | all able-bodied males considered by law eligible for military service. |
| 4. | a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government. |
- An army composed of ordinary citizens rather than professional soldiers.
- A military force that is not part of a regular army and is subject to call for service in an emergency.
- The whole body of physically fit civilians eligible by law for military service.
| 1. | civilians trained as soldiers but not part of the regular army |
| 2. | the entire body of physically fit civilians eligible by law for military service; "their troops were untrained militia"; "Congress shall have power to provide for calling forth the militia"--United States Constitution |
So you tell me where it says individuals have the right to bear arms?
6 comments:
From Erik,
"I state now the Constitution DOES NOT state individuals have a right to bear arms."
From the Constitution
"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
You must have a short attention span and didn't bother to read the second half of the second amendment.
I read it and it says well armed militia. You didn't read the first half so you equally have the short attention span!
No, I understood it to be two parts. You're the one who only sees one.
Two parts? Really? Then let us parse part 1:
"A well regulated militia, being necessary to the security of a free state" is a unique clause in the Bill of Rights. It doesn't grant anything. It doesn't forbid anything. It sets no boundaries.
While it is a declarative statement, it's a preamble. It sets the context of what follows. That doesn't happen anywhere else in the Bill of Rights.
The second part is a clear statement of right, BUT it is the only right that the Framers felt needed to be set in context. If we go with their clear original intent - as every good conservative should do - the right to bear arms exists within the framework of a well regulated militia.
That's not to say the right ONLY exists in that context. The Constitution is totally silent on that subject, except for the implications buried in what Justice Douglas once famously called the "penumbra" of the 9th and 10th Amendments. Those amendments say that the enumerated rights are not a complete list, and that any powers not granted to the federal government are granted to the individual states, "or the people."
When Douglas wrote the majority decision for the Warren Court in 1965's Griswold v. Connecticut (aka the Connecticut Condom Case), he found there was a right of privacy buried in the "penumbra" of the Bill of Rights. The word "privacy" doesn't appear anywhere in the U.S. Constitution, I don't even think there's a synonym for it anywhere. It's just not mentioned at all.
Conservatives often cite this case, and how it was reasoned, as the most egregious liberal activism. They say Douglas was just making a right up, and from a strict constructionist view I can see their point. But, the 9th and 10th Amendments can be read to open up the Constitution for Justice Douglas's penumbra. The 9th Amendment is the Founders telling us the document isn't perfect, and by the way, they may have left out something. The 10th says that the individual states, and the people have powers that the Constitution does not address.
An individual gun right could exist in a penumbra, if we take Douglas's viewpoint. Who knows, Douglas may have been the very first Justice to interpret the 9th and 10th Amendments as the framers intended!
But Conservatives are absolutely correct when they say that what Douglas wrote was liberal activism. "Activism" is a pretty accurate term for interpreting those Amendments in that way, and Douglas was certainly as liberal as they come!
Will the Roberts Court create a new right out of thin air just like Douglas and his penumbra? Or will they just selectively choose to invalidate that unique preamble the Framers put in as a flag to warn us that this Amendment was different from Mr. Madison's others? Either way, they'll be reactionary activists applying their own ideology to the Constitution. They'll be following the liberal precedent in doing so (to pretend anything else would be hypocrisy on my part).
Frankly, if this happens, then Conservatives should be outraged!
Tom,
I can argue back that the second part of the amendment implies the basic right and the first part is the reason why.
Let's get away from the semantics for a minute. I remember in Bowling for Columbine, that very skewed interview with Charleton Heston and how his only argument (if you believe the film) for guns was that it is in the 2'nd amendment. Believe it or not, that's not the only argument.
Let's just pretend for a minute that the Constitution expressly forbids any private ownership of a firearm. If this was the case, then I would be strongly in favor of changing the Constitution.
If bad people were the only ones with guns, then that leaves everyone else nearly defenseless against the will of a criminal with a gun. This could include the police. Keep in mind that in Nazi Germany, one of the first things Hitler did was disarm the citizens so his Gestapo could easily enter people's homes and do their dirty work.
England banned guns from its citizens some time ago. The crime rate in many parts of England rises every year. What's more, burglars will enter homes in the middle of the day since they have little to fear from the tenants.
From the Los Angeles Times-April 20, 2007
"In 2000, the rate at which people were robbed or assaulted was higher in England, Scotland, Finland, Poland, Denmark and Sweden than it was in the United States"
These nations all have stricter gun laws or outrightly ban guns. Guess which industrialized nation has kept its crime level virtually the same over the past several decades? That would be the United States.
Also, sadly enough, these "anti-gun" nations have been experience rising mass shootings in recent years. Unlike the United States, there is no one with a gun to stop the murderer.
I don't own a gun. I never have owned a gun. I intend to never own a gun in my life. But I would never want my government telling me I can't own a gun.
If it's the ONLY case in the Constitution where the Framers put in a reason - and it is - then the only semantic conclusion I see possible is that the right depends on the reason, nothing more and nothing less. But, as you say, let's get away from semantics.
You want a right to bear arms, for reasons of self-defense against criminal elements in society. That's fine by me, within reasonable limits (and to keep things on track I won't discuss those limits, or the NRA's stance on any limits). We might disagree on the limits, but have a common area in the basic right.
I want a right of privacy, to protect me from neighbors who demand to make my most basic personal choices for me. I suspect you'd agree with me, again within reasonable limits which we will leave undefined at present.
But, neither an individual right to bear arms, nor a right of privacy, specifically exist within the Constitution. For the Supreme Court to create either is judicial activism.
While the 9th and 10th Amendments appear to open the door for such activism, it's a scary thing for courts to do. they can use the power for good (in creating a right of privacy, or undoing judicial activism that created legal racial segregation), or for evil (Dred Scot v. Sandford, where they exceeded the issues needing to be decided, or the aforementioned cases up to Plessy v. Ferguson where they gutted the intent and language of the 14th and 15th Amendments, and voided the Civil Rights Act of 1870).
Judicial activism is fraught with potential peril, and Conservatives should be apalled when it happens - as it undoubtedly will happen IF the Supreme Court creates an individual right to bear arms. Instead, most will celebrate.
You would be in favor of changing the Constitution to allow the right. So would I, rather than have a Supreme Court opinion declare it, and then manufacture judicial tests that allow some form of gun control. We all know how well judicial tests on obscenity and abortion have worked; they have to be revisited, on average, every other year.
If an individual right to bear arms needs to be created, then there are several other ways to do it, up to and including amending the Constitution; all, in my view, preferable to judicial activism. And, as I noted in a comment to Erik's first post on this thread, no matter what the opinion is, there will be some well-funded attempts to change it.
Which is why, ultimately, I predict that the justices are going to have a harder time with this case then one could sense from listening to the arguments and questions when the case was heard. Every so-called "Conservative" justice testified in confirmation hearings that they would interpret the Constitution based on what was in it, not what they wanted to be in it. Time will tell if they are honest, or at best hypocrites, and at worse liars.
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