On the second amendment.

[ACPlayer]

I did some reading about the 2nd amendment and was struck by a few things that seem to be at odds with the point of right to bear arms that gun advocates on this forum are making.

It appears that the Supreme Court (staring with Miller) have stated that the 2nd amendment is not about individual rights but about state rights. THis has subsequently been confirmed by various lower court decisions.

In Miller the court stated: The significance of the militia, the Court stated, was that it was composed of 'civilians primarily, soldiers on occasion.' Referring to the requirement for registration of sawed of shut guns which was in dispute in this care the court stated: "in the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."



"Since the Second Amendment right 'to keep and bear arms' applies only to the right of the state to maintain a militia, and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm," the Sixth Court of Appeals ruled in 1971 (Stevens v. United States).

"These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.... The Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated Militia,'" the Supreme Court reiterated in 1980 (Lewis v. United States).

"We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court.... Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show injury when this right is infringed." (Hickman v City of Los Angeles)

Are there citations or any background papers from the constitutional convention that appear to make the right to own weapons an individual right, as opposed to a requirement for the free States to maintain a "regulated" militia.

[David Steele]

Seems right just from the original wording too.
All the guns should go.

D.

[HDPM]

I posted links a while back. And I'm not going to go look for them after a very long day and a few whiskies. /images/graemlins/tongue.gif But do a google search for eugene volokh. Or look through my old posts. He has done some very scholarly research and has a website or a link somewhere. He has written several good articles that argue for an individual rights analysis of the 2d Amendment. He sets forth a pretty good case that the militia language in the 2d is surplussage mostly. Also you are reading too much into Miller IMO. Narrowly read, it means that Miller didn't present the right arguments below. Like, "short barrelled shotguns are used by the military in trench warfare or close quarters battle." (They are and are available to the military then and now) "Not within judicial notice" is nowhere close to meaning "not."

[MMMMMM]

That's a silly decision in Stevens v. United States.


It is wrong to rule the 2nd Amendment only protects the rights of states and not individuals to keep and bear arms. Why? Because the Amendment says:

"...the right of the people to keep and bear arms shall not be infringed."

It does not say "...the right of the states to keep and bear arms shall not be infringed."

Somebody needs to learn how to read.

[ACPlayer]

Interesting.

Here's the link for those interested:
Eugene Volokh Testimony (http://www1.law.ucla.edu/~volokh/beararms/testimon.htm)

Here is another link arguing for individual rights.
Mercury news (http://www.bayarea.com/mld/mercurynews/news/editorial/3287081.htm)

Seems like the law of the land is that it is a State right based on rulings and precedent, but there is plenty of debate on whether it should be or not.

Mr Volokh clearly states that regulation and restrictions on the ownership pass constitutional muster as long as the restriction does not cross some, yet to be decided on, line.

[Kurn, son of Mogh]

The language of Amendment II seems directed from the federal government towards the several states, instructing them that they should not restrict the rights of the people to bear arms, since those people might be needed at a moment's notice to join a militia. However, when taken together with Amendments IX and X, it appears clear to me, that the founding fathers intended that the federal government have no say in gun ownership.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.

[Kurn, son of Mogh]

All the guns should go.

Go tell that to the gangs. Gun control doesn't apply to them.

[ACPlayer]

It would appear that the courts have determined to date that your interpretation is not correct.

[Kurn, son of Mogh]

No doubt.

But that's the point we libertarians have about activist judges and the Constitution. Another school of thought is that these (and other) judges have been way out of line on *many* constitutional issues for a very long time.

But that's a different debate. I primarily oppose gun control for the same reason I oppose the "war" on drugs. Neither works, and both have the effect of turning non-criminals into criminals by simply redefining what is and is not a crime.

Worse, with gun control, it actually puts law-abiding citizens at a disadvantage.

[slamdunkpro]

Um,, not quite.

Miller grew out of a 1938 prosecution of two bootleggers (Jack Miller and Frank Layton) for violating the National Firearms Act by possessing a sawed-off shotgun without having paid the required federal tax. The federal district court dismissed the indictment on the grounds that the National Firearms Act violated the Second Amendment. Freed, Miller and Layton were never heard from again, and thus only the government’s side was heard when the case was argued before the Supreme Court.



The key paragraph of the Supreme Court’s Miller opinion is this:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

This paragraph has been read to support either the Standard Model or the states’ rights theory. By the states’ rights theory, the possession of a gun by any individual has no constitutional protection; the Second Amendment only applies to persons actively on duty in official state militias.



In contrast, the Standard Model reads the case as adopting the “civilized warfare” test of 19th-century state supreme court cases: individuals have a right to own arms, but only the type of arms that are useful for militia service; for example, ownership of rifles is protected, but not ownership of Bowie knives (since Bowie knives were allegedly useful only for fights and brawls). The main case cited as authority by the Miller Court, Aymette v. State, is plainly in the Standard Model, since it interprets the Tennessee Constitution’s right to arms to protect an individual right to own firearms, but only firearms suitable for militia use; Aymette states that the Second Amendment has the same meaning.