Wouldn't it just make more sense to repeal the 2nd? That would pass the burden back to where it belongs and get rid of all the absurd arguments. States could pass whatever legislation regarding "arms" that their citizens would allow without any Constitutional question.

The variety of laws would soon generate a move for normalizing with federal regulation and put the argument squarely on Congress.

Either way no more silly arguments about the placement of commas or forensic mind reading of long dead authors.

Vins:

You have spoken blasphemy in the minds of the fire-breathing, NRA-window-stickering, out-of-my-cold-dead-hands-screaming gun nuts. There is no compromise for them, no matter the cost of the thousands of victims of gun violence every year, no matter the risk to police forces who face criminals with superior fire-power. Their reading of the Second Amendment would render the phrase "well-regulated militia" a nullity. The Canons of statutory interpretation require that the Courts give meaning to the well-chosen words of the legislature; they can't simply ignore them because they offend their personal ideology.

I have no idea what "well-regulated militia" means, but I am certain it means something.

Unfortunately, I have to believe that these same, conservative defenders of our second amendment rights are equally willing to argue that the President should be able to dismiss the 4th amendment out of hand.

Don't take it personally, Andrew; you have been hearing from fanatics. I've been arguing with these people for years and they're as bad as Linux fanatics who think Microsoft is tapping their phones.

What is most peculiar about RKBA junkies though is that they simply can't conceive of any reasonable position that doesn't involve more guns. Campus shooting? More guns. Some crazy shoots up a schoolyard? We need more guns. Gangs shooting pedestrians? Arm them.

This is about seven miles past "panacea."

My decades of ambivalence re the framers' intended application of the 2nd Amendment generally tilt as follows:

So long as the federal government is generally respectful of other rights, I am convinced that regulation of private arms is no different than regulation of (also constitutionally protected) land use.

However, the "well-regulated militia" has always bothered me immensely, and even moreso now. There are "well-regulated" militias wreaking havoc throughout Iraq, and the current administration would probably have no difficulty determining that an armed and domestically deployed Blackwater constitutes a "well-regulated" militia, for that matter.

At this stage, with myriad liberties at stake, Larry Tribe is decidedly not alone in revisiting the validity and constitutional limits of government repression of gun ownership.

Isn't it telling that in the wake of 9-11, no provisions of the Patriot Act dared touch the Second Admendment.In fact it still does not require that gun sales be made available to law enforcement even if a terrorist may have been the buyer. These NRA nuts don't mind that thier privacy is invaded or thier liberties are sold down the river as long as they can still fondle thier percieved proof of manhood. It doesn't take a rocket scientist to compare the stats(FACTS) on countries with and without gun control to know what is effective in reducing deaths.Just some semblence of brains will do.Unfortunately facts for the ignorant are as disposable as the rights to privacy and habeus corpus.

Andrew, I'm sorry to see you wade into the anti-gun-owner debate unprepared for the reaction. Unfortunately for you, the well has been poisoned by the gun-control crowd's bigoted attacks on legal gun owners.

In the anti-gun-owner world, anyone who deigns to even own a gun is a dangerous risk to the entire community (see Coalition to Stop Gun Violence); anyone who bothers to go through the legal process and get a handgun carry license is a potential workplace shooter (see Brady Campaign); and anyone who dares choose the best available firearm for their own legal purposes (such as target shooting or home defense) is deemed a lunatic with an assault weapon "for which the only purpose is to kill the most people in the shortest amount of time"(never mind that the police patrol officers have had them since the 1960's without massacring anyone)(see Brady Campaign/Violence Policy Center/Coalition to Stop Gun Violence/et Al.).

People of color (such as myself) are very sensitive to subtle racism, and the response from pro-gun-owners to your column reflects a similar sensitivity to perceived bigotry. How else would you respond if you thought someone had made bigoted comments about you and your interests?

The second amendment was written so citizens could protect themselves from the government and be a deterrent to governmental tyranny. You know "revolt" if necessary. The country just finished a REVOLUTION against England and most of the "troops" on the American side brought their own weapons. Protecting ones home against intruders or just protecting ones self against another was an after thought. The right to bear arms, in its purist form, is for people to be able to protect themselves against the government. "When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another...That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government..."

As for the other comments:

1) Repealing the 2A is the only honest argument I've seen from the anti-gun-owner crowd regarding how to go about pursing their aims of mass citizen disarmament a la DC/Chicago/NYC, etc.

2) The "Militia Clause" does not necessarily limit the scope of the operative clause. Ex: "A well educated and regulated electorate, necessary for the good self governance of a free state, the right of the people to keep and read texts, shall not be infringed." Does what I just wrote limit book reading to those registered voters on-site at the local library?

3) the pro-gun-owner community is largely made up of civil libertarians who vehemently oppose government intrusion in all forms. The search and seizure issues are front and center. Maybe more research and less assumption of what the pro-gun-owner crowd believes would be in order.

4) The "more guns" strawman is getting tired. It is incorrect to claim we are asking for gun vending machines on every corner. We ARE asking for the option of arming ourselves if we so choose the responsibility. Unless one is arguing to abolish private security guards and bodyguards, criticism of concealed handgun permit holders is just hot air and hypocritical.

5) The stats don't help the anti-gun-owner crowd. A review of the data among similarly situated countries DOES NOT indicate a correlation between legal gun ownership and the homicide rate. See http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No2_KatesMauseronline.pdf

Note the reflexive recasting of the argument away from reality and into paranoia: gun control advocates are "anti gun owner."

