2nd Amendment; is it clear?

[kentington]

"Article the fourth.....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 written in the Constitution

This has been discussed before and different people have stated that it is vague or clear. To me it seems clear. I would like to look at this and see what people think.

[Symmetry]

Just to be clear, this is only one version of the second amendment passed.
Sorry to be vague:

There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them.

As passed by the Congress:
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 ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
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.[8]

The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.

Source- wiki, obviously.

[KoolBak]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

[kentington]

Also, I will be voting and posting my view point on this later on. I wont just create a thread like this and leave it ambiguous. On my way out right now though.

[Symmetry]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

[Funkyterrance]

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

Symmetry, I mean this in the nicest way but counting on wikipedia for information is just as bad as trusting dictionary.com to provide definitions of words.

As far as the wording of the original document I feel like it was referring to citizens having weapons in the event that a foreign invader were infiltrating the countryside, etc.. I don't believe the writers had defending against fellow citizens in mind. However, I don't think they would have ever considered taking firearms away from private citizens back then as many people used them to provide food for themselves(hunting). If there was a crime problem back then as there is now I think there would just be an increased incidence of hangings and everyone left would be able to continue using their guns.

[Symmetry]

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

Symmetry, I mean this in the nicest way but counting on wikipedia for information is just as bad as trusting dictionary.com to provide definitions of words.

As far as the wording of the original document I feel like it was referring to citizens having weapons in the event that a foreign invader were infiltrating the countryside, etc.. I don't believe the writers had defending against fellow citizens in mind. However, I don't think they would have ever considered taking firearms away from private citizens back then as many people used them to provide food for themselves(hunting). If there was a crime problem back then as there is now I think there would just be an increased incidence of hangings and everyone left would be able to continue using their guns.

I distrust both sources, but dictionary.com is far more unreliable in that it doesn't give sources.

I'm very skeptical of wiki in general, but it seems reliable here.

So I guess my question is, which phrasing of the 2nd amendment should we discuss?

[Funkyterrance]

I would say the one passed by congress if I had to choose.

[Symmetry]

I would say the one passed by congress if I had to choose.

Fair enough, and I hope you see that there's a lack of clarity even from the start.

[KoolBak]

OK Symmetry....here's wiki's answer for us to analyze:

The term militia (pron.: /mɨˈlɪʃə/),[1] or irregular army, is commonly used today to refer to a military force composed of ordinary citizens[2] to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with multiple distinct but related meanings. Legal and historical meanings of militia include:
Defense activity or service, to protect a community, its territory, property, and laws.[3]
The entire able-bodied population of a community, town, county, or state, available to be called to arms.
A subset of these who may be legally penalized for failing to respond to a call-up.
A subset of these who actually respond to a call-up, regardless of legal obligation.
A private, non-government force, not necessarily directly supported or sanctioned by its government.
An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or state defense forces.
The national police forces in several former communist states such as the Soviet Union and the Warsaw Pact countries, but also in the non-aligned SFR Yugoslavia. The term was inherited in Russia, and other former CIS countries. See: Militia (Police).
In France the equivalent term "Milice" has become tainted due to its use by notorious collaborators with Nazi Germany.[citation needed]
A select militia is composed of a small, non-representative portion of the population,[4] often politicized.[citation needed]

[chang50]

Seems to me the National Guard or reservists both fulfill this "requirement".

mi·li·tia [mi-lish-uh] Show IPA
noun
1.
a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2.
a body of citizen soldiers as distinguished from professional soldiers.
3.
all able-bodied males considered by law eligible for military service.
4.
a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

Definition 4 is why you don't trust dictionary.com to provide definitions of words.

I can see an obvious problem with definition 4.

[thegreekdog]

Here is a partial list of U.S. Supreme Court decisions on the issue of the Second Amendment.

1866 - Ex Parte Milligan - The right of the people to keep and bear arms would not hinder the government from disarming rebels, traitors, etc. when they were at war.

