5 ms·

Speaking of established case law, we have from the very first page of Heller [1]: > The Second Amendment protects an individual right to possess a firearm unc

by 1787 8y ago

Speaking of established case law, we have from the very first page of Heller [1]: > The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia... [2] The Constitution encodes a value judgement about the rights it protects; these rights are presumed to be protected unless it can be shown why they aren't in some specific case. That is to say, to ask someone "how [their] right contribute[s] to the security of the state" is wrongheaded - if you wish to deprive them of their right you must first meet strict scrutiny. [1] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller [2] https://www.supremecourt.gov/opinions/07pdf/07-290.pdf https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

seanmcdirmid 8y ago
If we actually had a Swiss-style militia system, the constitution would be completely unambiguous. Instead, the pro-gun interpretation of the 2nd amendment is that it’s first clause is completely meaningless. I’m not sure how they resolve that kind of “being literal only when convenient” hypocrisy in their heads.
- scrub_tier 8y ago
  While I happen to agree and appreciate your input, let's avoid words like hypocracy for now. It tends to nurture hostility and I'm trying to get some real insight.
  - justin66 8y ago
    I'm not sure he was attacking anyone here. You need to compare (I mean really read) the majority opinion in Heller with the dissenting opinions. "Hypocrisy" is one word that leaps to mind from time to time, particularly in light of the magnitude of the changes and the way the author of the majority decision is supposedly an originalist and strict constructionist.
    - scrub_tier 8y ago
      Hi Justin. It's not that I disagree. In fact, I too believe it to be intrinsically hypocritical than not the more I've re-read it since I posed my initial question. HOWEVER, how we talk about things can be colored by our choice of words. The original poster is correct, but offers no examples from the case document. I believe when we state what we believe to be true, but don't support it directly may be somewhat counter productive to the more open discussion. I appreciate your feedback. Devils advocate: Mincing words and dancing around language can sometimes lead us away from solutions or understanding. I'm taking a risk. :)
- alethiophile 8y ago
  In the context of the time when it was written, "militia" meant the entire male population of military age. You can look up period law codes and find this kind of definition. It wasn't a legal fiction, either; that was the only civil defense most communities had, and threats were fairly common (e.g. Indian raids). The plain meaning of the second amendment, in this context, is that _anyone_ is allowed to own arms, because everyone is expected to take responsibility for defending themselves and the community. There's also another layer; "militia" is as opposed to "standing army", and "a well-regulated militia being necessary to the security of a free state" thus means that the militia (that is, the population at large) needs to be armed well enough to resist tyrannical impositions by a standing army.
  - seanmcdirmid 8y ago
    Yes, even if you take the period definition of militia, that doesn't mean the clause is meaningless today, it just means the context of the amendment is archaic. The fact that the meaning is still twisted: > A well regulated Militia, being necessary to the security of a free State to mean tyrannical impositions by a standing army of the same state, as opposed to a foreign state, is categorically ridiculous.
    - alethiophile 8y ago
      It quite obviously meant both. The British army, against whom the people who wrote that clause had just finished fighting a revolution, was an army of "the same state" when the fighting was happening. Any attempt to deny that the founders were very worried about tyranny imposed by the government of the country in question, and intended the second amendment (among other things) to allow the citizens to resist against the army of that government, is outright ahistorical.
      - seanmcdirmid 8y ago
        > It quite obviously meant both. The amendment is quite short and easy to quote; the pro-gun crowd actually hates this one little trick: > 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. There is no "obviously we mean our own government" rather than foreign invaders the militias (like the Swiss ones around since pre-revolutionary times) are typically meant to deal with.

by 1787 8y ago

seanmcdirmid 8y ago

If we actually had a Swiss-style militia system, the constitution would be completely unambiguous. Instead, the pro-gun interpretation of the 2nd amendment is that it’s first clause is completely meaningless. I’m not sure how they resolve that kind of “being literal only when convenient” hypocrisy in their heads.

scrub_tier 8y ago
While I happen to agree and appreciate your input, let's avoid words like hypocracy for now. It tends to nurture hostility and I'm trying to get some real insight.
- justin66 8y ago
  I'm not sure he was attacking anyone here. You need to compare (I mean really read) the majority opinion in Heller with the dissenting opinions. "Hypocrisy" is one word that leaps to mind from time to time, particularly in light of the magnitude of the changes and the way the author of the majority decision is supposedly an originalist and strict constructionist.
  - scrub_tier 8y ago
    Hi Justin. It's not that I disagree. In fact, I too believe it to be intrinsically hypocritical than not the more I've re-read it since I posed my initial question. HOWEVER, how we talk about things can be colored by our choice of words. The original poster is correct, but offers no examples from the case document. I believe when we state what we believe to be true, but don't support it directly may be somewhat counter productive to the more open discussion. I appreciate your feedback. Devils advocate: Mincing words and dancing around language can sometimes lead us away from solutions or understanding. I'm taking a risk. :)
alethiophile 8y ago
In the context of the time when it was written, "militia" meant the entire male population of military age. You can look up period law codes and find this kind of definition. It wasn't a legal fiction, either; that was the only civil defense most communities had, and threats were fairly common (e.g. Indian raids). The plain meaning of the second amendment, in this context, is that _anyone_ is allowed to own arms, because everyone is expected to take responsibility for defending themselves and the community. There's also another layer; "militia" is as opposed to "standing army", and "a well-regulated militia being necessary to the security of a free state" thus means that the militia (that is, the population at large) needs to be armed well enough to resist tyrannical impositions by a standing army.
- seanmcdirmid 8y ago
  Yes, even if you take the period definition of militia, that doesn't mean the clause is meaningless today, it just means the context of the amendment is archaic. The fact that the meaning is still twisted: > A well regulated Militia, being necessary to the security of a free State to mean tyrannical impositions by a standing army of the same state, as opposed to a foreign state, is categorically ridiculous.
  - alethiophile 8y ago
    It quite obviously meant both. The British army, against whom the people who wrote that clause had just finished fighting a revolution, was an army of "the same state" when the fighting was happening. Any attempt to deny that the founders were very worried about tyranny imposed by the government of the country in question, and intended the second amendment (among other things) to allow the citizens to resist against the army of that government, is outright ahistorical.
    - seanmcdirmid 8y ago
      > It quite obviously meant both. The amendment is quite short and easy to quote; the pro-gun crowd actually hates this one little trick: > 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. There is no "obviously we mean our own government" rather than foreign invaders the militias (like the Swiss ones around since pre-revolutionary times) are typically meant to deal with.