Note also the unqualified argument-by-repeated-assertion ... yeah, real good logic there. Say it over and over, say it louder, use the caplock key.

I'm a gun control advocate, I think it is far too easy to get guns in America, but the only time I feel like we should go all the way and repeal the Second .. is when I run into one of these "cold dead fingers" types with the John Lott quotes and the eager dismissal of people like me as "nanny state" wheenies.

I acknowledge that the majority of gun owners are responsible people who are in no danger of shooting up a kindergarten .. but sometime I really would like to see those "cold dead fingers" types get taken up on their threat.

I had never thought about the tortured structure of the text of the second ammendment (it is strained now that Cohen mentions it) but to me it always seemed that the text was full of caveats and conditions to the right to bear arms. A well regulated militia makes sense, fully automatic weapons and .50 cal sniper rifles for the general population don't. I'm from the rural south, I hunt, my family owns guns AND I'm pro gun-control. Nobody's trying to take my 12 gauge. If you're worried about somebody infringing upon your right to own a tec-9 with armor-piercing bullets, I hope the boogeyman federal government IS watching you. If you are anti gun-control, you are SOFT ON CRIME!

I watched the first round of this debate and its sequel and I've never seen this much vitriol poured into one issue. I have qualms about owning guns and some of the lengths gun-rights advocates go to to demonstrate their rights. I would probably be a threat more to everyone but the threat facing me if I were to use a gun, as I cannot aim worth a damn, responsible people should have the right to defend their properties. The question is where do we draw the line?

We're talking of the SECOND AMENDMENT TO THE CONSTITUTION. Why would the Founding Fathers tack this amendment in the Bill of Rights and set it right after the one protecting free speech and religious freedom, not say after the 5th on self incrimination, or the 6th on speedy trials, or even the 8th against cruel and unusual punishment? The Second Amendment may be an exercise in industrial quantities of fudge, but then again it is that fudging and negotiation that made the US Constitution a document that stands the test of time. However setting it next to the one protecting freedom of speech, Mr. Madison and company decided it was the next most important shortcoming of the new Constitution after no clear guarantee of freedom of expression and belief. And before you add the 4/5th doctrine for slaves, I think that's an apples to oranges debate.

Unfortunately it seems that the discussion here skews to jingoistic extremes instead of a measured solution. Clarity is definitely needed. Hopefully the Supremes, even with the Bush appointess can come up this. If the passionate souls on both sides are spewing but the American public, who probably does not want to go to the extreme of repealing the Second Amendment, but also do not wish people with serious mental problems and violent felons going to a mall and shooting everyone on sight with a gun they legally acquired, then they did their job. If not, well there's always tomorrow.

Just my two cents.

Kruhn:

While I, too, share your hope for clarity on the issue, the Roberts Court has shown itself to be timid and obtuse in its decisions, which doesn't bode well for clarity.

I, however, take issue with your assertion that because it was second, the Second Amendment is behind only freedom of speech, the press and religion in terms of importance. If that were true, one would expect lengthy dissertations on the right to keep and bear arms in the Federalist Papers and in Madison's notes on the Constitutional Convention, similar to those found with the other rights ennumerated in the Bill of Rights. But this "second most important" Amendment is barely mentioned at all.

Once an Amendment is ratified, it becomes part of the Supreme Law of the Land, and no Amendment is more important than another.

During the period when the Constituyion and Bill of rights were written, those that were armed only had muzzle loading guns. Our forefathers could not foresee handguns, or automatic rifles. Yes, let everybody have a muzzle loader for their homes but make guns on the street illegal and a felony. Register all hunters and issue a license and test fire and save the ballistic data from their guns. If there are hunters that live in a city have an armory for storage and when they desire to go hunting, in season, re-issue the rifles to them and after the season is over the guns must be returned. No hunter needs an automatic rifle with more than two rounds. Is it true that 30,000 people are killed each year by guns?

Guns in the hands of any law-abiding American citizen are no danger to anyone.
Odd that the same crowd of liberal fruitcakes whining about controlling all LEGAL GUNS and making the 2nd Amendment null and void, didn't give a sh** when the 5 all-liberal Supreme Court Justices--Souter, Ginsberg, Kennedy, Stephens, and Bryer voted to take away the private property of Americans in the New London Kelo decision. The 4 Supreme Court Justices that voted to protect the private property of Americans from being were all conservatives--Thomas, Renquest,, O'Connor, and Scalia.

Kruhn, the last paragraph of your comment was well written and sums up my feelings on resolving this issue. Thank you.

The right of the people to keep and bear arms, and the militia that guarantee makes possible, stands boldly before the Roberts court.

I am delighted indeed.

Gee folks, virtually every Constitutional Scholar (Lefty or Otherwise) has concluded that the Second Amendment guarantees an INDIVIDUAL the right to keep and bear arms.

If you have any questions as to the INTENT of our Founding Fathers why not take a look at what they WROTE about RKBA at the time....I provided a few examples from a few names you MAY recognize if you actually went to school in the US.

• Thomas Jefferson: "No free man shall ever be debarred the use of arms."

• Samuel Adams: "The Constitution shall never be construed ... to prevent the people of the United States who are peaceable citizens from keeping their own arms."

• Alexander Hamilton: "The best we can hope for concerning the people at large is that they be properly armed."

ghostcommander, you raise a few issues that I feel compelled to address.

You start with:During the period when the Constitution and Bill of rights were written, those that were armed only had muzzle loading guns. Our forefathers could not foresee handguns, or automatic rifles.

