OK, I think the 2nd Amendment protects the rights of Americans to serve in militias and nothing else (I base this primarily on contemporary national law in the Articles of Confederation regarding "well-regulated militias" and on the fact that "to bear arms" refers to military action).

Be that as it may, the argument in the essay is basically that the 2nd Amendment is obsolete and should be ignored or at least downplayed in our jurisprudence. I think this is the cowardly way out.

Yes, the 2nd Amendment and other aspects of our constitution are obsolete or uninterpretable or inapplicable today (a case in point is the "natural born citizen" debate surrounding John McCain's candidacy). However, if we are to use the constitution as the basis of our governmental system, I believe we have to use it all: anything else makes a mockery of the whole concept of constitutional democracy.

The correct conclusion from the essay is that we need a new constitution. We need a constitutional convention and an adequate national debate regarding the kind of legal foundation required for our country. What we don't need is to start cherry-picking the existing constitution because some portions of it are difficult to understand or to apply.

The arguement is that the 2nd covers Militias or state National Guard, but the 9th and 14th cover personal gun ownership. It's not saying the second is obsolete and needs to be rid of. The second could also be viewed as the ability of State governments to arm agents of the State, cops etc. and I'm pretty sure you wouldn't want us to get rid of that.

I don't know that you have to get that far. However, I don't see what the 2nd Amendment has to do with the DC case.

One of the major issues you have, though, is that we have slowly been moving away from a federal republic and towards a more monolithic democracy. Personally, I would support repealing the 17th amendment and restoring our federal republic.

The idea that the states should have the right to manage infantry-related weapons as relate to raising militias (consisting mostly of civilians who bring their own weapons) seems well established in 2nd Amendment jurisprudence (disclaimer: IANAL). This means that, from the federal perspective, most individuals have an individual right to gun ownership, but that this may be further regulated by state law.

Now, since states generally have this right, it seems to me that the least controversial path open to the court is to hold that Congress possesses all rights normally reserved for the states when passing exclusive legislation relating to DC and therefore has the right to pass arbitrary regulations relating to firearms in that context only. Otherwise you end up with massive governance holes in relation to DC (no possible regulation of intra-DC commerce, and the like).

You may want to see what the (entirely apolitical) commentary of the 2nd Amendment is at Findlaw.net.

My suspicion is that the DC ban is Constitutional, but the federal machine gun bans are not.

My concern with the use of the 9th and 14th amendments in lieu of the 2nd is that it is a means of slow erosion of the right to bear ams, even if the former two amendments more accurately depict the need for an individual citizen to arm himself.

gshenaut- I disagree with your argument that we need a new constitution, insofar as the established system of common law (from the English tradition) tends to enshrine commonly accepted customs with a degree of protection, rather than require individual rights to be explicitly noted by the government. A new constitutional convention would likely shift the US legal system toward a Napoleonic system of law. Given the tendency of the legislature to shirk its responsibilities off on the executive and legislative branches, such a system would be more likely to enact oppressive laws favored by a sitting president or an activist judge.

in a militia sense, once must first "keep" (i.e., own) arms -- at least back then. I don't like guns, but I think the most reasonable interpretation of the "well regulated militia" stuff sees it as a rationale for gun ownership, but not a requirement.

I think the rationale allows for certain limits on gun ownership however, provided that those limits don't prevent enough people from owning weapons that could be used for militia use.

Personally I would like to see a number of gun control measures enacted and those which seem in conflict with the 2nd amendment revoked (including the machine gun ban).

For example, I think that requiring a basic gun safety test and having a clean record regarding mental illness should be a requirement for a gun owner's license, and that I think one should have to have such a license to own a weapon, much like one does to drive a car. I think that such a move would strengthen rather than weaken the promise of the 2nd Amendment.

I would also like to see gun owners held criminally responsible for accidents which occur with their weapons.

Finally I would like to see the waiting period extended to gun shows. We would need to make sure that firearms could be shipped to purchasers, etc, but that should not be too hard.

All of the above reforms would strengthen the second amendment by stressing training and responsibility in gun ownership, much like we do with driving today. I think trigger locks, etc should not be mandatory, but one should be criminally responsible for accidents involving a firearm.

In short, IMO, it isn't a question of whether gun control is good or not but whether the right types of gun control are enacted.

As far as I can tell, one would have to be born in the United States to be President because someone that came to America with a family tree that didn't include anyone ever being in America before could be President.

If the 2nd Amendment is a state right to arm their militias, then each state would have the right to arm anyone they damn well please, Brady Bill and AW ban be damned. After all, it is for the state to determine the constitution of its militias and to set its own standards as to what it considers adequately well-regulated.

