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| Thread: The Structure and Content of the Second Amendment |  This thread is pages long: 1 2 3 · NEXT» |
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Peacemaker
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posted October 16, 2005 07:36 PM |
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The Structure and Content of the Second Amendment
I’m opening this thread on behalf of Wolfman and myself, based on a side discussion into which we would like to invite further analysis. I know you all might find this difficult to believe, but for once neither of us has any definitive answers to most of the questions posed below. This utterly astonishing fact led Wolf to suggest we open the dialogue here in HC and see what happens.
This thread is intended to frame some of the critical issues raised by the Second Amendment to the United States Constitution, one of the most hotly debated issues in contemporary America.
The text reads:
Quote:
Amendment II to the U.S. 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.
NOTE: The purpose of this thread is NOT to discuss whether or not such an amendment should exist to begin with. The focus is, given its existence, what the Founding Fathers intended to accomplish with it. In other words, we’re not trying to start an argument about whether or not you like the fact that Americans have guns in their society. Anyone who wants to discuss that issue is invited to begin another thread on that topic. This here is intended to be a scholarly debate on the most appropriate manner to apply the existing Amendment to contemporary society.
ISSUES
1. Historical context
It is important, when contemplating the Second Amendment, to recall the historical context in which it arose. Democracies were nearly non-existent; tyrannies were the order of the day. The colonies had just gone through a bloody protracted battle breaking free of British rule and were extremely suspicious of governmental power in general. The American citizenry were nearly all in possession of arms of some sort because they were used commonly for both self-defense against animals and humans as well as vitally necessary to the procurement of protein. And those weapons were very similar to the ones in possession of colonial and foreign armies.
A review of the Federalist Papers and other sources of dialogue between the FF clearly suggests a couple of the main concerns behind the Second Amendment – as well as much of the rest of the Constitution. One was keeping the power of the government in check. The Second Amendment was specifically to assure the constituents would always be able to rebel against the government in the event it ever became tyrannical. Another was that the citizenry WAS the standing army, and that if the constituency remained armed it could be summoned upon a moment's notice to respond to an invasion by alien forces.
This intent, and the vast changes in multiple circumstances since the Constitution's inception to the present day, are perhaps the most critical concerns when contemplating how to apply the language of the Second Amendment.
Which brings us to the next issue.
2. Strict Constructionism and Reasonability
“Strict Constructionism” is the notion that the Constitution should be applied to the letter of the language – with no interjection of ideas not expressly written into it nor any extrapolations or assumptions about intent in its application to real society.
The Second Amendment is a perfect illustration of just how difficult this can get.
Strong proponents of the Second Amendment assert that it absolutely and completely protects the rights of each and every American to possess any manner of firearms (s)he pleases without any restriction whatsoever or else the strict construction of the language in the Second Amendment will be violated.
A closer examination of reality and language alike, however, suggests this may not have been what was intended. For instance: The definition of “Arms,” when the constitution was written, was significantly different than what the term encompasses now. Whereas the rifles and other weapons of the day were crude, slow, and generally equal in terms of destructive power, we now have everything from paintball guns to nuclear bombs and chemical implements. Would a strict constructionist interpretation suggest that the Founding Fathers intended the average American citizen have an absolute constitutional right to possess nuclear and chemical weapons? Most reasonable people would have to admit this notion is preposterous, totally unrealistic and counterproductive to the entire purpose of the constitution establishment of a stable Republic governed by the rule of law. And the reason it is preposterous is because the FF never foresaw such vast technological advances and diversity in human weaponry.
So we have to look back to the intent of the FF and try to glean what it was they were trying to accomplish – defense against tyranny.
However, if the whole point of protecting the right to “bear arms” is the ability to stand one’s own government down in the event of tyranny, and the government is in possession of nuclear and chemical arms, doesn’t it also stand to reason that in order to effectively resist a tyrannical government one would have to be able to bear arms of similar magnitude?
3. The mysterious missing commas
Frequently one will see the following version of the Second Amendment, in which two of the commas which appear on the original document (quote above) are conspicuously absent, raising at least two questions. First, why have they been removed and by whom? Second, does their absence affect the meaning of the text in any way?