1875 - U.S. v. Cruikshank
1886 - Presser v. Illinois
1891 - Logan v. U.S.
1894 - Miller v. Texas
1908 - Twining v. New Jersey

The Second Amendment applies to Congress, not the states. Various other cases are implicated here in the determination of whether states are subject to the restrictions of the Second Amendment.

1934 - Hamilton v. Regents of the University of California - The school's requirement for military training constitutional because citizens have a duty to defend the government against all enemies (cited 2nd Amendment).

1939 - U.S. v. Miller - National Firearms Act constitutional. "In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in lenght at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

2008 - D.C. v. Heller - Pretty much the first time the Supreme Court held that the Second Amendment protected an individual's right to bear arms. All other cases before it referred to the idea of a collective right, not an individual one.

So, the vagueness of the amendment comes not from the amendment itself but from the D.C. v. Heller case (and the rhetoric around whether it is an individual right or a collective one). You know why gun rights advocates never refer to the history of the amendment like they do for other stuff? Because all the contemporary stuff written about the amendment talks about the collective right, not the individual right.

1995 - U.S. v. Lopez - Gun-free school zones unconstitutional.

1998 - Muscarello v. U.S. -

[Symmetry]

You have heard TGD's argument above, bizarrely claiming that the amendment is not vague because it can be interpreted in many ways.

I am of the opinion that the amendment is vague because it can be interpreted in many different ways.

In the case of this amendment, sometimes these interpretations are polar opposites.

[thegreekdog]

You have heard TGD's argument above, bizarrely claiming that the amendment is not vague because it can be interpreted in many ways.

I am of the opinion that the amendment is vague because it can be interpreted in many different ways.

In the case of this amendment, sometimes these interpretations are polar opposites.

I take umbrage with your characterization of my argument using the word "intepret." The Supreme Court did not interpret the Second Amendment to include an individual right. The Supreme Court decided, for reasons other than the language of the amendment, that the amendment protected an individual right. The Supreme Court ignored the language of the amendment, therefore it could not have interpreted the language of the amendment.

[Symmetry]

You have heard TGD's argument above, bizarrely claiming that the amendment is not vague because it can be interpreted in many ways.

I am of the opinion that the amendment is vague because it can be interpreted in many different ways.

In the case of this amendment, sometimes these interpretations are polar opposites.

I take umbrage with your characterization of my argument using the word "intepret." The Supreme Court did not interpret the Second Amendment to include an individual right. The Supreme Court decided, for reasons other than the language of the amendment, that the amendment protected an individual right. The Supreme Court ignored the language of the amendment, therefore it could not have interpreted the language of the amendment.

Sooooo.... the legal arguments around the meaning of the second amendment aren't all that clear?

[thegreekdog]

You have heard TGD's argument above, bizarrely claiming that the amendment is not vague because it can be interpreted in many ways.

I am of the opinion that the amendment is vague because it can be interpreted in many different ways.

In the case of this amendment, sometimes these interpretations are polar opposites.

I take umbrage with your characterization of my argument using the word "intepret." The Supreme Court did not interpret the Second Amendment to include an individual right. The Supreme Court decided, for reasons other than the language of the amendment, that the amendment protected an individual right. The Supreme Court ignored the language of the amendment, therefore it could not have interpreted the language of the amendment.

Sooooo.... the legal arguments around the meaning of the second amendment aren't all that clear?

In light of the Supreme Court's decision in Heller, it is now clear that the Second Amendment is, since 2008, an individual and collective right.

[Symmetry]

You have heard TGD's argument above, bizarrely claiming that the amendment is not vague because it can be interpreted in many ways.

I am of the opinion that the amendment is vague because it can be interpreted in many different ways.

In the case of this amendment, sometimes these interpretations are polar opposites.

I take umbrage with your characterization of my argument using the word "intepret." The Supreme Court did not interpret the Second Amendment to include an individual right. The Supreme Court decided, for reasons other than the language of the amendment, that the amendment protected an individual right. The Supreme Court ignored the language of the amendment, therefore it could not have interpreted the language of the amendment.

