The motion is here. An excerpt:
[T]he State of Texas and 37 other States … request that the Court divide oral argument for Petitioners, and allow Greg Abbott, Attorney General of Texas, on behalf of the amici States, 10 minutes of argument time. Petitioners support this motion, and have agreed to cede 10 minutes to the amici States….[B]ecause they are sovereign governmental bodies, with strong interests in preventing crime and in maintaining their extant regulations on firearms, the amici States represent interests unique from those of Petitioners. And the amici States are well positioned to address any federalism concerns regarding the application of the Second Amendment to state and local governments…. [T]he amici States firmly believe that the incorporation of the Second Amendment presents no [federalism] concerns. Denying local governments the power to nullify the Amendment will not increase federal power, mandate any state action pursuant to federal directives, or preclude reasonable state and local regulation of firearms. It will simply prevent local governments, like the federal government, from abrogating the fundamental, individual right to keep and bear arms.
The states’ amicus brief is here. The states that haven’t joined are California (even though it endorsed incorporation in an amicus brief filed at the certiorari petition stage), Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Jersey, New York, Oregon, and Vermont. (All the non-signing attorneys general except the Hawaii AG are Democrats, though 21 of the 32 Democratic attorneys general did sign.)
LarryA says:
Now, if the Democratic leadership would just get the memo that their grassroots aren’t anti-gun any more…
December 17, 2009, 5:54 pmWaste93 says:
Kind of surprised about Vermont in some respects. Vermont is one of the few states that allows concealed carry without a permit.
December 17, 2009, 6:05 pmVasco says:
Bad move. The states are obviously going to argue for a joke standard of review.
December 17, 2009, 6:07 pmSara says:
Something tells me they won’t be arguing to revive P and I.
December 17, 2009, 6:14 pmMatthew Carberry says:
I was wondering about Vermont as well.
Vermont already settled most of its Constitutional RKBA issues in the ruling that confirmed their no-permit requirement. Their Supreme Court made it clear their Const. means what it says on the matter.
What do they have to gain/lose from incorporation of the 2nd? I guess other than to say, come join the freedom train?
Is their not taking a position simply a statement of respect for other states that have chosen a more regulatory path or have different Connies?
I don’t know enough to do anything but conjecture, which is why I’m glad there’s an internet so I can do so publically. =)
December 17, 2009, 6:18 pmJ. Aldridge says:
If only the states had any idea why there is a Second Amendment I don’t think one would be supporting incorporation.
December 17, 2009, 6:36 pmFantasiaWHT says:
Ironic that Wisconsin, one of a tiny number of states to completely ban concealed carry, is joining. Best explained by the fact that we have a Republican AG, though, despite our Democrat governor.
December 17, 2009, 6:50 pmArchitect says:
Assuming incorporation- Can anyone offer me an arc of what will change for gun owners in the Garden State (and the other more restrictive NE) over the following years?
December 17, 2009, 7:33 pmSoronel Haetir says:
The non-signing state I find interesting is Oregon, my understanding is that OR already has permissive gun laws.
December 17, 2009, 8:25 pmSoronel Haetir says:
The best hope is that they will be forced into compliance with their own laws on the time frames police have for issuing permits, as well as curbing the arbitrariness of such approvals. No more one set of laws for the connected and another for everyone else.
December 17, 2009, 8:31 pmDave N. says:
I am not surprised that California did not join. Attorney General Jerry Brown wants as much liberal street cred as possible in his quest to become Governor again.
December 17, 2009, 8:57 pmMatthew Carberry says:
Oregon may be concerned they will be forced to recognize permits from other states. Last time I checked they have limited reciprocity and do not offer non-resident permits to folks not from adjoining states.
If “Bear” is given its true meaning in Federal courts, and I think the SAF has a case in DC on this right now, some ability to carry arms in public, whether openly or concealed, will be recognized as part of the RKBA.
If the model of restrictive possession licensing (“Keeping”) being overturned by Heller is extended to “Bearing”, many of the few remaining arbitrary, overly onerous, discriminatory or non-existent carry licensing schemes (CA, HI, NJ, WI, for example) are likely to fall as well.
December 17, 2009, 9:00 pmtvk says:
The thing I don’t get is this: if 38 states are really in favor of incorporation, they wouldn’t need to argue this to the Supreme Court. With the support of 38 states, you could call a constitutional convention and ratify an amendment explicitly incorporating the second amendment (and basically do whatever you like to the U.S. constitution).
