HockeyDad wrote:You have no constitutional right to own a Nile crocodile so the government will pass whatever laws it wants in regards to Nile crocodiles and you will shut up and **** like it.
I will not shut up and **** like it. I have a 1st Amendment right to express my disagreement with any law infringing on my right to own a Nile crocodile.
Individual yahoos with guns who are not a part of any well regulated militia, which is the context in which the 2nd amendment frames the right to bear arms, do not have a constitutional right to own whatever manner of weapon they want. City, state, and federal governments may, and have, in fact made many laws that control, restrict, or otherwise limit, the type of "arms" an individual can own, the conditions under which they may be purchased, and their use. So there may be additional laws and restrictions imposed in the future. You are free, under the 1st Amendment to whine about it and **** like it.
THE SECOND AMENDMENT RIGHT TO BEAR ARMS
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.
Rarely is the Second Amendment discussed in Constitutional Law textbooks, and other than for a slew of Internet resources (see below), many people simply ignore it or shy away from the intense ideological debates. In this lecture, we cover both Second Amendment jurisprudence and Gun Control controversies.
There are no known rights binding on the states as part of this Amendment. The Second Amendment has NOT been incorporated into the Fourteenth Amendment. This means two things: the right of the people to keep and bear arms is not a fundamental personal right; and state and local governments are free to devise any sort of gun law they choose. Currently there are over 20,000 existing gun laws throughout the U.S., many of which are unenforceable because of the sheer numbers involved. Estimates are that less than 5% of the population obey their local gun laws, and there's a lot of guns out there, over 220 million in civilian hands. Given that the U.S. population is only 260 million, if each person were given a gun, that's 85% of the population that is armed. But of course, it's typical to own more than one gun, so the more conservative estimate is 50 million people, which amounts to about 20% of the population being, well, heavily armed.
How many guns a person owns is their business. From one point of view, it's better if every home in America is protected by at least one good shotgun. From another point of view, it's better all the guns were kept in an arsenal or armory where citizens could get to them. We are more familiar with the latter concept because that's what the military does. What we are NOT familiar with is what the civilian militia should do.
THE MILITIA CLAUSE
The Second Amendment contains two clauses, the Militia Clause (A well regulated Militia being necessary to the security of a free State) and the Right to Arms Clause (the right of the people to keep and bear Arms shall not be infringed). It's customary in Constitutional Law to point out that the second clause is controlled by the first clause. This is expressed technically by saying that "the independent clause is prefaced by a dependent phrase supportive of a structuralist interpretation." You may have to go back to the lecture on constitutional interpretation to review what structuralism is, but as a reminder, it has to do with seeing the Constitution as a living document, a guide to social order, a vision or mission statement. Structuralist interpretation always looks for the good for the whole system of society, so security of a free state is more important than the right of the people. The syntax involves what some people call "reconstructed logic" (making sense out of what doesn't make sense) in that a dependent or subordinate clause is more important than an independent or main clause. Scholars such as Kates (1983) and Levinson (1989) have referred to this interpretation in Constitutional Law as a "national embarrassment."
At the time when it was ratified in 1791, the Second Amendment was intended to have at least two security purposes other than a well-regulated militia: (1) a practical purpose, to protect people from thieves, bandits, Native Americans, and slave uprisings (the Jeffersonian position); and (2) a political purpose, to remind the rest of the world that the United States is well-armed (Hamilton and Madison's position in Federalist Paper #46). Cottrol and Diamond (1991) have recently suggested the idea that it was "White Man's Law", intended to prevent slave insurrections. Madison's original proposal read something like this:
The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of baring arms shall be compelled to render military service in person.
For some unknown reason, Congress reversed the two main clauses and eliminated the religious exemption clause. It's debatable, but Congress may have been expressing a need to regulate the state militias, just as other parts of the Constitution prohibit the states from having standing armies. That's the controversy with the interpretation taken by the Supreme Court in its most noteworthy case on this issue - U.S. v. Miller (1939). A thorough understanding requires a discussion of what exactly a "militia" is.
A BRIEF HISTORY OF THE MILITIA
The American militia movement goes back to 1687. The charter of every American colony included the authority to create militia units separate and distinguishable from troops, and all American colonies passed militia laws under the authority granted by their charters. All white able-bodied free males were required by law to belong to a militia by the statutory law of their colony. Whether or not they actually served in militia units is another question since the laws were enforced laxly and some colonies allowed religious exemptions. The requirement for service could be met by joining either the colony's official militia or joining (if they would have you) a volunteer militia unit. In some colonies, they were supervised by a shadow government that the colonials had set up which would eventually become the Patriot or Revolutionary government. The Minute Men from Massachusetts became the model other states followed, and the Minute Men were the first to fire the shots "heard round the world" at Lexington when the British marched on Concord.
Patriot militias offered a ready source of manpower, supplementing the Continental Army. These state organizations had extensive codes which regulated who could be in the militia, how, when and where militia members would train, who would officer the militia, what the punishment for transgressions would be, how the militia could be called up, etc. In some states officers were elected; in others, they were appointed by the state. An entire state was usually organized into geographical divisions which corresponded with a military division. Divisions were geographically subdivided into brigades, regiments, and companies. In Southern states, regiments often corresponded with counties, and militia captains had additional civil responsibilities, such as handling elections or appointing slave patrols.
The 1792 Uniform Militia Act, which was the act that Congress passed to organize, arm, and discipline the militia, specified that militiamen purchase and maintain their own weapons. This resulted in a militia system with very little central control or support. There were no penalties placed on states that refused to maintain their militias as required by the 1792 Act. Therefore, the states let their official militia units all but die out. The federal government intervened several times to call out and reform the militia, especially in 1805, 1807, 1812, 1814-1815, 1817, 1826, and 1840, but what was left was filled with drunkenness and gambling, among other vices. Most states officially abolished compulsory militia duty during the 1840s, but left the volunteer units alone which would eventually, a long time later, evolve into the National Guard.
By the outbreak of Civil War in 1861, there were still thousands of volunteer companies around. A typical volunteer militia company would have between 30 and 60 members. Actually, there were more volunteer companies in 1861 than, say, five years earlier, because a number of states, anticipating a sectional conflict, had created a buildup of militia forces. When the Confederates fired on Fort Sumter, Congress was not in session, so the President had no way to enlarge the Yankee Army except to call out these private militias. The Confederates created an Army distinct from their militias, and allowed leading citizens in the South to be in charge of its volunteer regiments, a practice the North soon copied.
Following the Civil War, the militia movement was mostly dead, but it was resurrected in ex-Confederate states where the provisional governors had permission to constitute militia. Within a dozen years or so, there was a nationwide increase in the numbers of men who took an interest in militia service. Both official and unofficial units sprung up, drilled, and bought uniforms and arms. They saw action in the labor riots of 1877 and much of the industrial violence that followed. Development of the National Guard began and proceeded fastest in the populous, industrial states of the North - Massachusetts, Connecticut, New York, Pennsylvania, Ohio and Illinois. The ****** bill of 1903 officially marked the birth of the National Guard, and divided American males into two classes: the National Guard (organized militia) and the Reserve Militia (a 1903 term for unorganized militia). A 1916 National Defense Act and a later amendment to it in 1933 set up a poorly-funded dual enlistment system which tried to place everyone into both federal and state employment (the typical National Guard system today), but remnants of unorganized militia remained which by necessity or choice preferred to be self-supporting and/or true to original purposes.