Of course, the same can be said for the 1st Amendment. Could the founding fathers have anticipated the Internet? The Internet that is used to recruit new members to hate groups, facilitate contact between pedophiles and minors and support radical terrorism? Should we work to restrict the Internet?

What about the mass media? When Cho killed those students at Virginia Tech he used a firearm, but he also sent his own press kit to NBC, which was duly publicized. Did the gun make him kill, or did his desire for national attention facilitated by a pliant media? Why were such incidents so rare before the mass media age?

Also, the "muzzle loaders" of the day were contemporary military weapons. Wars were fought, won and lost with muzzle loaders. Since the purpose of the second amendment is to provide us with a hedge against the government, and since the government's police and military no longer use muzzle loaders, for the 2nd Amendment to work the population has to have some parity in the type of firearms we can possess.

You then add: Yes, let everybody have a muzzle loader for their homes but make guns on the street illegal and a felony. Register all hunters and issue a license and test fire and save the ballistic data from their guns. If there are hunters that live in a city have an armory for storage and when they desire to go hunting, in season, re-issue the rifles to them and after the season is over the guns must be returned. No hunter needs an automatic rifle with more than two rounds.

As noted earlier, the 2nd has noting to do with hunting. Hunting is simply along for the ride. But, FWIW, the types of weapons typically used by criminals are cheap pistols/revolvers and usually involve, according to the FBI, about 3 shots fired on average. The top scary "boogie men" of weapons -- so called "assault rifles" (real assault rifles are capable of fully automatic fire and are heavily regulated) -- are only used in about 1-2 percent of all fiream homicides (again, FBI data). As noted magazine capacity is a non issue in practical terms.

Also, most of the guns used "on the street" are illegal, used by people with a previous criminal background who buy them on the black market. Just how, exactly, would even a full ban on guns keep them out of the hands of criminals, anymore than the full ban on crack cocaine keeps that drug out of the hands of those same criminals?

You conclude: Is it true that 30,000 people are killed each year by guns?

Well, about half those are suicides. The USA, for all its guns does not lead the world in suicide. In fact, Japan, with almost total firearm restrictions, is ahead per capita. Will someone who is serious about suicide use a gun? Sure. Will they step off a ledge, or in front of a train or go for a drive in the garage if a gun is not available? Sure.

The other half typically involves one criminal killing another one over gang turf, "disrespect" whatever. Incidents like Virginia Tech are very rare statistically, in spite of the media circus they each receive.

In fact, the carnage caused by alcohol far eclipses that caused by firearms. Perhaps we should bring back prohibition first? Of course, a lot of us like to drink and we have decided that it's best to punish those who misuse the substance rather than place draconian bans on the ability to purchase a 12 pack of beer or bottle of fine wine. Why should firearm ownership, which also benefits potential crime victims, be treated so differently?

Legal gun owners are not the problem. If you want to solve the issues faced by the inner city poor then I suggest that focusing on the tool -- the gun -- is shortsighted. However, it does provide an easy scapegoat for urban politicians and activists who lack the guts to address the real issues.

I am myself a deer hunter, and own both a Winchester Model 70 in 30-06 and a Remington Model 700 VS in .300 Winchester. I believe in the right of the citizenry to bear arms, but I don't believe that this right is an unlimited one. My guns are registered and file with my local precint and I keep them stored safely in my home gun safe. Law abiding citizens should have no problem with registering their firearms and I view anyone who does with as much suspicion as I view people driving unregistered and uninsured automobiles.
I have also taken gun safety training and think that such training should be mandatory for all gun

The simple answer for the projection is the skewering of the debate to extremism by the gun lobby.

Go to the NRA website and find me the section covering anything like "enforcing existing laws", it doesn't exist. Which is funny since all they ever scream about is the effect of new legislation on legal owners, and how the government should just enforce existing laws instead of crafting new ones. The gun debate is driven by the gun stores who control (are on the board of directors) of the NRA, - a small % of gunstores sell the vast majority of crime guns.

Why? The ubiquitous republican sophistry to misuse the law to enrich themselves and cover for illegality.

The other favorite shibolleth is the slippery slope to universal disarmament of US civilians. This country is so well armed that any rumored peep of systemic disarmament would literally produced armed men in the streets.

You can't have a reasoned debate with people who believe that a UN conference on international trade of small arms was coming in black helicopters to confiscate their shotguns. 100,000 certified propaganda victims wrote letters to the UN last july in protest of something they don't comprehend.

I hardly ever post on these things, but I'm taking issue here. People, you need to calm down a little bit.

Obviously, guns have proliferated FAR too much into our streets. Immediately, NRA-types like to start pointing out that most gun-owners are law abiding citizens whenever anyone brings up gun control. I'm also a gun-owning citizen. And I'm definitely for more gun control. As it stands, you can buy nearly anything and keep it on your property. Even legally owned, no American requires the services of any fully automatic firearm. Maybe they shouldn't be explicitly banned, but they should certainly be heavily regulated. I'll also bring up that our system is VERY soft on gun-related offenders. Our prosecuting system is supposed to hit you with a mandatory sentence upgrade whenever a gun is used in any crime. And it's the first bit sacrificed in a plea deal. Also, it's far too easy for criminals to gain access again to more firearms, especially handguns. Any law-abiding citizen shouldn't be alarmed that a bit more laws are distancing the illegal from legal gun ownership.