Quote:
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.
Do these changes reflect some vast conspiracy, or did the typist just screw up one day and the altered copy got into so many books people simply never noticed there are actually two versions of the Second Amendment floating about?
4. Meaning of “Militia” and “People”
Now owing to the fact that the Founding Fathers were just about the smartest bunch of guys ever to simultaneously find one another’s company in the history,and since they were really, really good at cutting out any language from their legal documents that wasn’t absolutely necessary (unlike most lawyers), and since the phrase The right of the People to keep and bear arms shall not be infringedwould have sufficed just fine if this right were not to be qualified in some manner, just what IS the meaning of this “well regulated militia” phrase and in what way does it qualify the rest of the text?
Is the “well-regulated Militia” the same thing as “the people?” Or by “well regulated Militia” were the Founding Fathers suggesting that the ordinary citizens needed to be able to keep a state-run militia in check?
Also, why did they choose to refer to “the People”(plural) in this Amendment, where in other places they chose the term “Person” (singular?) Could these references be specifying that the Second Amendment was intended to reference a group right of self-defense rather than an individual right to possess an automatic weapon?
On the other hand, how else can the collective defend itself other than possession of arms by its individual members?
5. Federal and State regulations controlling the possession and use of firearms
In light of the very apparent intention behind the Second Amendment -– to provide the constituency with a way to defend itself against the government -- what are the ramifications of any kind of restrictions on the possession and use of arms by that government? Some say the merely registering gun possession is a simple solution to prevent the possession by criminals and such getting out of control. But who is going to abide by this law anyways – the criminals? NOT. And if the government has any latitude to undertake any kind of regulation whatsoever, then where should the line be drawn? If a tyranicizing government begins with forcing all lawful citizens to register their guns, could the government not simply track down all the registered guns the day it decided to overthrow the constitutional democracy, take possession of them and defeat the whole purpose of the Constitution?
On the other hand, the unrestricted right to possess firearms combined with an increasingly violent society leads to mass-murders of children such as Columbine, rampant violent crimes by adults by means of automatic and other weapons, and the grave dangers which are naturally present when all manner of guns are readily accessible.
Are these just the costs of having such an Amendment? Should the Constitution be amended? Could the society ever possibly achieve such an amendment considering three fourths of Congress would have to support the Amendment? Since Congress is part of the government, is it not counterintuitive for them to be monkeying with this Amendment to begin with?
Are you getting the picture yet? Clearly, with the Amendment as it stands, there are reasonable arguments to be had on both sides.
Discussion of these and any additional issues this perplexing Amendment raises are welcome.
Again, please resist the urge to America-bash; we’re serious and are looking for intellectual substance. Thanks in advance for abiding by these requests.
(Oh, how appropriate. Only an American would have such a signature....)
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Consis
Honorable
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Of Ruby
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posted October 17, 2005 05:30 AM |
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HuH?
You want us to play judge? This thread is for discussion on what we think the founders meant/intended/hoped for when they wrote the 2nd amendment?
Hmm . . . I suppose I could if that was the intention of this thread.
Is it?
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Roses Are Red And So Am I
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Peacemaker
Honorable
Supreme Hero
Peacemaker = double entendre
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posted October 17, 2005 05:20 PM |
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Hm. Interesting response, Consis. I suppose that's one way of looking at it.
However, judges certainly aren't the only ones who contemplate these issues. I think you'd agree it is incumbent on every American citizen to thoroughly understand the Constitution, and as I said, this is one of the most hotly contested passages in the entire document -- not just by judges, but by the mainstream constituency. Practically everyone seems to have an opinion on its meaning, but no one seems to be able to respond meaningfully to the problems his or her opinion creates.
So feel free to participate, absolutely.
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I have menopause and a handgun. Any questions?
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Shiva
Promising
Famous Hero
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posted October 17, 2005 05:51 PM |
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" a well regulated militia"...I think you may have to face
the fact that the concept of a civilian militia is outdated, in light of there being a regular army and a national guard. Since the constitution was written in
the context of the American Revolution, and greatly
influenced by the rule of the British Empire, therefore
it does not apply to the present day situation in the
same way. As smart as the founding fathers were, they
had no clue that mass-produced AK-47's would take over
from muzzle-loading rifles
Peacemaker, I don't believe you can discuss this issue
without going into whether or not guns should be
freely available. After all, even if a militia is ok,
how does that make it a good thing to promote a gun
culture?