December 17, 2009, 9:01 pmlgm says:
I would like to offer a deal. Liberals agree that the 14-th amendment applies to the 2-nd amendment if conservatives agree that the 2-nd amendment applies to “well regulated militias”, and not to unregulated individuals. Otherwise, here’s hoping for the status quo.
December 17, 2009, 9:22 pmMatthew Carberry says:
Why would individual rights proponents (who are both liberal and conservative, Democrat and Republican) agree to something that has been discarded?
The modern “‘well-regulated militia’ means some form of restrictive communal right” position has been thoroughly discredited, even by Constitutional scholars who would prefer to read it that way.
December 17, 2009, 9:27 pmFantasiaWHT says:
Because a state AG may, by him or herself, have the authority to make the choice to join this amici group. Although it varies by state, I doubt any state rests its authority to ratify a federal constitutional amendment solely in its AG.
December 17, 2009, 9:32 pmloki13 says:
Not exactly. I happen to agree with Amar’s analysis, which is (briefly) that the 2d Am. was originally designed a a bulwark to protect local militias which were so common that for a town to not have one (let alone the state) would be exceptional. So as originally conceived, it would have been a “collective right.” By the time the 14th passed, however, those community militias were almost gone. However, the understanding of the 14th is that (among other things) it would allow the newly freed slaves the right to defend themsleves (have weapons).
So to put it more succinctly, the 2d originally was concerned with the collective right. But those living constitution writers of the 14th wanted it incorporated as an individual right. So it should be.
But that is a little more nuanced than your pithy soundbite.
December 17, 2009, 9:43 pmAmicus States’ Motion for Leave to Participate in Oral Argument in the Second Amendment Incorporation Case | Liberal Whoppers says:
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December 17, 2009, 9:46 pmChris says:
Cf. the majority-of-Congress amicus brief in Heller, by the same people who could have repealed the DC gun ban themselves.
December 17, 2009, 10:31 pmGene Hoffman says:
Concern for being able to arm the militia from the arms that the people had a right to bear both explains the preamble and reminds that it was the people who have a right. Is it only the militia that has a right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures?
J. Aldridge, 38 Attorney’s General think your interpretation of the Fourteenth Amendment is wrong. It’s hard to argue with a supermajority who could amend, but I’m quite certain you will.
-Gene
December 17, 2009, 10:31 pmRyan Waxx says:
Indeed. Arming America was a triumph of nuance over mere facts, after all.
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December 17, 2009, 10:53 pmBama 1L says:
For once I think I agree with J. Aldridge.
It is just weird to see state AGs trooping off to Washington begging the Supremes to incorporate a right against them. Has anything like this ever occurred?
December 17, 2009, 11:15 pmHerb Martin says:
While the political part of the AG may have something to do with joining the brief, there is another reason in place as well.
Wisconsin courts have allowed the banning of concealed carry on the premise that open carry is available — thus meeting the state’s constitutional protection for the right of citizens to bear arms.
Wisconsin — in an unusual way — also seems to follow the rule that their constitution means what it says. Perhaps with restrictions, but not with outright bans.
December 17, 2009, 11:15 pmSoronel Haetir says:
The problem I see with the community militia argument regarding the second amendment is that Congress has plenary authority over how those militia units are to be armed and train. It has the authority to call those forces into national service under limited circumstances. These factors weigh heavily against the constitutional militia being any sort of protection against an tyrannical federal government. The feds would simply declare the state to be in insurrection and the local units would become extra-constitutional.
I’ve also read that some members of the 1st Congress attempted to offer an amendment that would revert the choice of training to the states if Congress chose not to exercise its power in that area, however it was never offered to the states for ratification.
December 17, 2009, 11:34 pmMatthew Carberry says:
loki,
That is more detailed than my “pithy soundbite” true enough. I don’t know that I agree (not that I’m particularly qualified, simply based on other perspectives) with Amar’s historical analysis though.
I would point out that it is the “modern” colectivist argument that I referenced, which in my understanding has different supporting reasoning (“it means the National Guard now” is common) than an originalist “collective overridden by events” position.
December 17, 2009, 11:34 pmSoronel Haetir says:
One other thing, I know these states, or at least a substantially similar group made the same request in Heller and that it was denied. Did the Heller respondents agree like the McDonnel respondents evidently have here?
December 18, 2009, 12:18 amDave N. says:
I honestly don’t know the answer to this, how often is divided argument granted when the entity requesting divided argument IS NOT the Solicitor General?