Then again, repealing the Second Amendment is an absolute exercise in stupidity. Legal gun ownership isn't the cause of the vast majority of gun-related crimes. Last I heard, the FBI posted that nine out of ten firearms used in felony crimes were garnered illegally. Obviously, it wasn't us legal shooters who were responsible for the vast majority of your gun crime. The problem is, as I mentioned before, it's far too easy to gain a firearm ILLEGALLY. Sure, legal gun ownership should be restricted, but the more pressing question is how to make sure that those weapons are in the hands of legally carrying citizens for their defense and not in the hands of criminals who will get the first shot.

And I think anyone figuring that the article expressly says individuals can own guns isn't reading well. They obviously brought up a militia for a reason. Then again, a real militia probably hasn't seen the light of day in America in probably the better part of a century. Individul Founders obviously had one opinion on weapons, others had a different view. Regardless, it doesn't matter as much right now. Obviously, without a well-regulated militia, Americans are charged with their own personal defense, unless you'd like your local NRA chapters to register as militias with the government for the purposes of owning firearms.

And as I said, I wouldn't be against more regulations like that. The more we know about the people who own guns, the better. But to say that firearms only belong in the hands of militant structures and not your responsible, well-trained citizen protecting himself against the vast amaounts of illegally garnered firearms on our streets is ludicrous. The Founder's whole passage is antiquated, but if a milita is necessary for the well-being of our state, and there are no organized militias, you'd better believe that the government should allow the ownership of personal firearms.

I would appreciate help from posters on this question. There must not be an absolute right to "bear arms" because the government does not allow (I hope) individual ownership of RPG's, artillery pieces, or nuclear weapons. You clearly have to draw a line along the continuum of "arms." So, isn't all this just a matter of haggling over where we the people (i.e. the government) are going to draw the line? What is the NRA's position on this? Surely, they don't argue that I should be allowed a backyard mortar, so, again, aren't we just haggling over what I can own and not over some supposedly divine right of arms ownership?

The following excerpt from debate in the House of Representatives, December 1807, on a resolution for arming the militia 16 years following adoption of the Bill of Rights, explains everything you really need to know about the Second Amendment. The discussion was about various modes or methods for arming the militia -

This mode was likewise on a number of grounds deemed by Mr. Bacon to be highly exceptionable. It was so in the first place, on general principles, as it went to defeat one of the very objects which it was the design of the Constitution to secure by an armed and disciplined militia, composed of the great body of the citizens. Those objects it was apprehended were twofold. They were not only that the great mass of the people should be prepared on any sudden emergency to oppose the sudden invasion of a foreign external foe, and to suppress internal commotions, but that they should at all times be both ready and able to resist domestic usurpation, and to defend themselves against those arbitrary exactions and unconstitutional oppressions, with which they might in process of time be loaded, even by the machinations of their own rulers: for this purpose it was essential that the arms which they might be called upon to wield should be exclusively their own, subject to their entire control, and which no power on earth had a right lawfully to wrest from their hands. But if, under the show of arming the militia, the Government undertook to provide for all the arms in the nation, to deposit them in such places as they may appoint, to be used at such times and in such manner as they should prescribe, and to be recalled when they should think fit, what became of the substantial independence of the citizens, and where were the effective means which they would in a little time possess for asserting it, should they ever be reduced to that necessity?

History of Congress, H. of R., Arming the Militia, December 1807, pages 1041-1042

Macgriffith: I would appreciate help from posters on this question. There must not be an absolute right to "bear arms" because the government does not allow (I hope) individual ownership of RPG's, artillery pieces, or nuclear weapons. You clearly have to draw a line along the continuum of "arms." So, isn't all this just a matter of haggling over where we the people (i.e. the government) are going to draw the line? What is the NRA's position on this? Surely, they don't argue that I should be allowed a backyard mortar, so, again, aren't we just haggling over what I can own and not over some supposedly divine right of arms ownership?
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There is a difference between arms and ordnance, that was well established at the time and today. Arms, as defined as a "personal stand of arms" are the common personal arms an infantry soldier of the day would have. Ordnance is cannons, etc.

There are some that argue that ordnance is covered under arms, but that is hardly the mainstream position, nor, IMO, supported by documentation of the period and I can't find NRA or other mainstream pro 2nd scholars supporting this position.

BTW, you can own an artillery piece today,and in most states a fully automatic weapon. However, they are highly regulated as "Class III" devices with extensive background checks, an additional tax and various market supply restrictions that make the cost of an M-16 over $10,000. They are currently considered as a privileged, rather than a right.

As for the divine right of firearm ownership... it's as basic as the divine right to self protection and self determination. If there are no arms at all, then you are at the mercy of those who are stronger or more numerous. At worst, both you and a criminal having a firearm, then it's an even flip of the coin (and if you are train with the firearm much better odds).

And, on the political aspect, while some may feel that America is free from ever having a tyrant... well, I don't quite have that much faith. Another world-wide depression, a terrorist attack using nukes on US soil, a pandemic -- who knows what will happen to our neat, orderly Republic. Or, even if the government stands, how easy it will be to live in a national Katrina for a number of months where you have something a desperate mob may want.

Your analysis is wrong It is also dishonest.

More importantly, "the right of the people to keep and bear arms shall not be infringed" is plain english and and isn't up to debate as to meaning. "shall" has the same legal meaning today as it did then.

Unfortunately, in order to argue for control one must first claim the A2 doesn't mean what it says it means, else gun control is dead letter, and that is the real issue. Like it or not, you can not get around that problem. To be in favor of gun control you either have to be intellectually dishonest, or re-define the meaning of the clear language of the A2.

The problem is pro-gun control crowd does not want to pursue changing the constitution by amending it because of the risk of failure. Some, argue that the NRA has avoid direct constitutional challenge for the same reason.