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Peacemaker
Honorable
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Peacemaker = double entendre
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posted October 17, 2005 06:30 PM |
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Shiva -- your post suggests you perceived my opening statement as positional. Actually it was intended to lay out the problems with the positions being taken by both sides, not to reach any conclusion, because I haven't yet.
On your first point about the historical context of "militia" -- this is precisely one of the problems I perceive as well. If you'll read my post once again I bring up this problem, but don't state it as concisely as you have. One question -- on what do you base your conclusion that the term "militia" references the constituency, and not a formally conceived militia (a branch of the government which, as such, may need to be kept in check by the constituency in the event of tyranny)? If it simply meant the consitutency rather than an armed branch of the government, then what is the meaning of the words "well-regulated?"
In other words, I think this is a sound point. But it is also one of the things that makes the Second Amendment ambiguous, even when viewed in light of the circumstances of the day. The fact is, as you point out, there was no "well-regulated militia." So what the hell were they talking about, and why do you think so?
On your second point -- should individuals be carrying weapons? While I agree this is an important question, actually it may be a bit beside the point since the very narrow purpose of the discussion is to ascertain the intent of the language. (Sort of like asking "should people be having abortions.") However, nearly the same question can be raised (and I did raise it) in such a context by asking it this way: does the language of the Second Amendment intend to assure the right of individuals to possess arms -- especially in light of the fact that the term "arms" means something completely more menacing and potentially destructive to the Republic now than it did when the passage was written? I agree this is a question, and it is also one I raised in the original post. And perhaps it is what you intended as well. So, what's your take, and why?
It may help to see what I am trying to accomplish here if you re-read the opening post on the assumption that Wolf and I have not arrived at any conclusions either way on most of these issues (correct me if I'm wrong here Wolf), which is why we're engaging in this exercise.
Thanks for participating! Here we go!
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I have menopause and a handgun. Any questions?
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Conan
Responsible
Supreme Hero
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posted October 17, 2005 07:13 PM |
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interesting.
Well, no, I don't think the FF of the USA meant for the second amendment to go as far as nuclear weapons. In fact, I think since one cannot predict the future, one cannot know how to phrase an amendment to suit the future of a country.
No matter which side you take, I think that being open and questionning the need of such amendments are inevitable. But like you said, this is not the place for this.
But you cannot differenciate debating if such an amendment should exist with what the FF of the USA had itended it to be. Those debates go hand in hand. And in refusing to debate the amendment itself, you are closing yourself off to this very debate.
My point is that law is never universal. At one point, if a country is to grow, it must make amendments to the existing amendments. In this perticular case, I think the amendment discussed is outdated and should be re-vamped somehow to reflect the present situation of the USA and it's needs.
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Your life as it has been is over. From this time forward, you will service.... us. - Star Trek TNG
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Consis
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Of Ruby
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posted October 17, 2005 07:17 PM |
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Hmm, Well . . .
Taken in historical context is pretty darn simple: The law was written to facilitate the distribution of arms to every American colonist (soon to be referred as 'citizen'). Having an eye for the day and age, it was necessary and late in its arrival. The consistent Native American Indian squabbles saw to an already armed citizenry. But the good folks who wrote the Constitution (Mr. James Madison in particular) knew that those already armed citizens would need government regulation over the use and care of such lethal objects. It was Mr. Madison who said, "If men were angels, there would be no need for government." The right to bear arms was, at the time, a good way to allow those citizens already in possession of such arms to maintain their own rights as actual colonists. Many of them worked very hard to build what they had rightfully earned through resolute diligence.
In another historical context, a bit skewed from the main, was whether this new nation could and should have a "standing army". At the time of the American Revolution, the answer was quite obvious. This issue was in fact not hotly debated at that time because everyone simply knew that the British weren't about to simply acknowledge their own defeat. With respect to their navy and many of their sea-faring politicians, the word tenacious is a far cry from exactly how determined and proud they truly were. In fact some British seaman still carry an equal amount of dignity and pride in their sea-faring capabilities today. And I think it is right that they should be very proud of what they have accomplished at sea.
