THE BOOK--Playing The Percentages In Baseball

Apparently four supreme court justices “seriously believe” that it only applies to a militia, so I don’t see how you think that this is somehow a ridiculous position.

I agree with you 100%. Its also interesting that anti-gun advocates talk about how it increases violent crime and murder.

Here in the UK, where guns are illegal, the youths of the country have taken to carrying knives. There have already been 37 stabbing deaths in London alone this year. That might not sound like a lot compared to American cities, but proportionally to what it normally is, this is a huge increase. This is an issue that’s in danger of bringing down the government.

I’m not going to say that everyone carrying guns would prevent that. Its just another way of doing the same thing. But people will kill each other and commit violent crimes regardless of their access to guns. And you can get a gun here in the UK, even though its illegal.

If the anti-gun lobby would come up with a legitmate reason for wanting to get rid of them, it would be more successful. But the reasons they use just don’t make sense and the numbers don’t back it up.

Possibly there are four ridiculous Supreme Court Justices.

I believe it was Kennedy, in the dieesnt on this case, who said “The majority would have us believe that the framers wanted to deny the government a means or regulatins the people, and they ahve not proved their case” - well, excuse me, isn’t the enitre Bill of Rights the framers denying the government tools to regulate the people? That’s exactly what the farmers were afraid of. They wanted to make sure that it was the people regulating the government, not the other way around.

“A well regulated militia” should be translated as “citizens possessing and well trained in the use of arms”. I watched “The Patriot” again the other day. In a practice that continued through the Civil War, when it became necessary to take up arms, trained military officers went into the towns and held recruitment drives for those men who already possessed arms and knew how to use them.

Maybe we don’t seem to need that today, but putting a “Gun Free Zone” sign on a school or university only serves to tell the crazies that no one inside is going to shoot back.

On second thought, what if someday the President of the US decalred that he was elected with a mandate, and that Congress was obstructing the will of the people. Therefor, he was abolishing Congress and would rule by decree. It happened in Venezuela in 1999, and there were thousands in the streets cheering the decision. If it happened here, should those of us, right or left, who cherish the Constitution over any policy or politican, sit at home and let this happen?

My father owns lots of guns, I hunted with him until I got married and moved out. My son is in the Army, and left me his handgun when he shipped out to Korea. Otherwise, I haven’t owned any guns sinced I married 24 years ago. Didn’t feel the need. But, I strongly believe in the Constitution right to own them. The government has the burden of proof to show a compelling interest (mental illness, criminal background, etc) in why someone should be denied their right, any right. The District of Columbia didn’t do that, they just had a blanket ban, and that was unconstitutional.

Ron, I don’t get your point.  37 thus far sounds fantastic to me… I’d bet we’ve had more than that so far in Boston (homicides that is)… there’s usually 60 or 70 per year I think, and Boston is a much smaller city.

What do you mean “proportionally to what it normally is”?

Brian, I don’t think the “crazies” care whether someone is going to shoot back or not.  The guy from VT, the guys from Columbine, etc, all end up killing themselves anyways.  I’m pretty sure by the time you’ve decided you’re going to kill as many people as you can and then kill yourself, you’re not too worried about where the bullet comes from.

MGL, gotta say I disagree.  If the clause emphasizes the reason for the rule, and that reason no longer exists, I’d say the rule no longer exists either.

No one’s arguing that there aren’t proper avenues to change law within our system.  People are disagreeing on the starting point.

I agree that the “well-regulated militia” clause is intended as context.  I think it doesn’t matter what that clause says; the “right to bear arms” clause trumps it.

Suppose the 2nd amendment said, “Wins being the best measure of a pitcher’s ability, the right of the people to keep and bear Arms, shall not be infringed.” You still couldn’t invalidate the second clause on account that the first clause is false. 

A large number of laws on the books are based on invalid premises.  No court would invalidate rent control laws on the grounds that they do the opposite of what was intended.  And no court should invalidate the second amendment on the grounds that the purported reason for it doesn’t always apply.

I meant proportional to an American city. No one in DC, or New York, or LA would think 37 murders at this point is unusual. But for London it is, and that’s because of the knife issue. If they had guns, it might be higher. 37 dead in London is the same as 370 in DC.

But that’s not meant to be anti-gun. I actually pro-gun.

If you took away all the guns in the US, people would still find ways to kill each other. The numbers might be lower, but the problem still exists. Just like they’re find out in the UK.

Taking guns away from people doesn’t stop the root of the problem. Elimnating poverty and the drug culture that amplifies violence will do more to reduce murders than whether or not people can own guns.

You have to cure the desease, not a sympton.

I have no idea whether the existence or legality of certain weapons makes us more safe or more in danger. It is a legitimate debate.  However, even if a complete ban on guns definitely made us much safer, it wouldn’t matter.  That is the entire point of the Constitution, and in particular the Bill of Rights.  To make sure that certain rights are intractable, regardless of whether the retention of those rights or some subset of them are deemed “correct” or not at any point in time.

