Tuesday, June 14, 2016

Because I sense so many arguing the 2nd Amendment have no idea what it says:
"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."

As a reformed English teacher, I have to say that the framer of the Amendment could have used a good editor.

John Paul Stevens knows a thing or two about the Constitution and he points out:
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

It makes perfect sense. The first 10 Amendments have to do with what the federal government regulates and what the individual stats regulate. The federal government cannot constrain the states from operating a well-regulated militia to protect a state. States had a right to impose limits on the guns that could be construed as relevant to a militia. The idea that the 2nd Amendment prevented any government from any restriction on gun ownership is an interpretation sponsored by the NRA beginning in 1986.

I've been guilty of posting a meme about the kinds of guns considered by the authors of the 2nd Amendment. It's a cute little thing, but it is, in fact, a bit off the subject, if the subject is what did the framers intend with the amendment. I think the Supreme Court was right in 1939 in US v. Miller when it said that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

Even that stalwart of the NRA, Justice Antonin Scalia, went out of his way in District of Columbia v. Heller 2008 to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected.
The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.

We could also look at how a well-regulated militia functioned in 1791. Men (mostly 16-45 years old) brought their own guns when they patrolled to secure their neighborhood or state. The militia of the time had little in the way of hardware or property. Probably the modern equivalent of militia is the National Guard where participants do not provide ther own arms or munition. Thus one could argue that there is no longer a need for people to provide munitions for the militia, so there is no need for gun ownership. As a gun owner, I'm not happy with that idea, but I can concede that there is room for reasonable regulation.

Just another example of the importance of knowing what you are talking about. That is probably a good pre-requisite to studying ways we might reduce mass murders in our country.