Now that we’ve hurled about 15,000 words (each) at each other and gone essentially nowhere, let’s reset to (nearly) zero and start over. I believe this is necessary because until we hash out this particular topic we can’t get any further. As the Constitution and Bill of Rights are the foundation of all law in this country, an understanding of the Second Amendment as a law is the foundation of any discussion regarding gun control.
I am pressed for time, however, so I will attempt to keep this uncharacteristically short (and probably fail).
The opening question in this discussion was: “What did the Second Amendment mean when it was ratified, and does it matter today?” You answered “We don’t know” and “no it doesn’t.”
I realize that you’re going to disagree with me on this point, but the answer is “We know how it’s been interpreted, and yes, it does matter today. Or it ought to, else the entire legal system loses its validity.”
We know how it’s been interpreted because it was discussed in detail in very well recorded historical documents, and it has been brought up in a number of legal cases beginning not too long after it was ratified. These cases concern the “right to arms” generally, or the Second Amendment to the Constitution in particular, or speak of it in passing. Some of these cases deal with the right to arms in obiter dictum, but many address the topic directly. Twice already I have referred to the rule of law and the principle of stare decisis. If you want an analogy, these ideas are the brick and mortar of our legal system, and the structure we’ve built up to today is pretty damned shoddy, bordering on dangerous because of the tendency to ignore the rule of law and the abuse of stare decisis.
That’s the major argument I have with you, I think, Alex. You’re willing to alter the meaning of written law (ignoring the rule of law) in order to get a judicial outcome you favor (thereby abusing stare decisis). You’re interested more in outcome than in process. I say that because of these quotes:
Relying on someone’s personal beliefs from 1787 as the basis for governance in a modern society is a recipe for disaster.
It’s not a “cop out” to admit that we are all just making this up based on whatever limited information we can find and shaped by our own experiences now.
And yes, the same words can have different meanings over the course of time.
But if you can’t recognize that the same word can have different meanings, and that the meaning may evolve over time, again you are clinging to an idealistic past that never existed that way in reality (where there was no ambiguity or struggle with definitions whatsoever- everything was just absolutely defined).
First my allegiance lies to my country first, above any document (even the constituion). And those that would have it backwards (exalting any document above the good of the nation) ultimately do more harm than good in the long run, as they fail to see the big picture. They are so intent on “preserving” their own ideal of “what this document means” that they ignore the 200+ years of history, progress, case law, advances and changes society has undertaken since. But let’s just say “hey, these flawed human beings in the 1700’s got everything right, so let us all just reside inside their heads forever”.
We rely on what was written into the Constitution every day. So far we’ve (narrowly) held off disaster longer than any other democratic form of government in history. The information you characterize as “limited”? It’s quite voluminous. And while it may not tell us precisely what the laws written meant (else we wouldn’t need a judiciary to interpret it), it most definitely tells us what those laws did not mean. Where you and I part company is on this topic, because you think it’s OK to revise the meaning of laws based on current conditions as a means of ensuring justice, and I think that doing so slowly destroys the rule of law and will eventually result in a collapsing house of cards.
You are insistent that the militia clause of the Second Amendment is a modifying clause, restricting the right to arms to be in connection to that militia. From this, then, it is justifiable to you to restrict non-militia gun ownership, use, and/or possession. We can discuss the details later, but I’m going to assume I have understood this correctly for the moment. This is the position of the gun control groups – all of them – and it is also the position taken by most of the various Federal Courts of Appeal in stronger or weaker amounts. They take this position based on an interpretation of the one most recent Supreme Court decision dealing with the Second Amendment, which you cited; U.S. v. Miller, (1939).
However, I challenge you to find Supreme Court cases prior to Miller that interpret the Second Amendment in any way other than as a law protecting the right of individuals – without mention of militia service – to keep and carry their own personal weapons. Even Miller did not. Miller, at its worst, has been stretched by the 9th Circuit Court of Appeals to strip the individual right to arms from everyone living within its reach. That includes me, as I live in Arizona. That was the purpose of my quoting 9th Circuit Justice Kleinfeld’s dissent from rehearing Silveira v. Lockyer. The pertinent excerpt:
About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.
Two Supreme Court cases prior to Miller involved the Second Amendment directly. The first was U.S. v. Cruikshank (1875). It ought to have been one of if not the first of the “incorporation” decisions that expanded the protections of the Bill of Rights to all citizens in the country against usurpation by State law under the umbrella of the 1868 14th Amendment’s “privileges or immunities” and “equal protection” clauses. Unfortunately, it was not. It was a product of its time, as well. The 14th Amendment is quite clear as to its purpose in this regard as is the documentation regarding its writing and passage, but the Supreme Court decided that it couldn’t mean what it really said even though the Justices were contemporary with the lawmakers who wrote and passed it.
Here’s another excerpt from Scott v. Sanford:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?
Here’s the first paragraph of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Here (again) are what the Scott court listed as some of those “privileges and immunities”:
(Citizenship) would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
Here’s what the Cruikshank decision had to say on the topic of the right to arms:
The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.
In 1875 the Supreme Court stated, not in dicta, that the Second Amendment protected a pre-existing right of “bearing arms for a lawful purpose.” No mention is made of a militia. No militia is involved in the case at hand. But the Court proclaimed that the Second Amendment only protected “the people” from infringement of that right by Congress – the States were free to infringe to their heart’s content. This case is the reason that Chicago and D.C. are free to ban handguns, but Vermont allows unpermitted concealed-carry, although everyone who buys a new gun must buy it through a federally licensed dealer and fill out a federally-mandated BATF form 4473 and undergo a background check.
Please understand this: as late as 1875 the Court recognized, as it did in Dred Scott in 1856, that the right the Second Amendment protected was the right to “bear arms for a lawful purpose,” to “keep and carry arms” wherever we go. No other restriction was mentioned. That’s established law. Miller did not narrow this decision. Read it carefully. Miller simply said that the weapon in question could not legally be recognized as being suitable for militia use, and it remanded the case back to the lower court for finding. The Court did not, as the 9th Circuit and others have interpreted it, reject Miller and Layton’s right to arms based on the fact that they themselves were not members of a militia, even though the U.S. Attorney so argued. The question the Court considered was whether the 1934 National Firearms Act that required: a) a background check; b) approval in writing of a local head of law enforcement; c) photo ID; and d) payment of a $200 “tax” (in 1934 dollars on what was, after all, a $5 shotgun) was an infringment on the right of individuals to keep and bear arms. Arms, that is, suitable for military useage.
They said they were unable to reach a conclusion for lack of evidence.
(P.S.: If you have not, may I recommend that you dig into the Cruikshank case – not just the decision, but the acts that precipitated the case. If you think the Kelo decision was bad…)