With regards to a current debate of the right to bear arms, it's very clear that it is now a requirement for any and every presidential candidate. Just think if a candidate ignored the question every time he/she was asked: "What do you think about guns in today's cities?"
It is good that we should continually discuss the matter. Regulation is the key to this matter. Guns can no more likely be removed from the population than alcoholic spirits. And we've already tried that, look where it took us. It was a valuable lesson about people and their poisons. Rights are rights; the very things we all agree are worth living/fighting for.
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Roses Are RedAnd So Am I
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Russ
Promising
Supreme Hero
blah, blah, blah
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posted October 17, 2005 07:51 PM |
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Well, I don't have much say in this as I am not a US citizen, but am I happy I live in a weapon-free Canada!!!
If someone decides to get pissed at me, I'll get punched in the face instead of getting shot or stabbed.
And I don't think that a bunch of people with auto weapons can overthrow the US government with its numerous government agencies designed to prevent this, so the main purpose of the 2-nd amendment has expired. And I don't even want to think of what would happen if you gave every one of them a nuke... ouch!
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Wolfman
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Insomniac
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posted October 17, 2005 08:00 PM |
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Quote:
Regulation is the key to this matter.
How would regulation help? I'm sure you could agree that criminals will always find a way to get guns if they want them. So regulation just takes guns away from the people who obey the laws. It won't work.
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Peacemaker
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Peacemaker = double entendre
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posted October 17, 2005 08:28 PM |
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Good point Conan. I don't mean to suggest that the existence of the Amendment itself isn't called to challenge given how archaic it's become. You're raising an issue that is naturally raised by all the problems that become apparent once you start examing the text of the passage. But I still differentiate that legal issue (A constitutional amendment to the Second Amendment, perhaps repealing it and re-enacting something more relevant to today's context) from the accompanying social issue of whether we should permit or regulate arms (and if so how). Nonetheless, the more analysis I see, the less able I remain to separate these two issues.
But then how do we answer Wolf's question esp. in light of Consis' point? Even assuming we modify or even completely repeal the Amendment, how does one regulate arms? Removing them from the American society altogether would be like trying to eliminate wine from French culture, even worse perhaps. Statistics show that regulation of fire arms has very little impact on their use because of the black market availability, and the black market ignores (indeed thrives on) the imposition of regulations. The practical result is the only portion of society regulated is that which is already law-abiding.
We need some more gun advocates in on this so's my devil's advocacy does not continue to be perceived as partisanism. Any takers?
<EDIT>
BTW, the repeal (or even an amendment) of the Second Amendment is a highly improbable event in the United States as a practical matter, which is why I tried to eliminate it from the discussion to begin with. This is intended to be a discussion about what is, not what ought to be. I hope that makes sense.
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Conan
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Supreme Hero
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posted October 17, 2005 08:57 PM |
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Well PM, that's a very good point too. And a hard debate at that. And this questionning could in fact be applied to many more questions. But let me at least give a starting point:
Quote:
So regulation just takes guns away from the people who obey the laws.
Well, that by itself if a good start IMO. If you find that less people have guns, you'll find that less shots are fired and that less people die. That's point #1 and a starting point.
I don't pretend to have all the answers, but after watching Bowling for Culombine, it is my idea that the American society, which is not my own, needs it's guns, much like the French need their wine. (Nice analogy, BTW  )
Perhaps before changing anything we should examine why it is this way in American society and how that ideology could be changed in your culture, if change is what you are looking at. I look at it from this angle because I don't think that everyone should have the right to carry a gun. But if you do, and some Texans do, then is there any problem with the wording of the amendment? And this would be my main point. Try doing a cultural analysis and adapt that amendment with your findings. Sadly, my knowledge of American culture is often biaised or simply inexistant.
I guess, like I said, that it all comes down to what you beleive in. We cannot debate validity of the second amendment if some agree to it, because for them, it's fine the way it is.
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Your life as it has been is over. From this time forward, you will service.... us. - Star Trek TNG
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Peacemaker
Honorable
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Peacemaker = double entendre
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posted October 17, 2005 09:15 PM |
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Okay. We're still on an aside here...
