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Attempting to interpret the second amendment to the US Constitution

DISCLAIMER: I'm not a lawyer. I have no authority in the realm of constitutional law. I come to you only with common sense and a general ability to read English and interpret the words presented to me. On the bright side, the 2nd amendment is only 27 words. If it were to come along today, it'd be attached to 40,000 pages of miscellaneous whatnots. Luckily, 27 words! This, I can handle. Maybe.

"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."

There's the complete text of the amendment. What does that tell you? Does it appear vague in any way? Many ways? It kinda is, I suppose.

One thing people seem to agree upon today in America is: My right to bear arms shall not be infringed.

Ah, yes...but...

Always a but.

In this case, what constitutes that well-regulated militia? Who regulates this militia? I have questions not being answered by anyone. The reason no one has answers to these questions is because this was never addressed at any point in the history of America as far as I can tell.
So, it's up to us to ask ourselves what constitues a well-regulated militia. Now, me and my buddies carrying AR-15's through the woods - we would be responsible gun owners and I bet no one would get hurt. But in what way would we constitute a well-regulated militia? Take them out of it. Let's say I have a personal arsenal. Am I a well-regulated militia? I'm not being regulated by much of anything. I'm not a militia, am I? I'm just one dude.
For that matter, where does it say anything about assault rifles or semi-automatic handguns or high-capacity magazines, or pump-action shotguns or...any specific type of firearm?
When it was written, they had black powder. Muskets. I don't believe they even had flintlock pistols, but maybe!
So, who's to say this applies to an assault rifle more than one lone gun? It could be that I, not belonging to any well-regulated militia, have no right to bear arms...right?
It could also be interpreted that same way to say very few people have any right to bear any arms as very few of us are members of any type of well-regulated militia. We're just dudes who own guns.
So you tell me how much you know about that, based solely on the text of the amendment. Not on what anybody told you. Not on how you want it to be, but how it is. Please, lemme know what you come up with.



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04/17/2013 7:18PM
Attempting to interpret the second amendment to the US Constitution
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04/17/2013 9:12PM
P1 Russ Griswold
2nd Amendment jurisprudential history in a nutshell... There are two theories on how to interpret the 2nd Amendment. 1) Individual rights theory - some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. (2) Collective rights theory - A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right. This theory is based on the first part of the Amendment - "a well regulated militia..." In 1939 the Court adopted the collective rights theory holding that Congress could regulate the possession of a sawed-off shotgun that had moved across state lines. Specifically the Court said that there was no evidence that a sawed-off shotgun had any "reasonable relationship to the preservation or efficiency of a well regulated militia..." The Court then held that the Framers included the Second Amendment to ensure the effectiveness of the military. Fast forward 70 years when in 2008 the Court revitalized the Amendment holding in a very close 5-4 decision that there was in fact an individual right to possess firearms. The court said that the Miller decision from 1939 only created an exception to the rule that individuals have a right to possess firearms and that exception was that law abiding citizen could use a sawed-off shotgun for any law abiding purpose. This is where we get into the discussion of what types of weapons can be used by law abiding citizens for law abiding purposes. The Court suggested as well that the Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession. Finally in 2010, the Court held in [coincidentally Jimmy] the case of McDonald v City of Chicago, held that the Second Amendment applies to the states thereby erasing any doubt that the individual gun right does in fact exist at the state level as well as the federal level. So, with that background, people should remember that the individual rights theory was only very narrowly adopted [5-4] by the Court in 2008 with a conservative CJ who was appointed by Bush... I take no position on the issue just because if I were to do so, the other side would respond just to tell me I'm either an ignorant redneck Ted Nugent disciple or alternatively some bleeding heart crybaby who wants the criminals to be the only ones with guns...
04/17/2013 9:50PM
P1 Russ Griswold
correction - "that NO law abiding citizen could use a sawed-off shotgun for a law abiding purpose" ... sorry about that
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