But the very notion that this is a state right stems from the original understanding that the Constitution limited only the power of the federal government; state governments were subject only to their own state Constitutions and state courts. That states are still allowed to infringe the right to keep and bear arms is an anachronism dating back to the days when state governments were free to establish religions, allow slavery, and censor the press.

jackalope,

the 9th and 14th amendments do not protect the individual right to bear arms. Read them if you don't believe me. the author wants to stretch the 9th and 14th amendments to apply to a situation they were clearly not meant to apply to (the 14th, for example, is meant to apply to the disenfranchisement of immigrants and accused criminals).

If you read and critically interpret the Bill of Rights and the 14th Amendment, you will see that the author of this passage is clearly trying to stretch and twist the very plain and direct meaning of those words by creating nuance that doesn't exist.

Bill of Rights: <link>

ein,

good response

fsilber,

The States' rights to enact any laws not in conflict with the delegated and prohibited powers listed in the Constitution is the 10th Amendment. It is very plain and clear, and regardless of whether you personally view it as anachronistic, it is clearly and inarguably stated in the Bill of Rights, while the right of individuals to own a gun is not.

Of course, the states cannot legislate religion because they cannot infringe on the first amendment, and the court has consistently affirmed this.

Selene212:

The States' rights to enact any laws not in conflict with the delegated and prohibited powers listed in the Constitution is the 10th Amendment. It is very plain and clear, and regardless of whether you personally view it as anachronistic, it is clearly and inarguably stated in the Bill of Rights, while the right of individuals to own a gun is not.

Of course, the states cannot legislate religion because they cannot infringe on the first amendment, and the court has consistently affirmed this.

The 10th Amendment limits the federal government, not the states. Before and also after the Constitution was ratified, the states could and did regulate religion. There were indeed post-Civil War precedents saying the states could violate any part of the Bill of Rights. Only more recent precedents beginning in the 20th century reversed that.

The refusals to overturn local gun control laws on Constitutional grounds are rooted in the older, mostly-reversed pre-20th Century states-can-do-as-they-please-w­ith-any-of-the-Bill-of-Rights precedents. They are the historical anachronisms.

einhverfr, I need to help you to update your information base which may prove beneficial to the quality of your statement regarding gun control laws.

First and foremost, there is something called instacheck that is accessed via telephone at the time you are trying to make a purchase of any gun. This is run through the Federal Government. Your identity information is given in a form you fill out as a condition of purchase, then the seller must call and verify that you are eligible to purchase that gun. That means they find out if you were convicted of a crime (felony or misdemeanor), or have a judgement against you regarding your mental state of health. This determines if you can make the purchase or not. This is required at any store that sells guns and GUN SHOWS TOO!

The much publicized "Gun show loophole" is a well tailored LIE perpetrated by the media and the gun control lobby (and many politicians). There is no such thing. All purchases made at Gun Shows are under Federal Regulation.

The waiting period for gun purchases went away with the advent of Instacheck also, because the purpose of the waiting period was for the seller to get a response from the authorities as to the cleanliness of your record.

As far as your comment about criminal responsibility for "accidents" goes, there are very few "accidents" that occur with a gun. A gun is either loaded or not, and a responsible gun owner knows to double check to see if their gun is loaded or not prior to handling. Most gun "accidents" are proven to be intentional and appropriate legal action is taken, whether one is charged with murder or negligence involving the use/care of a gun. There is always a police investigation. If it is determined that it was really an accident, then all know about it.

License gun owners? There is no need to establish a gun ownership data base. That has already been addressed by the Federal Government. The National Rifle Association has been responsible for many of the laws that we have today regarding Instacheck and other safeguards against criminals obtaining guns (without committing a crime to do so).

There are those who want to establish lists, but then that may lead to confiscation down the road by well intentioned people who don't look at what happens when the population is deprived of personal weapons. Check the crime stats for England and Australia since they confiscated guns for example. Or better yet, check history for post 1939 when Adolph Hitler had the guns confiscated in Germany as he stated that Germany would be safer without all of those guns in the hands of the people...ask the millions of Jews who died as a result of gun control/confiscation.

We as gun owners are already subjected to background checks every time we make a purchase of a gun! And if we acquire a permit to carry it can be revoked for too many reasons to list here! So please, look into the validity of your arguments, look past what the media and the politicians tell you, the truth is out there for you to find, if you are willing.....

Selene, the context of the application of the 9th and 10th Amendments was to establish that there are rights reserved for "the people" and referenced that and applied that to the 2nd's reference to "the right of the people".