If rational and logical debate (reason) is applied to this problem rather than emotionally responses, perhaps real debate of the real issues will occur

If it is agreed that the A2 is an individual right, regardless of militia membership, then just like the A1. we can have a can have an honest debate about the limits of that right.

Yes, I believe there are limits to that right, but less so than most posters here.

When a poster talks about needing or not needing, they have already demonstrated their lack of understanding of the right and the issues surrounding it, and brought emotion and beliefs to the discussion, rather than the meaning and application of the law.

I strongly suggest people take the time to re-read or read for the first time the Declaration of Independence, the Preamble to the US Constitution and St. George's commentaries on the Blackstone writings, before they start talking about what the A2 does or does not mean. The term "free state" had nothing to do with state or states as that term has come to mean today, but liberty itself!

To: kreid

Thanks for the information and taking the trouble to respond. I was not aware of the arms/ordinance distinction. To take your M-16 example, though, are you conceding that the government has the right to regulate (infringe upon) some types of "weaponry?" If so, then am I on the right track in saying that the argument is about the sensible place to draw the line? My shotgun and revolver are likely to fall on one side of the line (in Colorado, at least) as a matter of political agreement and the M-16 you reference falls, to all extents and purposes, on the other.

Feckless posted:Go to the NRA website and find me the section covering anything like "enforcing existing laws", it doesn't exist. Which is funny since all they ever scream about is the effect of new legislation on legal owners, and how the government should just enforce existing laws instead of crafting new ones. The gun debate is driven by the gun stores who control (are on the board of directors) of the NRA, - a small % of gunstores sell the vast majority of crime guns.
___________

Actually, the NRA is controlled by over 4 million active, individual members. We vote, we make calls and quite often we are well out in front of what the organization itself actually does. Contrast that to the very much non-grass roots gun control effort sponsored in great part by George Soros and the Joyce Foundation and a variety of big city mayors looking for a scapegoat for their failed social programs.

The NRA actually initially resisted Parker/Heller, which was brought forward by members of the Libertarian CATO Institute. Many of the extremist gun owners actually consider the NRA to be more interested in the status quo than anything else. I disagree, but that is not an uncommon perception.

And, FWIW, there are actually more than a few Democrats, particularly those living outside of the big East and West Coast cities, that support the NRA as well. There are gay groups supporting the 2nd, such as the Pink Pistols (they want to have a say in the next bashing)and perhaps the most aggressive non-fringe group supporting the 2nd are the Jews for the Preservation of Firearm Ownership who, for obvious reasons, appreciate the negative impact of gun control and state power. There are a growing number of women buying guns not just for protection, but for the enjoyment of shooting. The stereotype of bubba redneck gun owner exists, but like all stereotypes the reality is not that simple.

Personally, I think GWB is the worst president we have seen, the Iraq invasion was was a serious and error in judgment compounded by horrible execution in the occupation, believe in Gay rights, the end to the war on drugs, the separation of church and state the full freedom of the press, the full freedom outlined by the 4th and 5th Amendments and the full freedom of the 2nd Amendment. Not a big believer in social welfare OR corporate welfare. Frankly, I'm hardly all that unique as a gun owner. You must not know many gun owners.

By the way, gun control in the US generally got it's start in the reconstruction South as a means to keep guns out of the hands of blacks. Didn't like getting shot at when the good old boys rode up with the white sheets and a noose. Today Jesse Jackson is a big gun control proponent (which, frankly, says a lot about the validity of the position, IMO), yet we have all likely seen that photo of Malcom X with the M1 carbine in his hands, looking out the window because he had no faith in the ability or willingness of the Chicago Police Department to protect his life.

Today, in many large cities, gun control still serves to keep firearms out of the hands of law abiding minorities yet does nothing to keep them out of the hands of the gangbangers. A lot of that was drive by the race riots of the 1960s, and the desire to keep the power out of the hands of the people.

To Macgriffith

That's one of the sticking points. It is expected that Parker/Heller will be too narrow to address that issue specifically (and other similar concerns). Those will likely be decided in subsequent cases should the individual rights position be reestablished.

Actually, I think select fire weapons like a M-16 would be covered as militia weapons.

From a practical standpoint, most crime is actually committed by pistols and, I BELIEVE, most are cheap revolvers, or used to be. Maybe cheap .380 semi autos now, or similar. In incidents like Columbine and I believe the Luby's murders the shotgun was the most lethal weapon used. For comparison, only 1-2 percent of firearm homicides are committed using semiautomatic "assault weapons" (real assault weapons are, by definition, select fire) and the actual use of full auto weapons, when available, was far less than urban legend would suggest even in the Al Capone days. These weapons are too expensive and too hard to conceal for most criminal utility.

There are a lot of people who would clearly like to limit your ownership of firearms to black powder, single shot deer rifles. Others want select fire weapons or at least an end to the emotional (but fact-free) efforts against semi auto rifles and others want artillery. I would hope the lines are redrawn, well down the road, based on facts, non-political Constitutional analysis and not emotion. Where the line will be drawn is hard to say.

The real option, for those who dislike the intent of the founders or who think the 2nd is outdated, is to push to Amend the Constitution. Lawrence Tribe, the well regarded Harvard professor long known for his collective position finally admitted that the 2nd is actually an individual right. However, he suggest that route for those who want to restrict it's scope.

I bet Sean Taylor would have liked to have exercised his Second Amendment right.

