[macintologist]

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.

Infringed in 1787 meant to invalidate or remove. (Proof here if you look at the obsolete definition) The 2nd amendment doesn't say: "Congress shall make no law abridging the right of the people to keep and bear Arms", like it does similarly with the 1st amendment concerning the right to peacefully assemble.

Abridging, but not infringing upon the right of the people to keep and bear arms is not unconstitutional.

The federal government has the power to make laws abridging this right, such as the Assault Weapons ban.

Article I Section 8 Clause 3 of the Constitution: The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

From Wikipedia:

One common way for the Federal government to circumvent the 10th Amendment is to liberally interpret the interstate commerce clause so that acts which have even the slightest potential effect on interstate commerce can be regulated by the federal government. Federal drug laws and gun laws use this justification. Another way is to deny states federal funding if certain state laws do not conform to Federal guidelines. The national 55 mph speed limit and the national 21 year drinking age were imposed through this method; the states would lose highway funding if they refused to pass such laws.

So 1) The 2nd amendment prevents the government from banning ALL arms 2) the Federal government can cleverly use the Interstate Commerse clause to enact legislation abridging the right to keep and bear arms.

Owned.

[MacGorilla]

FYI: Gun control laws have never been held up or struck down based on the 2nd admendment by the Surpreme Court.

[Wiskedjak]

Something I've always been curious about; Where is the "well regulated Militia"?

[SimeyTheLimey]

Your Wikepedia interstate commerce clause article is misleading, and grossly oversimplifies a very complex constitutional issue.

There are limits to how broadly Congress can construe its powers under the interstate commerce clause. Coincidentally, one of the most important cases striking down a statute because Congress interpreted it too broadly happens to be a gun ban law. The case is called United States v. Lopez, and the statute it struck down was the Gun Free Schools Act. Basically, the Court held that just owning a gun has nothing to do with interstate commerce, and Congress can't pretend otherwise to give itself power the Constitution does not give it.

The Spending Power avenue also has its limits. Congress can't require the states to do something that is unconstitutional. So for example, Congress can't use the spending power to coerce states to abridge the First Amendment.

So you come back to whether the Second Amendment protects an individual right or not. The rest of the Bill of Rights protects individual rights, and there is nothing in the Constitutional Conventions (the legislative history of the Bill of Rights) to suggest that the framers intended anything different for what became the Second Amendment (originally numbered the fourth amendment). In fact, quite the opposite. If you go back to the original drafts submitted by the states you can see that they absolutely intended the right to bear arms to be an individual rights. New York's is particularly clear.

The problem is that James Madison was fond of very spare text, and his draft condensed the paragraph-length versions he was given to something that people in later years have misread to be ambiguous. That's why you get courts straining to give power to the government arguing over the position of a comma. He squashed a paragraph down to a single sentence.

Of course, it wasn't ambiguous to anyone in 1789. Everyone knew what the militia was -- it was every able bodied male with his personal sidearm. And everyone know the purpose of the militia was to defend the community against any threat or danger. This was considered a bedrock individual liberty, and in fact, a duty. Early colonial laws required citizens to own arms. In Massachusetts, for example, they had to bring them with them to church to show the community that they had them. If you wanted out of that obligation because of religious scruples, you had to pay someone else to bear arms for you. That idea (the religious opt-out) was also in the drafts for the federal amendment.

The point is also this. The background of the Bill of Rights is that these were the individual rights which many people feared would be lost if their states joined the Union. The Bill of Rights was a political compromise between Federalists and Antifederalists. Federalists agreed to add these protections of individual rights, and in exchange, antifederalists dropped their objections to the new Constitution. To say that the Second Amendment allows the Federal Government to take away the individual right to bear arms is an absolute perversion of its very purpose.

[MacGorilla]

Interesting!