December 18, 2009, 12:28 amKirk Parker says:
Matthew,
Regarding Oregon and reciprocity, if by ‘limited’ you mean ‘zero’, then you are correct.
Oregon’s only provision for licensed carry by non-residents is that residents of adjoining states (CA, NV, ID, and WA) may apply for OR permits on a discretionary basis. Fortunately for us, many of the OR county sheriffs, even the ones in the Portland area, are supportive of the idea and will issue permits for any reasonable basis.
I know some folks here in WA who are just itching to help someone from a non-adjacent state bring a suit against OR on an equal-protection basis. I assume the state would lose, easily, but worry that in response it might scale back or even completely eliminate non-resident permits entirely.
December 18, 2009, 12:37 amMatthew Carberry says:
Kirk,
I couldn’t remember the details on reciprocity/non-res, just remembered it was bad. Thank you.
I had high hopes after Nordyke (prior to the en banc and then cert by SCOTUS), that in the 9th at least we could use their incorporation ruling to clean up Cali and Oregon and really put the screws to HI.
The carry issue, based on the facts (studies, decades of practical experience of the shall-issue states), is one gun rights topic that seems a no brainer, even under a broad reasonableness standard.
At least as long as “reasonable” involves the Court actually looking at facts and not simply accepting baseless assertions by nervous governments.
December 18, 2009, 1:10 amJ. Aldridge says:
How has it been discredited?
December 18, 2009, 2:16 amJ. Aldridge says:
There is a HUGE difference between public defense of a state through its own populace and the right to do so, and a right for individuals to own a gun.
I don’t know what script the 38 AG’s are towing. I think if the missing gaps are finally filled in over the telling of the right to bear arms they will have a different perspective.
December 18, 2009, 2:25 amGene Hoffman says:
The Heller legal team is almost the same as the McDonald legal team. The Heller team also did not oppose Texas’ request in Heller but it was not granted.
I remain very glad that the silly argument that “the people” doesn’t mean “the people” in the Second Amendment is functionally over.
-Gene
December 18, 2009, 3:13 amlgm says:
This illustrates why this non-lawyer finds legal reasoning baffeling.
Isn’t this going beyond the text. Are you saying that the people have the right to bear arms because arms storage lockers at militia headquarters had not been invented yet?
The 4-th amendment doesn’t have a preamble.
The second amendment is in no danger of amendment. Even the NRA would not support: “Congress shall make no law respecting the right of legal citizens to own and operate firearms.”
December 18, 2009, 8:24 amFederal Farmer says:
We don’t have to make such a fool’s deal…We’re winning.
The only battle we have left is whether the 2nd Amendment also has a militia purpose still, in addition to its individual purpose.
December 18, 2009, 10:19 amAstronerd says:
Without the ability of the common citizen to own, keep, and bear arms, a militia cannot be formed… without arms, the militia would not be “well-regulated” (the term means ‘in working order’ as in ‘well-regulated clock’).
December 18, 2009, 11:43 amhipshot says:
“To disarm the people [is] the most effectual way to enslave them….
December 18, 2009, 11:53 amWho are the militia? They consist now of the whole people, except for a few public officers.
An instance withing the memory of some of this House, will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who as governor of Pennsylvania, to disarm the people; that was the most effectual way to enslave them; but they should not do it openly; but to weaken them, and let them sink gradually, by totally disusing and neglecting the militia.” George Mason
Does anyone think that tyrants change they’re methods over time? I think not!
James T. Carrington says:
How does all of this militia talk square against having a huge standing army and national guard anyways? I’ve not understood enough of the 2nd amendment issues to see how the two concepts line up? The Founding Fathers had made their opinions on standing armies pretty clear, or so I thought – they were not a good idea.
December 18, 2009, 12:25 pmloki13 says:
Matthew Carberry,
I apologize for the last line. Sometimes sarcasm comes too naturally for me. ;) For example….
Wow…. Ryan Waxx…. really? Arming America? I am in awe at the clever response (as always). That’s just an amazing retort, considering I just wrote how common gun ownership was at the time of the founding (referencing that almost all towns had militias). You do well to deploy your vast knowledge against those that agree with you!
December 18, 2009, 1:20 pmKharn says:
I bet Maryland’s AG continues to hide in his office praying for Kennedy to side with the Heller dissenters. Any standard of incorporation would destroy MD’s case law supporting their rarely-issued concealed carry permit scheme.