Forgive me for shedding crocodile tears for innocent little Anthony Cohen. Here is a man who screams FLAMES! SMOKE! HEAT! and then complains at the ensuing stampede when people "misinterpret" him to mean fire.

A writer has an obligation to be clear. Anthony is a man who has beat a consistent liberal drumbeat and shown a blatant partisanship in continuing to yap like a small dog after former Attorney General Gonzales. So it would be natural in the muddled original posting to assume that he was taking a stance in favor the appellants in this case. I notice in all his yipping and yapping in this posting he has not issued a denial so I think it safe to assume that is where he stands.

This would not be an issue if the Little Tony did not favor a broad interpretive approach to the Constitution. Such is the strange world of the Bill of Rights today what is not there is enforced (symbolic speech and a "right to privacy") but what is clearly written is called into question.

A strict construction of the Constitution, one that I tend to lean toward, would recognize the Second Amendment for what it is, one that establishes a personal right to posses and bare arms. A right that cannot be abridged by the FEDERAL government. However one that is still open to regulation by STATE governments, because the 2nd Amendment is not incorporated into the 14th Amendment.

That is not a position I personally favor. I also happen to disagree that is it OK to burn the American flag while not OK to display of the Confederate flag -- some people would argue that is a "hate crime."

Constitutionalist:

Just in case you haven't been back to the Barry Bonds thread, I was wrong. I have no problem with admitting I am wrong, or changing my mind in the face of convincing evidence.

As one who tends toward "strict construction," how do you deal with the well-regulated militia? Those words have to mean something, but so far I haven't seen any cogent argument from the fire-breathing, out of my cold dead hands types to account for them. Is is possible that the Second Amendment no longer has any meaning given that we now have a standing military to repel invasion, and extensive police forces to serve and protect?

And I'm not trying to call you out -- I just want to understand how you would deal with them.

Good question Nellie. I have been thinking about that, but I am not comfortable guessing so I am going to check my Kirland and Federalist and repost later. Based on the grammar of the Amendment, however, I would concur with those who say that it simply explains the reason behind the amendment, but reasons must color the interpretation as well. For example it doesn't say "The ability to exact revenge being necessary for a just and fair society, the right of the people to keep and bare arms, shall not be abriged." Nor does it say, "The need to control deer and elephant populations from trampling and eating vegetables and flowers being necessary for a well ordered garden, the right of the people to keep, etc." Which would justify all of those hunters out there.

P.S. I haven't been back to the Bonds thread, but the only reason I called you out on that was because I thought it was out of character for you. (In fact, I respect you so much I went back to the older Bonds threads to see if I hadn't said something to provoke that...)

As one of my undergraduate professors used to say (I was a religion major): "When you can't find the answer, love the question."

I have a feeling that no matter the holding, the question will remain.

We could all use a little less acrimony on this issue. I just think it is an outright joke to see the presidential candidates act like they've been hunting all their lives, when the reality is that they probably took a few quick lessons with a 12-gauge the day before a skeet-shooting photo-op in a vain effort not to embarass themselves when they shouted "PULL."

Although I grew up in the Mountain West, I've never been hunting, and have no desire to do so. While I think there are certain kinds of restrictions that would not violate even a broad reading of the Second Amendment (e.g. ban on ammo clips in excess of 10 rounds), I tend more toward the the libertarian view with a healthy dose of pragmatism (if that's not an oxy-moron). That said, however, I think the guy my parents talked to last year while on a Jon Tester phone bank who said he would vote for Conrad Burns (Burns took more money from Jack Abramoff than anyone) over Tester because Tester had only a 98% favorable rating from the NRA as opposed to Burns' 100%, has a few screws loose.

"...Shall not be infringed". It does not say, for instance, "...by the federal government", or "...except by the states". The 2nd Amendment makes no exceptions for people who, in somebody's opinion, might be a little nutty or hold unpopular views. It says, "The right to keep and bear arms, Shall not be infringed." There is a period (.) after the word, "infringed", which indicates the end of the sentence.

"Gun Control" of any sort is a form of infringement. Requiring one to register or license firearms or obtain a permit to carry (bear) a concealed weapon is a form of infringement. In short, any legal restriction upon the possession of a firearm, regardless of its caliber or how many rounds per second it can fire, is an infringement, and is therefore prohibited by the Second Amendment to The United States Constitution. There is really nothing here to debate.

wdlockaby:

You said:
"...Shall not be infringed". It does not say, for instance, "...by the federal government", or "...except by the states".

This is incorrect. By definition, the U.S. Constitution applies only to the Federal government. None of the rights ennumerated in the Bill of Rights originally prohibited State governments from violating any of those rights. Not until the 14th Amendment Due Process Clause (which does apply to the States) were any of the individual rights in the Bill of Rights applied to the States through the Incorporation Doctrine. In other words, the Bill of Rights applies to the States only if the U.S. Supreme Court has held that it does.

So far, the Supreme Court has not held in any decision that the Second Amendment applies to the States through the 14th Amendment. Until it does so, State Legislatures are free to restrict gun possession and ownership to any extent consistent with that State's constitution. Would such a law be challenged? Absolutely, but at the present time it is not unconstitutional.

And one more thing.

Your insistence that the word "shall" means that no form of restriction is consistent with the Consitution is also incorrect.

The First Amendment states that "Congress shall make no law...abridging the freedom of speech...," yet there are literally hundreds of decisions on the First Amendment holding that the government can, in fact, abridge the freedom of speech in certain circumstances. The Second Amendment has no special immunity that the First Amendment does not. Therefore the only logical conclusion that can be drawn is that there are circumstances under which restrictions on gun possession and ownership are permissible under the U.S. Constitution. To argue otherwise flies in the face of over 100 years of jurisprudence and well-settled law.

