I thought federal law trumps state law? And the feds wouldn’t write a law that specifically said the states could violate it? Isn’t that what you said last time we jumped on this merry go round?
Curious of how you (or him, or whoever) determined “right of the people” to not be a “like phrase” to no person, or the accused etc.
Sure… But in the end the language is pretty clear, and I even posted various times a snide meme that shows once you replace “arms” with something like say bacon, no one has a problem reading it anymore.
If the first half says “you have to be in the military to own guns” then it contradicts the second half. Because not everyone is fit for military service, and while the FF’s had no problem excluding large swaths of people from having the BOR’s apply to them, since forth we’ve done away with the lack of universality.
Again, I’m sorta spitballing here, but the question being arbitrated by the SCOTUS wasn’t in regard to the right of a militia or the right of a state to have a militia or even what the purpose of a militia is. It was about an individual right to an “arm” in order to____ (x,y,and z). So, why would Scalia spend any time on the prefatory clause? He acknowledges the clause and admitted briefly explains in his opinion why the operative clause is not limited by it and then moves on to the meat and potatoes so to speak.
I think so. An American citizen, imo, has a codified right to defense against a tyrannical central government (among other things). Let’s assume we agree that the Founders believe the best way for this to be assured was through state militias. Why would they leave the door open for the states to disarm their citizens effectively weaking the 2A to the point that it’s purpose could not be fulfilled? That doesn’t make much sense to me.
Well, we can, and have been for eons - and Heller expressly said it’s ok. It’s not a C&U issue.
No, I’m not - in simply distinguishing from personal use (self-defense, hunting, etc.).
For what purpose? We have a professional military.
It does when there is a conflict and the feds have regulated in the subject matter space. Otherwise, states do what they want (see the 10A).
I don’t that determination was made so much as it’s more helpful to compare verbatim phrases to compare them. It’s in the opinion where does this, you can see his point.
But that’s “begging the question” - you assume the right is for the whole people when that’s what’s up for debate: is that what the operative clause means given the prefatory clause?
It’s not contradictory, if you assume that the prefatory clause is, in fact, a condition to the right. That’s the whole debate.
Because the prefatory clause may limit the right. That’s step one, and you can’t get to step two before truly addressing step one. There may not exist a right outside of the the connection to militia service, which is what the case is about. Scalia says, nah, no limitation, without unpacking why that is so. You can’t gloss over step one.
(Btw, there are conservative jurists who are critical of this. It isn’t purely an ideological or partisan thing.)
Because they had tremendous confidence in the states to handle these issues, and as a practical matter, states wouldn’t have signed up for the Constitution of it contained all these extra restrictions on what they considered their turf, even if it was ostensibly for the good of individuals.
Recall, we think about the BOR and all that as about individuals - but when hashing all this out, it was about states and the feds and the degree to which states would surrender some of their sovereignty to the new government. There wasn’t much in the way of worrying about what injustices states would inflict on their citizens - the federal government was not being set up to be an “end around” for citizens to complain about and be protected from the state governments.
As a result, there’s not much in the way of constituiltional rules bossing states around, even to protect individual liberties. Liberties were thought to be best protected at the state level.
Okay, then yes, we can restrict felons from owning firearms, and it’s not an issue. It is a punishment for a crime. People often lose their rights being protected when they are convicted of crimes. I believe it’s the point.
It’s not called the Bill of Purpose for one thing, and you answer your own question with the statement.
Okay. So how was I wrong before then? (Honest question. Confused here.)
Then I question his judgement.
The operative is a stand alone statement if need be, the prefatory isn’t. The prefatory uses collective language, while the operative uses individualistic language. To assume the collectivism is a condition of individual rights protection basically means that the amendment is saying “you can own a weapon if you join the army”.
I find that conclusion not only dumb, but I believe the FF’s own writings contradict this notion. It’s dumb because no other enumerated right forces one to be part of the collective in order to have your individual rights protected (other than a US citizen which is pretty much moot at this point.)
A well-practiced and well-equipped body of people is necessary to the security of a free State, so no law can be passed limiting the right of the people to possess arms.*
*Obviously, this applies only to the federal government, the type of distant ruler from which our States recently declared and gained independence.
Yes, it’s brief, but he does adress the prefactory clause and eplains why, in his opinion, it does not limit the operative clause.
Should he have delved more deeply? Perhaps. I can understand the argument to go further in depth here.
I don’t know. This is probably worthy of its own discussion. I can’t think of a time in history when the philosophy of individual rights was more prevalent than the late 1700s. From Locke’s influence to the Revolution and drafting of the Constitution a substantial amount of time was spent on the topic of individual rights.
I agree that the convention and Constitution had a lot to do with compromise/sovereignty as it relates to governmental powers.I am less convinced when it comes to the codified rights in the BOR.
That makes no sense. The 2A constitutional right is based on the right of self-defense. After a felon has paid their debt, they don’t surrender other constitutional rights - and certainly there’s no reason they should surrender a right based on self-defense. Aren’t they just as entitled to defend themselves from violence as a non-felon?