[BRussell]

Originally posted by SimeyTheLimey:
[B]Of course, it wasn't ambiguous to anyone in 1789. Everyone knew what the militia was -- it was every able bodied male with his personal sidearm. And everyone know the purpose of the militia was to defend the community against any threat or danger. This was considered a bedrock individual liberty, and in fact, a duty. Early colonial laws required citizens to own arms. In Massachusetts, for example, they had to bring them with them to church to show the community that they had them. If you wanted out of that obligation because of religious scruples, you had to pay someone else to bear arms for you. That idea (the religious opt-out) was also in the drafts for the federal amendment. /B]

So then what to make of the 2nd Amendment today, since we no longer use the militia approach to national defense.

[BRussell]

Originally posted by MacGorilla:
FYI: Gun control laws have never been held up or struck down based on the 2nd admendment by the Surpreme Court.

I'm sure the Supreme Court has referenced the 2nd Amendment in upholding gun control laws, but I believe you're right that they've never struck down a gun control law on that basis.

[RAILhead]

They can have my gun when they pry it from my... ah well... you know.

YAWN.

[SimeyTheLimey]

Originally posted by BRussell:
So then what to make of the 2nd Amendment today, since we no longer use the militia approach to national defense.

The argument that the Second Amendment is anachronistic, and therefore it can be ignored seems to me to be analogous to saying that because we have dedicated Army bases now it is therefore permissible to randomly quarter troops in people's private dwellings (which is covered in the Third Amendment). Or you could say that we don't use printing presses, so now we can ignore the rights of a free press. It's an argument that ignores the substance of the right in favor of a hypertechnical reading in order to get around the fact that the Constitution forbids the government to do something that governments are always itching to do.

Well that is exactly why it was passed. The Second Amendment was written to permanently prevent the infringment of an individual right. If changing times means that right should be done away with, then the proper way to handle that is to do away with the Amendment that protects it by a Constitutional Amendment.

However, nobody is going to be honest enough to try that, and we know the reason why. The people still regard the right to bear arms as a fundamental liberty just as they did in 1789.

[SVass]

Since our Bill of Rights was copied from the 1689 British Bill of Rights:

And thereupon the said Lords Spiritual and Temporal and Commons... do ... for the vindicating and asserting their ancient rights and liberties declare:

* That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
* That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
* That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
* That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
* That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
* That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
* That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
* That election of members of Parliament ought to be free;
* That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
* That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
* That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
* That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
* And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

I note that our Supreme Court has never displayed any ability to read English.

[BRussell]

Originally posted by SimeyTheLimey:
The argument that the Second Amendment is anachronistic, and therefore it can be ignored seems to me to be analogous to saying that because we have dedicated Army bases now it is therefore permissible to randomly quarter troops in people's private dwellings (which is covered in the Third Amendment). Or you could say that we don't use printing presses, so now we can ignore the rights of a free press. It's an argument that ignores the substance of the right in favor of a hypertechnical reading in order to get around the fact that the Constitution forbids the government to do something that governments are always itching to do.

But the Third Amendment doesn't mention dedicated army bases and the First doesn't mention printing presses. I don't consider reading half of the language of the amendment itself to be hyper-technical - to simply ignore that half seems to be hypo-technical, if you know what I mean.

Here's what I'm getting at: I wonder if we're missing the bigger issue, which is that this Second Amendment was deeply wrapped up in the new country's mistrust of a large standing federal army. That's why half of the Second Amendment is devoted to the militia idea - the antithesis of the standing federal army. But of course now we have the most powerful standing army in the history of the planet, and the idea that we could have militias today and get along in the world is nonsense. In addition, the idea that citizens today could plausibly fight the federal government with their guns if it became too powerful is patently ridiculous, despite what some folks talk about when they run around in camouflage and play pretend.

So I think we've really changed our thinking about the real meaning of the Second Amendment from what it originally was to something new today - I'm not even sure what. Home protection?

[edit] FWIW, I consider this to be an historical issue rather than an attempt to "take away people's guns." I see no reason to give up any individual liberties to the government, including this one, and I'd personally prefer to interpret the constitution as broadly as possible in every case including this one.