But to answer your question Conan, no, I personally don't think everyone should have guns. In an ideal world my wish would be the opposite. The sociological fact of American life is that this country was borne of an extremely violent past, and that both the arms and the violence remain imbedded elements of that culture to this day. It will take centuries in my estimation to unravel these related elements of the culture, if it could ever be done.
So in the practical world I thoroughly intend to hang on to mine because the outlaws will have free reign against me if I relinquish them, unless and until the highly unlikely event that the outlaws are all magically disarmed. That's the reality of my society.
As long as that practical reality exists I will do what I must to protect my family, amendment or no amendment. Because like it or not, I am a product of the very same culture of which I speak. And as long as I have a child, and people who have weapons might intend to do me harm, then I will take any steps necessary to protect him.
Which (hopefully) returns us to the present questions of legal interpretation and practical realities posed here...
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privatehudson
Responsible
Legendary Hero
The Ultimate Badass
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posted October 17, 2005 11:59 PM |
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There are people in society who are not criminals but them having a gun is blatantly not advisable. The most obvious case of this would be people with mental health problems, either a history of them or currently suffering from them*. Some regulation is therefore not only advisable but outright necessary.
In the UK we find that our policy of no guns completely (if you like total regulation) works by and large for us. I doubt it would work in the states. Here there was not such an imbedded gun culutre as there is there. I've known Americans to consider our lack of guns as insane, they believe we have been denied a right or our heritage. To us though it's really not a big deal beyond the minority that used to own and use handguns regularly. What is telling is the shock some Americans get when you're over there and mention your country doesn't allow gun posession. They look at you like you have 3 heads or something. 
I'd probably say that the best thing for the states was to have a degree of regluation. It is only sensible to try and keep a dangerous weapon out of the hands of those likely to use it for illegal or immoral reasons. Sure criminals will get an illegal weapon but that's kinda missing the point. Sensible regulation doesn't stop people from legally enjoying guns or using them in self defence, it merely puts another brick into the wall to block criminals from legally owning dangerous weapons.
In our experience if you're intentions of owning them are legally right, then having to fiddle around with background checks and observe certain rules regarding their use and acquisition shouldn't mean a damn to you. In the UK farmers for example can legally own a shotgun for their use on the farm. They're required if memory serves to undergo various background checks before they can and when they do they have to keep the gun locked away with the ammunition locked in a seperate area. Nothing wrong with that IMO, they would only usually use the gun in certain conditions, there would be no need to keep it loaded by the side of the door for example. Regulation needs to suit the circumstances I guess.
Part of the problem I have with US gun laws supporters is the use of the ammendment argument to support it.
Though the ammendment supports the ownership of guns, it would IMO support more a scenario similar to the farmer above. The need to bear arms to form a milita if may not longer be necessarily a valid one, but even if the need does exist, why not regulate their usage? There may be a need to posess them, but if there's no need to use them right at that point then surely it's only sensible that they be regulated, i.e. like the farmer above locked away until needed. Many people may do that, but by making it a legal point ensures that it is carried out, not left to the individual to decide. There's a case for less regulation via other arguments such as crime and so on, but in my view the case is not supported by spirit of the ammendment itself.
*As the T-Shirt says though, I don't suffer from insanity, I enjoy it
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Consis
Honorable
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Of Ruby
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posted October 18, 2005 04:58 AM |
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Wolfman,
Regulation means so many different things and I feel like you've already made up your mind. So what's the point of me detailing its effectiveness? Rhetorical question . . . and . . . there is no point to it. You've made up your mind.
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Roses Are RedAnd So Am I
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Jebus
Promising
Supreme Hero
TheJester akaJeebs akaJebfoo
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posted October 18, 2005 04:10 PM |
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sorry to jump in like this but I needed to make a comment.. ( I have been following this partially )
... there were 2 girls in my highschool
(population 400-500) that commited suicide. Both with shotguns, both their fathers riffles. I knew them both well.
Not that gun control would prevent them from having attempted suicide (both guns were registered and locked up) but if we banned guns completely, this form of suicide would be much less accessible. Even accidental deaths with children and guns would be limited.