December 18, 2009, 1:23 pmMatthew Carberry says:
loki,
I never mind being corrected (well, not a lot anyway =) ). I’m here to learn, not teach (though I reserve the right to pontificate) and nuance and precision is the only way to really do that.
December 18, 2009, 2:51 pmKirk Parker says:
Dude, are you trying to overturn the entire basis for modern governance?
December 18, 2009, 3:22 pmMatthew Carberry says:
I’m a rebel, that’s how I roll.
December 18, 2009, 3:34 pmloki13 says:
Matthew Carberry,
Understood. I highly recommend looking at some of Amar’s scholarship (it’s Akhil Amar). If you’re looking for some good, and very readable, background, America’s Constitution, A Biography is an amazing book. Reading it is what rekindled my interest in the law and prompted me to go to law school (I am now a practicing lawyer).
To be more precise, the whole incorporation debate can often turn on interesting issues. Namely, since the 14th was ratified at a different time than the BoR, should the governing interpretation of how the BoR apply to the states be how the BoR originally applied, or how the framers of the 14th believed they applied when they drafted the 14th? It’s a very interesting question for people who subscribe to “originalism” (original expected application, intent, etc.). I happen to think that Amar’s ideas are very persuasive wrt. the 2d Am. I am paraphrasing (and dumbing it down considerably- I recommend looking at his actual work), but it goes like this:
1. When the Constitution was ratified, there was the idea of militias. Not just state militias (of the kind that had fought so successfully in the Revolutionary War) but town/community militias. This is different in concept than the idea floated by many here that every single person was part of some sort of amorphous militia, but in practical terms it’s not too different- every community had a means of protecting itself. The second was written expressly so the Federal Government couldn’t take that right away. In that sense, it was a collective right (and it had nothing to do with individual self-defense, but then again the right of self-defense might have been so obvious the Framers didn’t need to put it in- this is my editorial comment).
2. However, by the time of Reconstruction, there was a prevailing view that individuals had a right to arm themselves. There was a fear that the Southern States would not allow the newly freed black slaves guns to defend themselves, putting them at the mercy of the white population (like the new roving KKK bands). So one of the thoughts behind the PorI incorporation was that the 2d would be incorporated and would allow individual blacks to carry guns. So an individual right.
(this is end of Amar explanation, my further thoughts below)
3. With this understanding, the 2d woul be a collective right against the Federal Govt. and an individual right against state governments. But the Fed. Govt. (under the originalist idea) wouln’t really be in the business of stripping individuals of their guns, so that would be a moot point- unfortunately, the jurisprudence in other areas (see commerce clause) developed in such a way that the Fed. Govt. police power is such the 2d should be an individual right against the Fed. Govt. for consistency, if nothing else. ;)
December 18, 2009, 4:02 pmGuy says:
1) States != AG’s
2) Making a new amendment could be interpreted as an admission that the 14th Amendment doesn’t currently incorporate the Second Amendment. Not only is this distasteful to gun rights advocates, it also changes the debate from a Constitutional argument to a public policy debate – a shift that probably cuts against gun rights advocates in the net.
3) Calling a Constitutional Convention is an extraordinary measure that should only be used if the current Constitution somehow proves to be unworkable or massively inadequate, remember that the Articles of Confederation were “usurped” by the Constitution, which was written in a convention of essentially the same character as the conventions states can call for under this Constitution.
December 18, 2009, 4:41 pmcynic says:
State AGs often put policy outcomes (liberal or conservative) over otherwise-expected institutional interests in having State-friendly legal standards. In Planned Parenthood v. Casey, many liberal AGs filed an amicus urging the Court to retain Roe’s strictest scrutiny, restricting States’ ability to regulate.
In some of the Eleventh Amendment cases, some AGs supported overriding State immunity and exposing their clients to monetary damages. Some AGs even used their discretionary amicus-signing power to ask the Supreme Court to allow damages while simultaneously defending clients in lower courts by asserting immunity.
In Morrison, Justice Souter’s dissent noted that 30-odd AGs joined an amicus supporting the federal Violence Against Women Act, and he also noted legislative history showing that AGs supported its passage with testimony and letters. He criticized the majority for imposing federalism upon States where they didn’t want it. In doing so, he implicitly accepted that AGs speak for State institutional interests, without considering that they might put policy preferences first. But reality suggests otherwise.
I’m sure there are more “stop us before we legislate again” cases out there.