Sooooo.... the legal arguments around the meaning of the second amendment aren't all that clear?

In light of the Supreme Court's decision in Heller, it is now clear that the Second Amendment is, since 2008, an individual and collective right.

An interpretation, and one that split the court.

[thegreekdog]

Okay, let's go through this in more detail.

From the late 18th century until 2008, the Second Amendment was intepreted by the U.S. Supreme Court and most scholars as being a collective right.

In 2008, the U.S. Supreme Court determined that the Second Amendment was both a collective right and an individual right.

The Second Amendment is not ambiguous. The case law around the Second Amendment is ambiguous, but only because of the Heller decision. However, because the U.S. Supreme Court is the be-all and end-all of decisions regarding the Constitution, the law of the land, right now, which is not ambiguous, is that the Second Amendment grants both a collective and individual right to bear arms.

[thegreekdog]

You have heard TGD's argument above, bizarrely claiming that the amendment is not vague because it can be interpreted in many ways.

I am of the opinion that the amendment is vague because it can be interpreted in many different ways.

In the case of this amendment, sometimes these interpretations are polar opposites.

I take umbrage with your characterization of my argument using the word "intepret." The Supreme Court did not interpret the Second Amendment to include an individual right. The Supreme Court decided, for reasons other than the language of the amendment, that the amendment protected an individual right. The Supreme Court ignored the language of the amendment, therefore it could not have interpreted the language of the amendment.

Sooooo.... the legal arguments around the meaning of the second amendment aren't all that clear?

In light of the Supreme Court's decision in Heller, it is now clear that the Second Amendment is, since 2008, an individual and collective right.

An interpretation, and one that split the court.

That does not make the language of the amendment vague.

[Symmetry]

Okay, let's go through this in more detail.

From the late 18th century until 2008, the Second Amendment was intepreted by the U.S. Supreme Court and most scholars as being a collective right.
In 2008, the U.S. Supreme Court determined that the Second Amendment was both a collective right and an individual right.

The Second Amendment is not ambiguous. The case law around the Second Amendment is ambiguous, but only because of the Heller decision. However, because the U.S. Supreme Court is the be-all and end-all of decisions regarding the Constitution, the law of the land, right now, which is not ambiguous, is that the Second Amendment grants both a collective and individual right to bear arms.

You and I disagree. I think the case law and the arguments around the 2nd amendment are due to the 2nd amendment being ambiguous. There are grounds for multiple interpretations. I'm not sure why you think it's clear given the number of tight legal fights over how to interpret it, often involving some radical changes in government policy, but hey, I think it's ambiguous, right from the get go.

[thegreekdog]

Okay, let's go through this in more detail.

From the late 18th century until 2008, the Second Amendment was intepreted by the U.S. Supreme Court and most scholars as being a collective right.
In 2008, the U.S. Supreme Court determined that the Second Amendment was both a collective right and an individual right.

The Second Amendment is not ambiguous. The case law around the Second Amendment is ambiguous, but only because of the Heller decision. However, because the U.S. Supreme Court is the be-all and end-all of decisions regarding the Constitution, the law of the land, right now, which is not ambiguous, is that the Second Amendment grants both a collective and individual right to bear arms.

You and I disagree. I think the case law and the arguments around the 2nd amendment are due to the 2nd amendment being ambiguous. There are grounds for multiple interpretations. I'm not sure why you think it's clear given the number of tight legal fights over how to interpret it, often involving some radical changes in government policy, but hey, I think it's ambiguous, right from the get go.

How did you come up with the theory that it's ambiguous from the get-go, when every major Supreme Court decision and historical document on the subject up until about the year 2000, nearly 300 years of jurisprudence and history, interpreted the Second Amendment one way and only one way?

[BigBallinStalin]

Because he's a special boy.