I know that you guys were talking about the 2nd amendment and Peace, you wanted to stick with it's interpretations today, but you guys looked to be straying a bit towards regulation of guns so I just wanted to throw that in.
(I can delete if completely off topic or redundant.)
J
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"You went over my helmet??"
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Russ
Promising
Supreme Hero
blah, blah, blah
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posted October 18, 2005 05:16 PM |
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We almost do have the guns banned anyways (except for very strictly controlled hunting rifles). Those suicides are probably unique cases and as you said not too different from cutting the veins, etc. And if you want to own an illegal gun in Canada, it is not a big deal, anyways. Maybe Ottawa is too far from the USA, but in Toronto is is relatively easy to buy a gun on the black market. There are just SO MANY unregulated guns south of the border that the gun problem is starting to spread to Canada. Any young punk with some cash can go out on the street and buy a gun smuggled from US. This year the gun related murder rate has nearly doubled in Toronto. And I suspect that they don't even count people who die from the gun wounds later to keep the statistics down.
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Wiseman
Known Hero
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posted October 18, 2005 09:35 PM |
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I have always felt that it would be more sensible to arm bears, than to advocate the right of humans to bear arms.
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arachnid
Promising
Famous Hero
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posted October 19, 2005 12:23 AM |
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When did people stop using common sense?
Surely you dont have to change a part of the Constitution just because some people think they have the right to own a rocket launcher (or "wmd")?
This reminds me of stupid warnings like
"May irritate eyes." -- On a can of self-defense pepper spray.
"Caution! Contents hot!" -- On a Domino's Pizza box.
"Do not use intimately." -- On a tube of deodorant.
Why should they you pander to the idiotic? If they cant see owning a AK-47 to protect the home is stupid and irresponsible, should they really be allowed guns in the first place?
Personably id be more worried about protecting the ones you have like "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,...."
Surely the Patriot act is more of a worry than rewriting the second amendment.
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Peacemaker
Honorable
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posted October 19, 2005 12:57 AM |
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Arachnid and others -- I'm going to continue trying to KEEP THIS DISCUSSION ON TRACK.
Let me repeat this statement, and this will be the last time I will say this after which I will abandon this thread as hopeless in light of the fact that the participents apparently can't wrap their minds around the very narrow issues at hand here.
The issues are those stated in the original post. We cannot simply state "the Amendment is stupid" and abandon it. We can't do that because we are a constitutional republic. Unless and until a constitutional majority votes to amend or repeal the amendment, we re stuck with it and have to sort out what to do about that. In a constitutional republic one cannot simply abandon one of the tenets of the Constitution. If that were an option then the Constitution would become meaningless and we would once again become "a nation of (humans), not laws."
Likewise, we cannot simply state "discussion about the meaning of the Second Amendment is lacking in common sense" or that the arguments for and against are "lacking in common sense" for the same reasons. This isn't a pizza box or a can of mace. It's the Constitution -- the founding document presumably establishing the fundamental structure and rights in the country. We take that sort of thing very seriously here. When discussing the parameters of an aspect of the Constitution, the extreme possibilities presented by one of its tenets MUST be taken into consideration because they are considered fundamental aspects of the society and the extremes the language represents will eventually present themselves. It's just a flaw of the animal of written law, but it's a reality one must face in sorting out the true meaning of a given text of language.
The primary reality we're dealing with here is that Americans still have both the right and the accessibility to simple firearms. That is the way it is. And the Constitution is currently being interpreted to guarantee that right. That is the reality, like it or not. So far nobody in real life has forwarded an argument that they have the right to bear WMD's, and that is not a real-life problem. But I'll tell you one thing -- the first time somebody forwards that argument it will be struck down by the Supreme Court as an unreasonable interpretation of the standing Second Amendment. Thus the Constitution prevails again because of the Balance of Powers structure also established in -- you guessed it -- the Constitution.
Just as an aside -- that's why our "very liberal" court system is still so effective -- precisely because it has interpretive latitude respecting the Constitution (which the Conservative extremists have generally labelled "black robe fever.")