[Millennium]

Originally posted by Wiskedjak:
Something I've always been curious about; Where is the "well regulated Militia"?

Nowhere, actually, as it has been replaced by a standing army through a fairly clever trick by which the Congress must vote every two years to keep it going. It's a rubber-stamp vote, but it exploits a loophole nonetheless.

Not that it matters, as that point was only meant as a clarification. Also, "shall not be infringed" would seem to indicate that it must not be done through law or otherwise, unlike the First Amendment which would appear that only law is restricted (as though the government had any other tool).

[Athens]

Originally posted by BRussell:
But the Third Amendment doesn't mention dedicated army bases and the First doesn't mention printing presses. I don't consider reading half of the language of the amendment itself to be hyper-technical - to simply ignore that half seems to be hypo-technical, if you know what I mean.

Here's what I'm getting at: I wonder if we're missing the bigger issue, which is that this Second Amendment was deeply wrapped up in the new country's mistrust of a large standing federal army. That's why half of the Second Amendment is devoted to the militia idea - the antithesis of the standing federal army. But of course now we have the most powerful standing army in the history of the planet, and the idea that we could have militias today and get along in the world is nonsense. In addition, the idea that citizens today could plausibly fight the federal government with their guns if it became too powerful is patently ridiculous, despite what some folks talk about when they run around in camouflage and play pretend.

So I think we've really changed our thinking about the real meaning of the Second Amendment from what it originally was to something new today - I'm not even sure what. Home protection?

[edit] FWIW, I consider this to be an historical issue rather than an attempt to "take away people's guns." I see no reason to give up any individual liberties to the government, including this one, and I'd personally prefer to interpret the constitution as broadly as possible in every case including this one.

That part about citizens fighting the federal government with guns being ridiculous, all you have to do is look at Iraq to see how ridiculous it is. 200 million armed American citizens have more then a fair chance of taking out the American Army.

[macintologist]

Why not see it like this: there are limits to free speech. You can't yell fire in a crowded theater, and you can't spew hate speech which would incite violence. If there are limits to free speech then there can be limits to the 2nd Amendment.

[MacNStein]

Originally posted by macintologist:
Why not see it like this: there are limits to free speech. You can't yell fire in a crowded theater, and you can't spew hate speech which would incite violence. If there are limits to free speech then there can be limits to the 2nd Amendment.

There already are limits, a citizen can't buy fully automatic weapons (without a special permit), can't own a gun in certain cities, and can't carry a handgun without a permit. Just to list a few.

[SimeyTheLimey]

Originally posted by macintologist:
Why not see it like this: there are limits to free speech. You can't yell fire in a crowded theater, and you can't spew hate speech which would incite violence. If there are limits to free speech then there can be limits to the 2nd Amendment.

Probably, although the wording of the two amendments is not the same, and the purpose is different.

However, whenever the government limits free speech it has to meet a very high threshold of need precisely because everyone understands that free speech is a core constitutionally protected individual right. The only regulation permitted is therefore only that regulation that is essential to balance the rights of one individual with the rights of others.

Imagine if the regulation of free speech consisted of asking the government first if you can be allowed to speak your mind, being forced to register your desire to express an opinion, arresting people for speaking in public without a permit, and so on. I think we'd all agree that those were outrageous infringements on free speech rights.

Or imagine if certain localities decided to de facto ban free speech by saying that speech is only allowed with a license -- and then making it so onorous to get a license that ordinary citizens were effectively barred from speaking. Would that be regulation, or is it in reality subverting the right? D.C. and New York both take this approach with their de facto gun bans.

Respecting individual rights doesn't mean being an absolutist because, as you say, rights are usually balanced against the rights of others. However, denying the very existance of the right in order to derogate it is a bad way to begin.

[finboy]

Originally posted by MacNStein:
There already are limits, a citizen can't buy fully automatic weapons (without a special permit), can't own a gun in certain cities, and can't carry a handgun without a permit. Just to list a few.