[Symmetry]

Okay, let's go through this in more detail.

From the late 18th century until 2008, the Second Amendment was intepreted by the U.S. Supreme Court and most scholars as being a collective right.
In 2008, the U.S. Supreme Court determined that the Second Amendment was both a collective right and an individual right.

The Second Amendment is not ambiguous. The case law around the Second Amendment is ambiguous, but only because of the Heller decision. However, because the U.S. Supreme Court is the be-all and end-all of decisions regarding the Constitution, the law of the land, right now, which is not ambiguous, is that the Second Amendment grants both a collective and individual right to bear arms.

You and I disagree. I think the case law and the arguments around the 2nd amendment are due to the 2nd amendment being ambiguous. There are grounds for multiple interpretations. I'm not sure why you think it's clear given the number of tight legal fights over how to interpret it, often involving some radical changes in government policy, but hey, I think it's ambiguous, right from the get go.

How did you come up with the theory that it's ambiguous from the get-go, when every major Supreme Court decision and historical document on the subject up until about the year 2000, nearly 300 years of jurisprudence and history, interpreted the Second Amendment one way and only one way?

From the get go? I posted two different versions entered into law when it was put in place.

What was the one way and the only way it was interpreted for nearly 300 years?

[thegreekdog]

Okay, let's go through this in more detail.

From the late 18th century until 2008, the Second Amendment was intepreted by the U.S. Supreme Court and most scholars as being a collective right.
In 2008, the U.S. Supreme Court determined that the Second Amendment was both a collective right and an individual right.

The Second Amendment is not ambiguous. The case law around the Second Amendment is ambiguous, but only because of the Heller decision. However, because the U.S. Supreme Court is the be-all and end-all of decisions regarding the Constitution, the law of the land, right now, which is not ambiguous, is that the Second Amendment grants both a collective and individual right to bear arms.

You and I disagree. I think the case law and the arguments around the 2nd amendment are due to the 2nd amendment being ambiguous. There are grounds for multiple interpretations. I'm not sure why you think it's clear given the number of tight legal fights over how to interpret it, often involving some radical changes in government policy, but hey, I think it's ambiguous, right from the get go.

How did you come up with the theory that it's ambiguous from the get-go, when every major Supreme Court decision and historical document on the subject up until about the year 2000, nearly 300 years of jurisprudence and history, interpreted the Second Amendment one way and only one way?

From the get go? I posted two different versions entered into law when it was put in place.

What was the one way and the only way it was interpreted for nearly 300 years?

viewtopic.php?f=8&t=184073&start=15#p4019981

[Symmetry]

Okay, let's go through this in more detail.

From the late 18th century until 2008, the Second Amendment was intepreted by the U.S. Supreme Court and most scholars as being a collective right.
In 2008, the U.S. Supreme Court determined that the Second Amendment was both a collective right and an individual right.

The Second Amendment is not ambiguous. The case law around the Second Amendment is ambiguous, but only because of the Heller decision. However, because the U.S. Supreme Court is the be-all and end-all of decisions regarding the Constitution, the law of the land, right now, which is not ambiguous, is that the Second Amendment grants both a collective and individual right to bear arms.

You and I disagree. I think the case law and the arguments around the 2nd amendment are due to the 2nd amendment being ambiguous. There are grounds for multiple interpretations. I'm not sure why you think it's clear given the number of tight legal fights over how to interpret it, often involving some radical changes in government policy, but hey, I think it's ambiguous, right from the get go.

How did you come up with the theory that it's ambiguous from the get-go, when every major Supreme Court decision and historical document on the subject up until about the year 2000, nearly 300 years of jurisprudence and history, interpreted the Second Amendment one way and only one way?

From the get go? I posted two different versions entered into law when it was put in place.

What was the one way and the only way it was interpreted for nearly 300 years?

viewtopic.php?f=8&t=184073&start=15#p4019981

Sorry dude, that was not the one way and the only way, nor is it the one way and the only way now.