The problem, which Scalia addresses thoroughly in the Heller decision, is in the emphasis of the non-operative clause. Discussion of militias and regulation is an attempt to obfuscate the most important clause that the amendment ends with. The DC circuit court's Heller decision, before it went to the Supreme Court, is simple and clear.
U.S. Court of Appeals for the D.C. Circuit (2007): The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias.
I suspect that our founders intended to remedy the weakness you point out in your bill of rights.
Okay thanks guys. As I read the Amendment and its commentary it would appear that the original intent was with regard to militias only. The 'right to keep and bear arms' was connected only with that in mind and has, apparently, nothing to do with defending oneself in a civilian-only context. I can't find where the change in thinking happened that led from the 2nd Amendment's intent to the general Wild West kind of situation that exists today.
As to the Declaration of Independence. Rather amusingly, from the point of view of the 1st Amendment, it contains statements that tie both government and the people into a Christian framework whether they like it or not. Of course I understand that this was likely the prevailing view back in the day.
I would recommend reading the Heller decision LINK to .pdf I don't agree with all his decisions, but there is no arguing that Scalia wasn't a legal titan. His logic is penetrating and deep.
Regarding the Declaration - The founders weren't necessarily Christian. There is a lot of assertion that's what they intended, but it simply isn't true. Jefferson was a deist, and as critical of formal Christianity (and even religion) as anyone. Thomas Paine was an atheist. Many (if not most) were "FreeThinkers".
1. Yes I read Heller, and a host of other commentaries. In my opinion the 2nd Amendment was not intended to be used as a carte blanche for the carrying and using of arms in anything other than a defence against a wayward government (edit: or a clear national danger). Obviously times change and quite frankly the US Govt. forces would sweep aside any militia today without breaking a sweat. Anyway, I just found it interesting how the Amendment started off being one thing and ended up being something entirely different.
2. Then they should probably have left out all the "God" and "Creator" parts from the Declaration. There is a reason they are included, and it has nothing to do with freedom. Again, I just find it amusing, much in the same light that one must make all the right religious sounds if one wants to have any hope of gaining the highest office.
Last edited by Empty_of_Clouds; June 13th, 2016 at 03:28 PM.
Crazyorange (June 15th, 2016)
If you've read the Heller decision, your questions are particularly curious. Anyway, why do you assume that a fight against tyranny was the only justification? Certainly the founders were aware of how a government goes about subjugating it's citizens, but firearms are tools as well. Defense of person and property isn't a novel concept. Game animals were critical to survival, particularly among frontiersmen. The North American continent still has natural predators.
As to the notion that the U.S. Government would "sweep aside any militia today without breaking a sweat"... You are clearly ignoring many, many things with that statement. An insurgency is one of the most difficult things to defeat, and you assume that the military would be on the side of the government in some hypothetical situation.
*sigh* Please do your homework before you start making insinuations about purpose. Jefferson drafted the Declaration. He didn't use "Laws of Nature and Nature's God" or "endowed by their Creator" because he was some secret Calvinist.
In a letter to Dr. Benjamin Rush, Jefferson wrote:
"...while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity thro' the U. S.; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians & Congregationalists. The returning good sense of our country threatens abortion to their hopes, & they believe that any portion of power confided to me, will be exerted in opposition to their schemes. And they believe rightly; for I have sworn upon the altar of god, eternal hostility against every form of tyranny over the mind of man."
The bolded portion is inscribed under the dome of the Jefferson Memorial. Note the lack of capitalization for "god".
Before I say anything else I would remind you not to take anything I say so damned seriously!
1. I was referring to defence of citizen against citizen. I am totally aware and in favour of the use of the proper tools for defence against wild animals. And as ex-mil I am quite cognizant of the difficulties certain types of engagement present. I was just being somewhat general (if you'll excuse the pun). To me the US seems such a paranoid nation that it holds on so desperately to the notion of rising up against its own elected government. I am speaking as one whose own country last had a civil war nearly 400 years ago, and whose citizens, while constantly ragging on their government, do not feel they will ever have to take up arms against it.
2. I can make insinuations whenever I please. In this case they are based on the actual wording as I see it. Your bolded part: despite the lack of capitals is taken as meaning the Christian God (by pretty much everybody seeking office in the US I would imagine). Your government, and your founding fathers, are just as adept at talking out the side of their collective mouths as the politicians of every other nation. I remain unconvinced that there was no agenda behind the wording. Not that it matters much other than being something I find entertaining. I don't lose sleep over it.
Perhaps you'll get Mr Trump as POTUS and full rein will be given to a literal interpretation of the Bills. Welcome back to the (Hollywood version of) the Wild West!