No, I don’t. Clearly the purpose, even if you don’t think it limits the 2A right, is to have citizens ready to fight. Well, that purpose is moot now - we have a professional military. We don’t need citizens to be ready to fight. You agree with that, right?
The BOR says, paraphrasing, federal government, you can’t do these things. It’s silent as to states. Where the Constitution is silent as to states, states retain their sovereignty to do as they wish.
Irrelevant. The sentence is read in Its entirety, in context. You don’t get to pretend words inserted aren’t there.
Completely irrelevant, again. That has no bearing on the meaning.
Not if the right is connected to some specific purpose. Again you’re begging the question. You’re starting with an assumption that the operative clause is and is supposed to be about universal individual rights protection. You’re essentially assuming the conclusion we’re trying to figure out by looking at all of the language in the sentence.
Sure, but now you’re making a cruel and unusual punishment argument, and honestly, one I have with myself all the time.
That said, political reality of today means this road is a non starter. When non felons have to petition their local and state governments, pay pole taxes and suffer waiting periods, I don’t see any challenge to this punishment going over too well.
But as a thought experiment, I tend to agree with you. However I’m not looking to start this push legislatively.
In reality? Sure. One of the few benefits of our polarization of our electorate, is no elected CIC will have the political might to order the Armed services to turn it’s boots on the citizens of this country (outside of small pockets of labeled “extremists”.)
That said, I’m not sure how much of that is because we have a relatively well armed society.
However, in the event of significant economic and natural disaster, I certainly can see the need to be armed for your protection, maybe not the government. But never the less, the point of the 2nd isn’t just foreign invaders, it is also enemies domestic.
Real life likelihood of “needing citizens ready to fight”, low. Importance of citizens understanding they are free to stand up for themselves? Very high.
Right, so if the 2nd says (which you may or may not be arguing) you have the right to own a firearm as part of a STATE militia, it prohibits the states from outlawing a militia.
Not at all what I’m doing.
it absolutely does. This claim is absurd, because if the two didn’t contradict themselves there would be no “debate” about it. It would be clear to even the most radical leftist what the words meant. That their is a debate centers entirely around collective right vs individual right.
Yes, because I understand how language works. I can replace “arms” with just about any “innocent” object and this entire conversation goes away. So of course I start at that “assumption” because I read the amendment, and then try and work back to how anyone reasonable person comes to the conclusion that it’s somehow the only strictly conditional right in the BOR.
But then again, most anti-rights folks ignore the definition of militia to suit their agenda.
The “special purpose” for the rest of the BOR is the fact that one is alive, and given by their creator, has certain rights the government can’t trample. But the founders just tossed in this one, dependent on military service, in at #2?
No, it says the federal government can’t mess with the right (whatever its scope). It doesn’t by extension say, “and neither can states”. It is silent. If a state, for its own reason, decided it would have no militia and restricted ownership of weapons, that wouldn’t be unconstitutional under the 2A. The 2A does not compel or guarantee that a state will have a militia.
Sure there would, because prefatory clauses can be limiting, conditional, and qualifying. If the two contradicted one another (and I don’t think they do), then you try to make sense out of it based on what the drafters intended. In short, the prefatory clause means something, and it’s noteworthy for its inclusion when other “rights of the people” left out a prefatory clause.
No, it doesn’t. Here’s an example: “A safe jobsite, being necessary for the good of employee safety, the right of the employees to wear hardhats shall not be infringed.” When you read that, do you read that to mean that all employees in the construction company are entitled to wear hardhats not only on jobsites (which is the obvious connection to use of hardhats), but while sitting in their offices at company headquarters? Of course not. Plain context suggests that you’re guaranteed a right to wear a hardhat in certain circumstances where hardhats are especially useful - the circumstance noted in the prefatory clause. And plain context and horse sense suggests that if they didn’t want to limit the right to wear hardhats, they would have left out the prefatory clause regarding the importance and relevance of the jobsite and the need for safety there.
But you just said Federal Law trumps state law. So how can a state enact a law that makes the 2nd moot, in both clauses?
Hence me pointing out that which you called irrelevant.
It matters, and the fact one speaks about the collective, and the other the individual is very, very relevant.
Using “employees” in the second part is bullshit and you know it. You did that to make your point and it’s weak as hell. It should say people. Once it says people your entire argument falls apart, hence why you limited it to employee and didn’t use people.
Likely also why the second uses PEOPLE and not militia or soilder…
You’ve basically just made my argument for me, likely by mistake, but also likely because you’re trying to win the argument therefore cheated by replacing the general citizenry (people) with specifics (employee).
I’m not qualified to address the latter part of the statement, but there is a gun culture in the US, which is very visible to foreigners off the bat.
It’s just an anecdote but I once witnessed two middle-aged women before a business meeting discuss spread patterns for their home made buckshot. Both of them had a concealed carry permit.
That’s just an example of a very US specific “gun culture”.