December 18, 2009, 5:16 pmMatthew Carberry says:
loki,
That you for the summary. It’s past time I start looking at the original scholarship rather than the, “paraphrases” isn’t quite the right word, of others. Especially if I’m going to make sweeping statements about the primacy of reason. =)
I’m actually leaving behind finance (I didn’t leave the mortgage industry, the mortgage industry left me) and finishing up my BA in Justice. Looking at going to law school next year.
Besides finding the law, particularly Constitutional law, intriguing, part of what I’m trying to gain is not only knowledge of the issues themselves but learning how to think about them in a legal sense.
Thanks again, and in a general sense, thanks to all.
December 18, 2009, 5:41 pmJNHeath says:
lgm-
Check militia caselaw and you will find that the 2nd Amendment has never applied to that body of law, and that any federal law on the militia, including defining/limiting the membership, can preempt state law *even if the federal law is arguably deficient for the purposes of well-regulating the militia*. Congress can also abolish the militia by absorbing it individual or as units into the regular army, again according to the caselaw.
JNH
December 18, 2009, 7:43 pmBrett Bellmore says:
A well regulated (well equipped and trained) militia might be necessary to the security of a free state, but that doesn’t mean the state wants to be free. The 2nd amendment protects the ability to raise a militia at need, even from a state or local government that doesn’t want there to be a militia, by guaranteeing the right of individuals to own and practice with the relevant weapons. Thus assuring that an armed and trained populace will exist, from which a militia can be expediently raised, even if the government would rather one couldn’t be raised.
December 18, 2009, 7:47 pmAlan says:
Molon Labe!
December 18, 2009, 7:50 pmjcm says:
California+s law is shared by the UK system
December 18, 2009, 8:16 pmGentlemanFromHanover says:
Let me get a little more nuanced, so as to arrive at the truth…
Let us remember that a “militia” is made of men, providing -their own personal weapons- a well-functioning rifle or musket for infantry, a pair of pistols and sword (and horse) for cavalry.
Militias could be any of: 1 – A select militia (like the minutemen, with additional skills and/or responsibilities) that some may not qualify for. If the Nat’l Guard is a militia (which I dispute), it is closest to this kind.
2 – A town militia (which the gentleman I quoted refers to) generally run by local town members, selectmen, etc. and having some relation to the gov’t.
or, and this is important
3 – A Milita unconnected to government, sometimes called an “independent company” like Ethan Allen’s Green Mountain Boys, from what is now VT, (who joined the continental regulars for a short time during the Ticonderoga operation) and operate without — or against — a government. On 19 Apr 1775, the Concord, Westford, Groton, Pepperell, Townsend, Acton, Lexington, etc etc. militias (and those that were clearly the intended basis for the 2nd Amendment) were, at that time, independent company militias, having ousted their government appointed officers in favor of those loyal to the (illegal under the official government law) MA Patriot legislative assembly.
That being said, we must consider the self-evident fact that the phrase “the right of the people”, refers to those things that, excepting only those times, and only for the duration, where they directly deny others’ (fire in a crowded theater, for example), are existent upon birth and must be honored when an individual attempts to exercise that thing that they, by right, wish to do.
In other words, no entity can deny you anything that “is your right”, even if they abhor the action in question. That is why Jeremiah Wright can say G-D America, why Bill Ayers cannot be prosecuted despite “guilty as sin, free as a bird” and why both Keith Olbermann and Glenn Beck must be allowed to comment on the news if the network wants to give them that job. Nazis in Spokane, Cindy Sheehan, Moveon, the NRA, all can present opinions and positions that people find uncomfortable. Freedom so demands it.
Hence, Heller was fundamentally a correct decision in that “rights” are individual. The quoted comment is fundamentally correct in that the 2nd Amendment ALSO encourages training and assembling the local militia and implies that “standing armies” are not the ideal mechanism for homeland defense. (See Patrick Henry’s resolution before the VA delegates 23 Mar 1775 and Federalist Papers and numerous quotes of the founders)
The thing that concerns me about this discussion and the brief itself is the use of phrases like “reasonable restrictions” and “common sense limitations” as I do not think they mean what I would think, and facts demonstrate, mean. Specifically, the only “reasonable” restriction, is none at all as it applies to owning and carrying firearms.
I do not believe, and the founders did not intend, to modify laws of assault, threatening or discharging inappropriately, by the tool used to commit them. In other words, one cannot act recklessly with a firearm (or any other weapon) and escape punishment under the 2nd Amendment.