I think the wording of the Second Amendment reflects the founder's belief that the people were themselves, in their own right, entitled to a well regulated militia - and hence to the ownership of all manner of arms personally. This is a thing specifically apart from the people's government having a professional army. The armed forces are mentioned elsewhere in the Constitution.

The Second Amendment was a recognition that the government would be sounder if it were bound to serve an armed public, a public willing to fight for its rights. The founders viewed the armed populace and the threat of insurrection as the ultimate check and balance on governmental power.

These same folks believed that jurys should have absolute control over the application of the law in the cases before them, in the manner of a sovereign. Try to find *that* in a judge's instructions these days.

Of course, all this was before Television was invented. If the founders could actually meet any modern Americans, I think they would first throw up their hands in despair, and then urge us to tear up their effort and do something more appropriate to the contemporary populace. They never intended the Constitution to be an ikon, or a focus of Historical speculation. It was supposed to be a living document, modified as necessary to meet changing times.

Theres also the issue of drug laws that comes into play, such as if illegal drugs are privatized or made legal, hustlers wouldnt need guns to protect their money. Then theres also in issue that i need clarity one, dosent dc prohibit its citizens from owning guns, or is it just some guns, or is it really hard for dc citizens to get guns, which pushes in the black market which then makes it easy for criminals, (the ones you see killing, what a 170 people this year so far) actually happen. Well somehow i think my point that some laws actually cause killings will help you understand what im saying. Andrew your right that sometimes I actually dont read the post because I belive thier is a "subtle" agenda going on, but at least for the people like me who are paranoid give(True i am paranoid, but not that much) me that benefit of the doubt to know what that agneda is in your own words, thanks

"Therefore the only logical conclusion that can be drawn is that there are circumstances under which restrictions on gun possession and ownership are permissible under the U.S. Constitution."

That's true as far as it goes, e.g. the mentally incompetent may be barred from bearing arms. However to say that one such circumstance is merely to be a resident of such and such a place is, I think, categorically an abridgement, not a restriction.

fzdybel Your argument about the application of militia to the "peoples" army only goes so far. The question is what is that force?

I believe that if you look at the structure of collective defense during the revolutionary period and you extend that to the general fear of central authority, it would be that the State militia is the anticipated force. That is, the States were expected to maintain their own militia, economically in the frontier environment, as they had during the colonial period. Through the Civil War the States augmented and provisioned the American Army. During the Civil War units were assembled by the States and named after their State, a form of segregation different from the later racial divisions of the 20th century.

Given this it is possible -- and here I am guessing, I have not found supporting or contradicting evidence, but then I have not looked real hard in either direction -- it is possible that the militia is a State right, a bulwark against the Federal government. That would justify an interpretation that would allow states, but not the Federal government to control arms. (Nice how my guess fits neatly with my belief in a federal but not state protection against regulation of arms.)

One position I cannot accept is that written elements of the Constitution can be nullified by social change, without a correcting amendment. Supreme Court interpretations or applications (or to me creation) of "rights) can be overruled by later Court decisions, but the quadrennial election of the President cannot be moved to five years, nor can the votes of the Electoral Collage be ignored in favor of popular votes because it does not make sense any more.

Andrew's CBS column, which anticipates a split the baby approach driven by Justice Kennedy, may come true. The reason is that the Supreme Court in its balancing role attempts to accumulate as much power as it can . If it does, then we can expect a huge number of regulatory cases as the Supreme Court assumes its favorite role of balancing state and individual rights in gun cases, creating less rather than more clarity.

Rhode Island's 1842 constitution, its first, provides "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.".

"The liberty of the press being essential to the security of freedom in a state," is a nominative absolute for those of you who do not know your grammar. The term 'absolute' is used because the entire expression is an independent construction. It forms part of the sentence, but it is not connected to the rest of the sentence grammatically. "Liberty" is in the nominative case and 'being essential' is the perfect participle. Remember, it is used 'absolutely' or independently and, in this case, relates a (but not the only) reason for the main clause. It could have been restructured as an 'although' or 'because' construct as in 'Although the liberty of the press is essential...' or 'Because the liberty of the press is essential...'. Which meaning was intended? Because it is in the form of a nominative absolute, BOTH MEANINGS APPLY.

The same nominative absolute construction that is used here is used in the Second Amendment. Is this (in Rhode Island's 1842 constitution) the kind of statement that reserves "The liberty of the press" to the State? Are the people allowed to publish only when they are members of a state press organization? I think I know... Do you?

Sometimes the older generations make the most sense. Judge Thomas M. Cooley explained the meaning of the Second Amendment in his seminal work originally published in 1880.

"It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."

JUDGE THOMAS M. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA

The Second Amendment declares that a well regulated militia is necessary. Government may neglect their duty to provide for a well regulated militia but no government can declare the militia is not necessary as a pretense for abrogating the right to keep and bear arms.

I cannot imagine that the majority of posters on this topic have ever bothered to read a history book. Had they done so, perhaps they would undestand the actual issue here:

People cannot rely upon the Police or any other law enforcement entity to "protect" them...there are actually *no* obligations placed on these agencies to intervene on behalf of individual citizens when they are threatened by home invasion, robbery, jacking, or any other citizen-on-citizen aggression. Look it up, toiletheads....

The Police, and all other such groups exist to protect and preserve THE SYSTEM...not the "folks."