Looks pretty tyrannical to me, someone telling me what I can and cannot do. Just sayin'... for I have sworn upon the altar of god, eternal hostility against every form of tyranny over the mind of man."
Crazyorange (June 15th, 2016)
No idea, but could "regulated" be interpreted to mean regulation or registration?
Perhaps analogous to the licencing, registration and insurance that is required to operate a motor car?
Also, given that there's a seat vacant on the Supreme court that hinges on the outcome of the presidential / congressional elections, could the court's interpretation of this wording change if the seat is eventually filled by a lefty judge? ....just thinking out loud here......
What "seems" to you actually seems to me ignorance gravitating toward an axe to grind. "Oooh, what about this... 'well regulated'!" "Ooooh, they used the word God; clearly fundamentalist Christian from the outset!" "Ooh, Trump blah blah Wild West!". Is your goal simply to make insulting insinuation, or are you asking legitimate questions? Your understanding of the context is absent, to the point that I'm slightly embarrassed for you.
Although I have tried to provide you information you clearly lack, it gets tiresome entertaining your questions when it's clear that you have done no research, and are merely jumping to conclusions you would discover were absurd if you took some time to educate yourself - e.g.: "Jefferson sounds tyrannical... " At this point I find your intentions suspect.
Oh, I joined the U.S. Army when Reagan was President, and still serve. I've got combat tours in Iraq and Afghanistan.
Dreck (June 19th, 2016)
Here I am having a bit of fun asking questions, and there you go (again) taking it all way too seriously.
You don't have to entertain my questions, you could just stay silent, nobody is frogmarching you in to answer.
Anyway, I asked about 'regulated' because I wasn't sure if it was supposed to mean 'organised', or whether it referred to the resources available to public individuals, or if it would curtail carrying weapons just for personal protection against your fellows (i.e. not the govt.). The "god" thing is me just pulling the US' collective leg. Teasing you a bit.
Last edited by Empty_of_Clouds; June 13th, 2016 at 08:06 PM.
Crazyorange (June 15th, 2016)
To be fair, EoC, I believe dneal is doing a very good job of answering your legitimate enquiries, perhaps it is you who needs to take things more seriously, rather than he less so?
Yes, you are probably quite right, SIR. I'll bow out of this.
It's not that so much. It is more that I feel I have come to the end of a road. My time here has been interesting - apart from any of it that involved Isaacson - but this is no longer my place. It never really felt like it was to be honest, I have always thought of myself as peripheral. Indeed geographically I am, but also in nearly every other sphere of human measure too. Just not a good fit. There's nothing sad nor dramatic in this, only a realisation and a quiet acceptance of where my head has been for some time now. And instead of making a silly new thread announcement, this here, right now, seems like the ideal point to wish everyone the best in their future endeavours. Adieu.
There's a thread somewhere which asks "does your pen match your watch"; so, I must ask the gun owners here, does your pen match your gun?
Answers with photos, please!
Ah, okay... it was a bit difficult to determine the tone of your post, so my bad. At most, the US could be accused of throwing up all sorts of road blocks against the Japanese that some may consider borderline acts of war, but all were justified given what the Japanese were doing leading up to the actual war. The Japanese (or at least a significant number of their leaders -- some did warn the others that war with the US would be an absolutely stupid idea) wanted war with the US, and they got the war they wanted.
That was a point I was actually thinking of the other day. Back when the 2nd Amendment was written, the level of equipment between your typical army and the private citizen were pretty much equal. They may even have had identical muskets. Nowadays, the level between what's available to a private citizen, either via laws or via cost of acquisition, is orders of magnitude below what the government forces have available. This brings up the question as to whether or not the notion that the 2nd Amendment was a check against government tyranny is obsolete since simply bearing arms isn't enough to combat a government run amok, assuming that the majority of military forces fight for said government run amok. There is always the possibility that some may join the "rebels" and bring their equipment and skills with them.
Now someone else pointed out the difficulty in fighting an insurgency, and that is true... Having access to guns in homes would be useful to any insurgency, but there is still the problem of acquisition of ammunition, replacement of lost/broken arms, and so on. In that case, those supplies would probably be provided via smuggling networks, much as they probably are in areas where there are active insurgencies. Having large swaths of privately owned guns prior to starting the insurgency may help it get its feet off the ground, but won't help it in the long run as they would need to be replenished at some point. Also, one of the most effective weapons in insurgencies don't appear to be military-grade rifles, but more along the lines of improvised explosive devices and such.
This is not a statement either pro or con vs. the 2nd Amendment. It's mostly a bit of a thought experiment as to whether or not its original primary intent is still applicable in this day and age.
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