More importantly, these restrictions have not resulted in a fall in crime rates. Criminals still get automatic weapons when they want them, criminals still get guns in NYC and DC, and criminals still carry guns without a concealed-carry permit.

[macintologist]

Originally posted by SimeyTheLimey:
Imagine if the regulation of free speech consisted of asking the government first if you can be allowed to speak your mind, being forced to register your desire to express an opinion, arresting people for speaking in public without a permit, and so on. I think we'd all agree that those were outrageous infringements on free speech rights.

But doesn't that happen already? We have those "free speech zones" at places like the DNC in Boston as well as Bush's road trips. If you attempt to dissent outside of those free speech zones then you can be arrested for disorderly conduct or something else.

Further reading:
http://www.amconmag.com/12_15_03/feature.html

[BRussell]

Originally posted by Athens:
That part about citizens fighting the federal government with guns being ridiculous, all you have to do is look at Iraq to see how ridiculous it is. 200 million armed American citizens have more then a fair chance of taking out the American Army.

Armed individuals can kill soldiers, but could they really defeat the American military in an all-out armed conflict? I don't think so. The Iraqi military collapsed like a rag doll in a matter of hours. Sure, Iraqi insurgents are killing Americans and other Iraqis. They might even be able to start a civil war there. But they're not going to militarily defeat the American troops there, and a bunch of pissed off armed citizens like Tim McVeigh, though they could certainly kill people if they wanted, are not going to overthrow the US government through military means.

[Athens]

Originally posted by BRussell:
Armed individuals can kill soldiers, but could they really defeat the American military in an all-out armed conflict? I don't think so. The Iraqi military collapsed like a rag doll in a matter of hours. Sure, Iraqi insurgents are killing Americans and other Iraqis. They might even be able to start a civil war there. But they're not going to militarily defeat the American troops there, and a bunch of pissed off armed citizens like Tim McVeigh, though they could certainly kill people if they wanted, are not going to overthrow the US government through military means.

Its a numbers game, If you have 300 000 regular troops and 200 000 000 armed citizens the people will win.

[dcmacdaddy]

Originally posted by Athens:
Its a numbers game, If you have 300 000 regular troops and 200 000 000 armed citizens the people will win.

Well then . . . Let's give a firearm to every citizen over the age of 16. Hell, let's make it mandatory.

That will keep us safe from the tyranny of our own government.

[MacNStein]

Originally posted by dcmacdaddy:
Well then . . . Let's give a firearm to every citizen over the age of 16. Hell, let's make it mandatory.

That will keep us safe from the tyranny of our own government.

Now you're talkin'! The Swiss have the right idea (at least regarding this subject).

[dcmacdaddy]

Originally posted by MacNStein:
Now you're talkin'! The Swiss have the right idea (at least regarding this subject).

Didn't the give away the sarcastic tone of my comment?
Giving everyone a gun would be just as bad as letting no one have a gun.

Think about it, 200 million people with an unregistered, unregulated firearm untrained in its use. That's definitely the way to keep America "safer".

[SimeyTheLimey]

Originally posted by macintologist:
But doesn't that happen already? We have those "free speech zones" at places like the DNC in Boston as well as Bush's road trips. If you attempt to dissent outside of those free speech zones then you can be arrested for disorderly conduct or something else.

No, you are taking the analogy too far. Rather than get sidetracked onto the minutia or what is in fact a rather complicated area of law, deal with the broader point.

The point is that in First Amendment law, where the First Amendment applies, there is a presumption in favor of free speech that the government generally has to overcome if it wants to regulate speech. It can only regulate to the minimal extent necessary and cannot overburden the exercise of the Constitutionally protected right. It can't just dismiss and ignore the right and regulate it away.

The burden should be no less to overcome the individual right protected by the Second Amendment. One right protected by the Bill of Rights is not less protected than the other. Or at least, it ought not to be if the Second Amendment is to be applied with the seriousness a Constitutional provision should be applied with.