The information related to the benefit or detriment of "guns" is readily available, but the great majority of liberal whiners ignore this body of data, it is not helpful to their hysteria.

Simply put: I am a Veteran, a successful businessman, a licensed and legal "gun" owner, and in my home there are no impediments whatsoever (locked cabinets, ammunition separate from weapons, ad nauseum) to our weapons. My wife, children, and I are well trained and schooled in the recognition, danger, proper safety, and use of each and every weapon belonging to us. Each weapon may be simply picked up, aimed and fired in one step...most are chambered, cocked and ready to be used.

There exists in our family an ultimate respect for and understanding of weapons and the responsibility that comes with possesing them, and the fact that (Senator Spector's Single Bullet Theory nonwithstanding) bullets, once fired, cannot be recalled or turned around.

Therefore any person who decides that our home is the one they should attempt to spoil will be (and has been) met with deadly force. We felt very bad about this event, and sympathized with the mother who cried at the son's funeral, (boo hoo, such a good boy...with a string of burglary and assault charges) but at the end of the day, it was him in the ground and not my wife or one of my children. Tough. Just too damn bad...

I will feel terrible about this for the rest of my life, but decidedly not so terrible as I would have felt had we been unarmed and unable to cancel the advantage that that boy's semi-auto pistol gave him, perhaps at the cost of the life of one or more of my family.

Wake up, people...these things happen in the real world, and when law-abiding people have the means to defend themselves, outcomes are much more just that they would be if the gun sissys and whining liberal nancyboys and girls had their way.

I cannot imagine that the majority of posters on this topic have ever bothered to read a history book. Had they done so, perhaps they would undestand the actual issue here:

People cannot rely upon the Police or any other law enforcement entity to "protect" them...there are actually *no* obligations placed on these agencies to intervene on behalf of individual citizens when they are threatened by home invasion, robbery, jacking, or any other citizen-on-citizen aggression. Look it up, toiletheads....

The Police, and all other such groups exist to protect and preserve THE SYSTEM...not the "folks."

The information related to the benefit or detriment of "guns" is readily available, but the great majority of liberal whiners ignore this body of data, it is not helpful to their hysteria.

Simply put: I am a Veteran, a successful businessman, a licensed and legal "gun" owner, and in my home there are no impediments whatsoever (locked cabinets, ammunition separate from weapons, ad nauseum) to our weapons. My wife, children, and I are well trained and schooled in the recognition, danger, proper safety, and use of each and every weapon belonging to us. Each weapon may be simply picked up, aimed and fired in one step...most are chambered, cocked and ready to be used.

There exists in our family an ultimate respect for and understanding of weapons and the responsibility that comes with possesing them, and the fact that (Senator Spector's Single Bullet Theory nonwithstanding) bullets, once fired, cannot be recalled or turned around.

Therefore any person who decides that our home is the one they should attempt to spoil will be (and has been) met with deadly force. We felt very bad about this event, and sympathized with the mother who cried at the son's funeral, (boo hoo, such a good boy...with a string of burglary and assault charges) but at the end of the day, it was him in the ground and not my wife or one of my children. Tough. Just too damn bad...

I will feel terrible about this for the rest of my life, but decidedly not so terrible as I would have felt had we been unarmed and unable to cancel the advantage that that boy's semi-auto pistol gave him, perhaps at the cost of the life of one or more of my family.

Wake up, people...these things happen in the real world, and when law-abiding people have the means to defend themselves, outcomes are much more just that they would be if the gun sissys and whining liberal nancyboys and girls had their way.

A child drowns in your pool = BAN POOLS!
An elderly person hits the accelerator instead of the brake = BAN CARS!
A terrorist fly's planes into buildings killing thousands = BAN PLANES! and Tall Buildings.

Nanny logic makes for a world without the rights guaranteed by our founders.
People will do evil things with everyday items you can't ban them all just because you think it will mean less carnage.
If bad guys suddenly started use hammers what would you build your house with.
Good intentions often lead to the wrong conclusions.
Guns allow a person some degree of self protection when the police are unavailable (4hr response in my town) or when the government is out of control and needs adjustment (Panama 1980's) some of our founders and early presidents understood this all too well.
For those who argue that there is no place for a threat of violent revolution to effect governments in our modern age, I say look to Russia, and Panama, and any number of the recently Democratized countries that won their rights/freedom at the end of a gun and not with a picket sign or voting card.
I am not professing a revolution or violence, but the thought of armed citizens would make any wannabe despot take a moments pause.
Repeal the 2nd, and see how long it is before term limits are removed or extended.

The second amendment is quite clear, "shall not infringe". If you have any trouble understanding that I'd recommend some elementary school english courses. "infringe" is a very high bar, even higher than the first amendment "Congress shall make no law respecting". To those of you dishonest enough to pretend it only applies to "the militia" in the form of the national guard (which was formed ~200 years after the fact) I'll point out http://law.justia.com/virginia/codes/toc4400000/44-1.html , a bit of the Virginia code. I'd enjoy watching someone try and argue that any federal gun control is legal after that. Please, come up with a semi-sane rationalization, I'd love to hear it.

BTW, before throwing millions of dollars at gun control you might want to consider the CDC's multi-million dollar report on the subject, http://www.cdc.gov/mmwR/preview/mmwrhtml/rr5214a2.htm , which found no evidence to support the claims the gun control has any positive effect on crime, murder, or much of anything else. Consider that in light of the fact that the CDC's official position is "Privates guns are a public health crisis" (the minor detail that their official position is clearly false, as they themselves have proven is unimportant to those in favor of gun control).
Nick

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