Some rights are conditional rights, “unreasonable” search and seizure, “Congress shall make no law”. If the 2nd Amendment is conditional, it is, again, that it applies regarless of any condition. In other words – Shall not be -infringed-.. that’s strong language intended to prohibit powder embargos, limitations on withdrawing powder from the “communal” powderhouse, or gov’t applied labels (like felon or insane). Shocking? Not really – why would you allow the very thing the amendment exists to oppose to be empowered to strip individuals of it?? For example, you say, “Hey, the refs can ref and play the game” then say to your opponents, “you can decide who the refs play for.” Or, I’ll just work for you and after I’m done, you get to decide how much to pay me or to pay me at all… would you make that agreement with anyone, much less someone you trusted?
For those that still can’t grasp the concept, try it the other way. WITHOUT the ability to keep arms, beyond the knowledge or reach of government, and WITHOUT means to become competant in the use of those arms, you COULDN’T raise a militia at moments notice.
Halbrooks “Founders’ 2nd Amendment” is an excellent resource if you doubt any of these statements or wish to know more detailed history.
And finally, and randomly:
Safe storage HAD been invented, they were called “Powderhouses”.
The British DID do all the things gun controllers do today, under the same pretenses, and then DID confiscate firearms.
We have a country because of resistence to Gun control. See the orders Gen. Gage gave on 19 Apr 1775.
Arms includes anything our military uses today. The militias at the time of the founding had rifles, pistols, muskets, Shotguns (fowling pieces) and Cannons all privately owned.
Crime and accidents DID happen in the 1700′s, and things really haven’t changed fundamentally, so the argument that “had they known about x y z” is laughable at best and dangerous and insidious at worst.
-PH
December 18, 2009, 9:20 pmGentlemanFromHanover says:
The fourth amendment does have a pre-amble. Unreasonable is stated as a general rationale, then the limitations on goverment are presented (Warrants affirmed, describing the exact thing or person.. etc.)
As militias require private, uninfringed firearm ownership before they can be formed.
December 18, 2009, 9:35 pmCarl from Chicago says:
The argument that the second amendment protects arms to be used for individual purposes (eg. for the “core purpose” of self defense) has been made, and was affirmed.
I suspect one could quite easily and naturally make the argument that the second amendment protects arms also to be used for the purposes of effecting a citizen’s militia. History tells us so, and also, it would be impossible to decouple self-defense from family defense from community defense from state defense from national defense. All of those things … those purposes for which our right to arms is protected … are intractably linked.
Scalia went very light on the militia purpose … most likely because he had to. I didn’t like that … but why should the perfect be the enemy of the good?
December 18, 2009, 11:04 pmCarl from Chicago says:
Two words best describe the author of the above:
Incorrigibly illiberal.
December 18, 2009, 11:14 pmJoe says:
GentlemanFromHanover covered the historical context to why militias are not “collective” very well. Militias organized as voluntary associations of armed individuals for defense of their community. In 1774-1775 the colonists considered it their individual right as British citizens to have arms for self-defense.
Besides Halbrook’s “The Founders’ Second Amendment”, another excellent resource on the history is David E. Young’s “The Founders’ View of the Right to Bear Arms.” I have read both and strongly recommend you read either book or both of them so that you are armed the knowledge of our heritage and history does not have to repeat itself.
December 18, 2009, 11:29 pmJim N. says:
I think those of us that are “pro-gun” should decide what we believe “well-regulated” means.
Does it mean the people have the right to regulate (police) the militia in case they are being used for tyrannical purposes? I have used this argument for years, and it has been the primary argument in countless legal cases from Heller on back.
OR
Does it mean well trained and efficient (like a well regulated clock) as the poster above states? I like this argument, but then to use it negates the long standing former argument.
December 18, 2009, 11:58 pmSoronel Haetir says:
I have to go with the second meaning, it informs the scope of the right but does not directly delineate the right. I actually believe the important word is ‘infringe’, compared to the 1st amendment’s ‘abridge’ I believe ‘infringe’ should be read as a far greater brake on government action.
A simple example, someone sits on your lap without leave, they have infringed your use of your seat, but you still have some use of it. Where if they were to occupy your empty chair they have abridged your use of it. I see every infringement as an abridgment, but not all abridgments are infringing.
December 19, 2009, 1:16 amGentlemanFromHanover says:
Absolutely!