However, as I said, we're trying to discuss the meaning of the original Second Amendment. Not whether having arms is a good thing, or a bad thing, or whether people like it or dislike it, or whether or not the parameters the language of the law might arguably encompass sound stupid or "lacking in common sense." If there's one thing I've learned as a lawyer and a judge, it is that "common sense" flies out the window when the possibilities presented by a given legal passage come under fire. It can, and it will, happen.
I personally credit Wolf for starting to think like a lawyer, which (as you folks are proving) is no easy task. He sees the absurdities of both extremes. You might think that elements of this dicussion are "lacking in common sense" but I assure you, those who grapple with the issues we are trying to discuss are the ones who set the parameters we all end up living under. And I'll further assure you that the failure to engage in an extreme, meticulous analysis of the pro's and con's of given language ends up in legal land mines, that blow the sociological infrastructure we all tend to take for granted to smitherines, when the land mines that weren't discovered by the aforementioned analysis get stepped on.
Please don't dissapoint us by proving Wolfman's point that there is no way to discuss a narrow legal issue in this forum because everybody's too liberal-minded to divorce themselves from emotionalism and standing opinions/beliefs and engage in hard-boiled intellectual dialogue. The reason he asked me to frame the thread is because he thought maybe if I did so from a purely scholastic standpoint, perhaps people would take it seriously and we could avoid all this off-topic mess. I defended you all by saying I thought you were capable of dealing with it from an intellectual, analytical point of view.
We can start a whole new thread about whether guns should be in the society or how and why they got there to begin with, but that is NOT the question and it is not what this thread is about. The question is how to interpret the meaning of the standing language in the Constitution.
Forgive me if I am starting to sound irritated. But I've tried to be very specific about why we're keeping this topic narrow. I hope the reasons for that are becoming more clear as we all go through this dialogue.
So, here's the challenge I am presenting to all of you who want to participate in this post.
Pick one of the questions set forth in the original post (which I enumerated so that people could sort out the problems and identify them), research the issue by googling the topic terms, find scholarly papers or other reliable information on the subject, then either state your research results and make your arguments based on your data, or propose new issues raised by your research and analysis.
Welcome to Graduate School, friends!
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Svarog
Honorable
Supreme Hero
statue-loving necrophiliac
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posted October 19, 2005 12:40 PM |
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Another inapt opinion post
Why is it that Americans relate to the Constitution as some mysterious code passed down to them by an alien civilization thousands of years ago, and kick their heads off walls thinking what those mysterious words and commas (!) mean. Heh, even Vatican is more open-minded to interpretations of Moses laws.
Peacemaker, you cant expect non-Americans to join the debate, because we simply arent part of that alien-chosen civilization and dont understand your dogmatic abidment to those codes, instead of getting down to the fundamentals and a clear pragmatic approach to present needs and circumstances.
Furthermore, you mentioned that Americans need for guns arises from the "country's extremely violent past". lol, check out European history and you might redefine terms of what "extreme" and "violent" mean. I also think it's pretty dangerous to say that gun culture is intrinsic in US as "the wine is for the French"; how would you envisage a change, if you keep filling American kids' heads with stuff like that.
THAT being said, you can choose to ignore this part, and only take into account the following entry about the legal interpretation.
I think that the amendment clearly protects individuals right to bear guns. Any opponents of this simply consciously misinterpretate it, fearing to question the need for its existance itself in US society.
The term "well-organized militia" sounds from the context as referring to a state-regulated army, not citizenry.
I also dont think the reason why this provision was included was to provide for a government overthrow by the people, but because you had the problem with so many guns among the people, their previous lifestyle of self-kept security and distrust towards any form of government (especially federal).
I still think that legal flips copuld be doable for the anti-gun faction, without resorting to completely changing the amandment. If we take the term "well-regulated militia" to mean the citizenry (which at the time was the subject of this amendment), then it turns out that guns regulation is not only a viable option, but also a duty of the government. In this case this would be contradictory with the second part of the amandment (uninfringed rights to own guns), since regulation is infringement of some kind.
Now that would turn out to be a really silly discussion in the Supreme Court, instead of simply deciding for whats best and make clear cut laws that override the alien coded ones.
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The meek shall inherit the earth, but NOT its mineral rights.
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