The author is doing what Standard Model proponents do–reaching and straining to force the words of the 2A to comport with their preferred meaning. For example, the author contends that well regulated means ‘functioning properly.’ He does this by finding an example consistent with this meaning, but only by cherry-picking a use of the term outside of a militia context. That is dissembling. The plain truth of the matter is that the term well regulated, when used in the context of military matters, refers to regular vs irregular forces.
Or, as my go-to source (link provided upthread) on the subject puts it:
“Time after time, in dreary expectable ways, the quotes bandied about by Standard Model scholars turn out to be truncated, removed from context, twisted, or applied to a debate different from that over the Second Amendment. Those who would argue with them soon tire of the chase from one misquotation to another, and dismiss the whole exercise—causing the angry reaction from Standard Modelers that they are not taken seriously. The problem is that taking them seriously is precisely what undermines their claims.”
As an aside: How new is this radical re-interpretation of the 2A? One of the individuals cited (favorably) in your link was David Caplan. On Dr. Caplan, the following was written:
“Dr. Caplan (he held a PhD plus his law degree, and thus had the “Dr.” legit) was author of what I count as the first “modern” law review article on the Second Amendment, dating back to 1974, and was a member of the NRA Board for a great many years (30+ as I recall).” [emphasis mine]
So, according to this individual (who, it should be noted, is a proponent of the new interpretation of the 2A), the first published interpretation in this regard appeared in 1974. 1974. What year was the Constitution ratified? Is it really the case that ~200 years of Constitutional scholars got it so completely wrong?
I had written this long drawn out response, but the truth of the matter is that I could have a recording of Madison saying the 2A was intended to be an individual right to arms and you’d still deny it. It blows my mind with all of the source documents that we have, our understanding of the founder’s abhorrence of tyranny, the conditions of colonial American (ie everyone was armed, lol…), etc. etc… Anyone can deny the founders intended for anything other than the codification of the individual right to arms.
As many abortion proponents have said to me over the years, DC V. Heller is the law, you’re just gonna have to deal with it.
As I have said repeatedly, the FFs would have considered it every (white male) citizen’s right to possess a firearm. (In fact, I dare say they considered it so obvious, they wouldn’t feel the need to codify it.) But it is totally clear from context–from the source documents–that the 2A refers to equipping a regulated militia, and that such equipping would not involve militiamen keeping weapons on their person or in their homes.
You’re a fan of Madison. Here’s his original version of the 2A:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Militaries ‘keep and bear arms.’ Individuals own guns.
Military organizations are ‘well regulated.’ Individuals (by definition) are not.
I’m happy to explain. It demonstrates that, in the opinion of someone who espouses it, this interpretation of the 2A doesn’t even appear in the scholarly literature until ~200 years after the 2A was written. This despite the fact that, in the intervening 200 years, there have been literally thousands upon thousands of Constitutional scholars writing volume after volume of scholarship concerning every arcane aspect of the Constitution. The point being, if the ‘individual rights’ interpretation of the 2A is so straightforward–as painfully and abundantly clear as you seem to think it is–why wasn’t it discussed prior to 1973? Why is it that essentially all 2A scholarship prior to that takes as a given that the 2A does NOT guarantee an individual’s right to a weapon? Were two century’s worth of Constitutional scholars all liberal pansies? Were they all gibbering idiots? If your interpretation is so obviously correct, how do you explain the extreme recency of its ascendance?
You’re making my point for me. If this interpretation is so plain and obvious, why was the Heller case even necessary?
Again, not sure what your point is. Madison is even more clear in the first draft.
That probably has to do with the fact that the Federal Government didn’t really start encroaching on your average law-abiding citizens 2A right until the Gun Control Act of 1968. Before that there was NO question as to whether an individual had a right to own a firearm.
The guy you linked (Caplan) wrote “Restoring the Balance: The Second Amendment Revisited” where he clearly states:
“Underlying this amendment are the twin goals of individual and collective defense from violence and aggression, goals which have been recognized by Congress. This Article will demonstrate that current efforts to limit firearms possession to the organized militia undermine the goals and that the theories behind such efforts do not stand the test of constitutional history.”
He (Caplan) agrees with me. So, again, I have no idea what you were trying to prove. Thanks for the additional ammo, though.
The D.C. gun ban is the first time in U.S. history that a government attempts to remove an individual right to firearm ownership and the SCOTUS correct this with the Heller decision.
DC V. Heller was necessary because politicians do whatever they want regardless of how painfully obvious something is. If you disagree, ask Bill Clinton what the definition of “is” is.
I mean, why was the 14th amendment necessary when these words are just as painfully obvious:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
"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."
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
“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.”
Hey, the people means something totally different in the 2A, though…
Again, the issue is not whether an individual has a right to own a firearm; it’s whether the 2A concerns that right. And the vast majority of legal scholarship on the subject says it doesn’t.
Check the date on the piece and you’ll know what I was ‘trying to prove.’
I don’t think that that was the issue in Heller.
As for your references to “the people”: Yes, they are the same people. But that is not the issue. The issue is whether the 2A was intended to allow ‘the people’ to possess weapons on their person and in their home. It was not. It was intended to facilitate the existence and viability of a regular militia.
OK, I think I’ve flogged this long-dead horse enough. Thanks for the civil discussion.
But it didn’t, and there was a reason, and that is why the Reconstruction Amendments had to be passed.
No one in 1865 had the ability to say “hey, did you know slavery’s been illegal all this time - says so in the 5A! No need to change the Constitution.” That’s absurd.[quote=“countingbeans, post:4055, topic:223365”]
Good to know a direct, and objective modern day example of political theory being the driving force for change of law, rather than resting on the laurels of “law and history” is now “the feels” around here.
I can get to the nuggest of my point based on this. What you’re saying here is, generally, to Hell with law and historical understanding if something in law needs to be changed based on a better, more just political theory, and we should be able to read that better, more just theory into the existing language of the Constitution rather than amending the text.
Congratulations - this is precisely what conservatives accuse liberals of doing in legislating from the bench.
US v Miller was a challenge to the National Firearms Act of 1934, which did not restrict the right to own a firearm.
“An Act to provide for the taxation of manufacturers, importers, and dealers in certain firearms and machine guns, to tax the sale or other disposal of such weapons, and to restrict importation and regulate interstate transportation thereof.”
You could argue the opinion infers there’s no individual right, but it wouldn’t be that difficult to counter.
“The court finding simply said that no evidence had been presented to prove that a sawed-off shotgun was a useful military weapon. Of course that was literally correct, since Miller’s side never showed up in court.”
“The case was returned to the lower court where Miller, if living, could have made further arguments on his own behalf. He could have easily and correctly argued that short-barreled shotguns had been popular military weapons in the trenches of the First World War. It was lucky for the federal government that he was dead.”