Remember that the Founders had the “Gunpowder embargo” (We were smuggling gunpowder from Dutch shippers out of the carribean, a well-known secret to the English) and the “Cruel act of Perfidy” (A promise to let Bostonians leave the city during the seige that followed Lexington/Concord if they turned in their guns. They turned in their guns, but only a handful were ever let out.) Hence, Soronel has hit the nail on the head – infringement is a specifically chosen word for its specific reason, that even an indirect attack on the right is outside of the power of governments bound under our Constitution. Had the Founders meant to only limit large scale banning, they would have used a word like “shall not be unreasonably denied” or “shall be protected from unusual prohibitions”.
December 19, 2009, 3:11 amGentlemanFromHanover says:
My study of history has clearly shown the best definition to be the second. While I respect certain legal precedent (though Brown v. Board of Edu, Dredd Scott and Plessy v. Ferguson are all examples of precedent where SCOTUS failed miserably) I must favor the overwhelming evidence of founders’ intent.
Consider the example from Halbrook’s “Founders’ 2A” on pg 16 referring to the ability to shoot a gun in not only a “regular”, but in so -particular- a manner as to shoot a pimple off a man’s nose. As well as the virtually universal reference to any “professional soldier” as “a regular”.
December 19, 2009, 3:34 amHence, the only way I can possibly read the term “well-regulated” is to indicate “trained in such a way as to be as nearly skilled as if they were professional soldiers, so as to be passionate and stubborn in defense of their own.”
I would consider “standardization” to be part of “well-regulated”. For example, an AR-15 shooting .223 caliber bullets IS “regular” as it is a common, standardized, plentiful type of ammunition. Someone who knows how to use one brand knows how to use all brands.
A .35 Remington Deer hunting rifle would NOT qualify as “well-regulated” as it is a very “ir-regular” caliber. So while it works in a pinch, one should also own at least one gun that fires a highly common caliber, and operates in a typical way. So an AR-15 may be preferable, a .22 bolt action, 9mm Glock or 1911, a .45 1911/Glock/Sig or a .38 Special/.357 Revolver would satisfy this recommendation. (I use that word because a “law” would violate the critical part “shall not be infringed”) :)
Brett Bellmore says:
The police could, at best, be considered a “select” militia, which the founders considered little better than an army for purposes of securing liberty. More realistically, I think they’d be considered no militia at all, as they are a relatively small group, directly employed by the government. Far more analogous to the military.
A militia is necessary to the security of a free state because it IS the populace, armed, and thus would presumably refuse orders if directed to oppress the populace, and even turn against the government in extremity. While the military are a tool very suitable for oppression, being an arm of the government, not the populace. In that respect the police are definitely more like an army than a militia.
December 19, 2009, 7:36 amhipshot says:
Some of you seem to have misconstrued the term state. It is not *The State*, it is *a state*. that would be *a state of freedom*. The difference in Rhetoric between the 1700s and today not withstanding. But, those of you who are legal scholars should grasp this simple fact; if you bother to consult your Websters Unabridged.
December 19, 2009, 9:06 amSoronel Haetir says:
Eugene has an article on this topic where he comes to the same conclusion. The 2A could have used the word ‘polity’ without changing the amendment’s meaning.
December 19, 2009, 12:58 pmtarpon says:
It’s ironic that the 14th Amendment was designed to allow the newly freed slaves to posses arms, against their Democrat oppressors — The ones who they now vote for in lock step.
You can do the same analysis applied to Jim Crow laws, the KKK and Civil Rights. Weird how people forget history.
Don’t tell me, you thought Abe Lincoln, the founder of the modern Republican party also formed the KKK? WOW, you need to read more if you do.
December 19, 2009, 2:30 pmStuart and Judi Buncher says:
Let me present a little history too one and all. The National Guard did not come into existence until 119 years after the Revolutionary War. Militias in NJ were manditory for all men 15 to 45 years of age and were found in every county. You had to be a US Citizen. No women allowed. You had to bring your own longarm, powder and shot or ball (musket,rifle or shotgun). The militias were our only army in the United States and the law that you must only serve for 2 years was created to prevent militia members from being forced too serve longer.
December 19, 2009, 5:17 pmcekestner says:
I think not. The true implications of 2A – as have been referred to in previous postings – are that the citizenry are empowered to do as Mr.Jefferson so eloquently stated in the seminal document for our country. I.e., “…Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
The Second Amendment attempts to firmly support the potential for armed insurrection.
I think that that’s what JAldridge was saying, and that his read is the correct one. He’s merely saying that the AGs would oppose anything that empowered the citizen to overthrow the government.
“Incorribly liberal?”
