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Old 11-22-2007
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O'Sullivan Bere O'Sullivan Bere is offline
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Re: Will Supreme Court terminate the 2nd Amendment?

Quote:
Originally Posted by MattLarson View Post
The problem here is the specific and deliberate use of "the people".

There is no instance in the Bill of Rights where the phrase "the people" secures anything but an individual right. It secures an individual right in the First Amendment, and an individual right in the Fourth Amendment.

It seems highly illogical to conclude that "the people" means one thing in the First, something else in the Second Amendment, and then reverts to the original meaning in the Fourth Amendment, IMHO.

Personally, I expect the court to either rule on procedural / technical grounds, or to craft something so narrowly applied to the DC ban as to be meaningless in the more general sense of the Second Amendment nationwide.

Matt
Hehe, you're preaching to the choir here Matt. I think it confers an individual right so people can organise militias. I have always agreed on that interpretation. It even makes historical sense.

At the time, local militias were voluntary things where they were merely assemblies of civilians with shotguns, pistols and such who would assemble and perform duties as requested by colonial provincial and then state governments. Members could often come or go as they pleased in many cases and often did, such as if a farmer said he has to return home from the militia unit because his farm needed him. This lasted well into the 1800s, even the Civil War. For example, here in PA, the state government called out for local militias to organise and defend Harrisburg, Carlisle, Camp Hill, the Susquehanna River Bridge at Columbia on the road through York and Lancaster, etc, from Confederate raiding parties during the Gettysburg Campaign to slow them down and aid the Union Army in advancing north in order to give it time to assemble and organise against the Confederate Army of Northern Virginia. Militiamen, especially at earlier times such as colonial Indian fights and local riots, the War of Jenkins' Ear, the French and Indian War, the Revolution, etc, were things where they brought their own guns to do the job given they couldn't rely on the government to provide them, especially if they were needed in an emergency and/or last resort situation for wars, riots, disease quarantines, weather calamities, etc. In war, bounties could be paid and legitimate war booty from the enemy could often be taken as prizes. Hollywood movies are usually poor historical citations due to artistic licence for entertainment purposes, but the movie, The Patriot, did an honest job showing how a militia operated during the Revolution. Authorised privateers with letters of marque and reprisal--also mentioned in the Constitution as to who will be authorised to grant the letters--were pretty much the naval equivalent to the militias.

But, obviously many people and courts have viewed the 2A differently in its meaning and hence the ongoing debate. It owes a final answer to settle the debate. And the SCOTUS has been avoiding it since 1787, which is absolutely disgraceful given it has books of decisions on the other provisions and thus can only be viewed, IMO, as wilfully avoiding its obligation to properly define the 2A along with the rest of the Constitution. It's selection of the D.C. case whilst avoiding all those involving states isn't missed by me and if past practice means anything, it very well could be another selection meant to dodge a final answer. D.C. is federal property and not a state and therefore there is no 'state militia' that its federal residents could organise. Moreover, the 2A was intended as a guarantee from the federal government to the states. It wasn't a guarantee against itself, and D.C. is 'itself.' The SCOTUS could surprise me by having chosen this case to decide the 2A comprehensively, which would be excellent, but longstanding court practice is to only decide issues so much to answer the exact dilemma and not answer anything beyond it. Thus, I suspect this case is a dog and pony show moreso than a final answer if past practice and procedure is followed.

For the individual right argument, though, I also point out two obstacles--1) the SCOTUS' prior agreement with a New Jersey case that the 2A is a federal guarantee to the states and does not prevent state gun restrictions and that the court lack jurisdiction to hear such state ban claims, and 2) if states now only authorise their state National Guard to be their militia, that may make individual ownership claims insofar as against state regulations moot given no other militias are authorised by that state. These are good counterarguments made by the gun ban proponents that explain why there are good and tough questions to be resolved for either direction and that's why the SCOTUS needs to address the 2A comprehensively--whatever century they feel like getting around to it, that is.
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Last edited by O'Sullivan Bere; 11-22-2007 at 07:50 PM.
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