Yes, I also am one, and one in the classic sense that the more rights one has, the more freedom one has – and the government that attempts to restrict same can go to the devil. (I will be happy to help them along their journey.)
December 19, 2009, 5:34 pmFederal Farmer says:
Nice hack job. He wrote: incorrigibly illiberal.
December 19, 2009, 7:52 pmcekestner says:
Ooooh, the Spelling Police are here.
December 19, 2009, 9:48 pmFederal Farmer says:
Changing ‘illiberal’ to ‘liberal’ is being incorrigibly disingenous.
December 19, 2009, 9:58 pmGentlemanFromHanover says:
I’m definitely going to get my hands on Young’s book. If it’s even half as good as Halbrooks, I will certainly love it. Thank you for the excellent recommendation.
December 19, 2009, 10:28 pmGentlemanFromHanover says:
Gentlemen (and Ladies) please!! I have been thoroughly enjoying the excellent and thoughtful insights by the many great minds I have been privileged to interact with. Let’s not devolve into such pettiness as is found on the blogs of lesser minds
December 19, 2009, 10:32 pmCarl from Chicago says:
Sorry about that need for spelling lessons. It wasn’t my intent.
Incorrigible as in incapable of correction or reformation, and illiberal as in narrowminded and prejudiced.
My comment was predicated on the insistent communication of a view that the second amendment protects the keeping and bearing of arms exclusively in the context of a government-regulated militia.
And that illiberal interpretation of the 2As purpose is simply not borne out by history or even the text of the amendment.
December 19, 2009, 10:42 pmGentlemanFromHanover says:
I would hope (but don’t hold your breath) that the only thing left to “examine” would be “Does “Shall not be infringed” mean what it seems to, or does NJ, MA, etc. gun law NOT infringe…” Which, of course, is laughable as truth would dictate it means what it says, but anti-gunners will try to deny the facts like they always have.
I would expect that it will take several years, but there likely will be increasing pressure to lighten up on the b.s. restrictions, and things will get better.
December 19, 2009, 10:45 pmOf course, with the trajectory of the economy and jobs situation, things could get ugly real fast and we may be forced into the undesirable action of reconstitution. For my part, I hope that we can acheive full 2A recognition through argument and passionate (but respectful) debate.
It’s hard to say… so many things have happened that accurate predictions are increasingly difficult.
Carl from Chicago says:
My own, non-lawyer take would be that the answer to your question in part depends on whether the court explicitly states that the RKBA is “fundamental” and particularly if they hold that infringements thereof are subject to strict scrutiny.
But yes, given incorporation and years of legal battles …
It’s likely that NJs “assault weapons” ban will be overturned. “Assault weapons” are, of course, merely semiauto firearms that are in common use for lawful purposes. They are among the arms protected by the 2A.
It’s likely that NJs “discriminatory issue” permitting system for the bearing of arms will be turned into a shall-issue system. Clearly, under the second amendment, Americans have a right to keep guns, and to carry them (for the core purpose of self-defense). Given incorporation, the argument that anyone who can lawfully possess guns can also carry them is undeniable.
I doubt that NJs licensing system would be overturned … although it would likely have to be narrowly tailored to serve a compelling governmental interest. So, without too many hoops, hurdles, and fees.
Waiting periods, of you have them, might be overturned as well. Arguments toward the efficacy of waiting periods as a crime-prevention measure are rather weak indeed.
December 19, 2009, 11:14 pmSteveInCO says:
I pray we will get incorporation under the P&I clause of the 14th and that all firearms laws whether federal, state or local are held to a strict scrutiny standard. Why would it be such a burden to require government to make a compelling legal argument in order to deny a fundamental and natural right of free men to defend themselves?
December 21, 2009, 6:22 amorrcountry says:
I am intrigued by tvk’ post about a constitutional convention. Are there any constitutional scholars out there that can elaborate on the point. I think it’s a great idea if it is viable.
December 21, 2009, 10:44 amSLW says:
states, numerous times throughout constitutional scolars mention only a well regulated malitia. WRONG! proven by constitutional experts and judges have set the record straight “all law abiding individuals” included. We have the RIGHT to legally posess firearms for pleasure, or protection. HALLER VS DC again set forth the truth. Gangs,drug dealers,and terrorists can obtain illegal firearms faster than us law abiding citizens can fill out the paperwork. concealed carry has dropped violent crimes derastically, read the f.b.i. reports. Law abiding concealed carrying citizens are reduceing crime not increaseing it.
December 28, 2009, 9:05 am