Again, I say that if the people of the U.S. (and not the “government") feel that the need for people to be armed in order to insure that they are able to take action against or defend themselves from a tyrannical government, or for any other reason, is no longer applicable or necessary, they are welcome to repeal or change the Amendment.  Until then, whether you are pro or anti gun, and whether you are correct or not in your stance, should be irrelevant.

Apparently four supreme court justices “seriously believe” that it only applies to a militia, so I don’t see how you think that this is somehow a ridiculous position.

You are kidding right?

I guess I can’t say that Dredd Scott (blacks were not citizens) was a ridiculous ruling?  Or Korematsu (6 Justices held that interning Japanese Americans in concentration camps was legal)?  Etc.
Both of those rulings, as well as several others, BTW, have been explicitly repudiated, and apologized for.

In the majority opinion in “Heller”, Justice Scalia said something to the effect that the minority’s interpretation of the 2nd Amendment was gross and distorted.  If one Justice can say something like that about another Justice’s opinion, and they do that all the time, then certainly it is legitimate for me to do the same thing!

My absolute favorite quote from a Supreme Court Justice, and I have many, is from Justice Hugo Black, with respect to the First Amendment.  “No law means no law.” He was being somewhat hyperbolic as he was not necessarily an absolutist when it came to the 1st Amendment or the rest of the Bill of Rights, however, I believe that to be the default position.

Mike #4,

UK has a much lower murder rate than the US, but their murder rate has increased (I think 20-30%) since they banned the guns.

That’s the point I was trying to make, and didn’t nearly as well. Thanks.

To clarify my remarks on “Gun Free Zones” - I did not mean to say that the “crazies” who in the end commit suicide would be deterred from acting, but I do believe that most would still follow the path of least resistance. If the guy still goes to Virginia Tech, what is the better scenario - that he continue killing until he runs out of bullets, or that someone else stop him as soon as possible after it starts. Sometimes calling 911 and waiting for the police to arrive is not a viable alternative. You or others might be dead by then.

Rally/Ron: what’s the theory behind the increase?  It doesn’t mesh with what I’d think would happen, which would be a decrease in killing.

I think there’s some debate as to whether that first clause is background info, or justification.  The fact that 1700’s grammar is vastly different from our current day grammar is also kind of bothersome to interpretation.

I’m not really sure about the why the increase. I haven’t been here long enough. I know knife violence has been a problem for awhile. About 5 years ago, I helped break up a fight in Edinbourough. The police said I shouldn’t do that in the future, as all the kids carry knives and like to use them.

It might be a case of “now we’ll worry about it and start reporting it”. Maybe its been that bad for a long time and it just wasn’t an issue until know, and people didn’t pay as much attention. But there were some high profile stabbings, to include the brother of an actress on a soap opera and 3 unrelated murders in one night.

Honestly, I think unbiased research on the history of the 2nd Amendment most typically yields the opposite conclusion - that it was meant only for militias.  There are more sources to draw upon than simply the text of the Constitution, and I think it’s telling that, up until now, the “militia” reading was essentially the universal judicial stance - certainly these judges have done more background research on the topic than we have.  Note the lack of explicit mention of “separation of church and state” in the Bill of Rights; yet, the courts have been able to infer an intended “wall of separation” from Jefferson’s writings and speeches.  Obviously there have been bad SC decisions in the past, especially relating to racial matters, but I really don’t think this parallels those situations. 

Actual gun control laws and gun bans may or may not be effective, but I think the Constitutional evidence against them is certainly a debatable matter.

I’m right with MGL, except that I do not abhor guns. But the point here is that we are talking about law and specifically the Constitution here. What is practical and best for the country does not apply at all; that’s what’s so onerous about the military commissions act and the new FISA bill. Maybe Bush is right and the law will keep us safer if enacted, but it does not matter in the least.

What is practical and best for the country does not apply at all.

That is the key!  Many people, including our own President and members of his administration and Congress, etc., etc., do not understand this simple concept.

People, will support and uphold Constitutional principles even when they oppose what they “like.” But, when they REALLY don’t like something, then it’s screw the Constitution.  Sorry, but that ain’t the way it works.  The true test of your “Constitutional mettle” is when you use it to support that which you abhor.

“Yes, but we are much safer” (FISA for example) does not cut it.  Whether we are or are not is debatable, but that does not matter.  We are indeed a country of laws and not of men or even of principles, and the Constitution is the law of the land.  Period.

Alex, I don’t disagree that the interpretation of the 2nd Amendment is somewhat debatable.  However, I believe that there has to be strong and convincing evidence to negate a fundamental right.  As I said, the default position should be that every citizen has a right to keep and bear arms (own guns).  If it is clear that that is not what the framers meant, then so be it.  I don’t think that any rational and learned person would argue that it is clear.  If it is not clear one way or another, then we are stuck with the somewhat plain meaning.  If we don’t like that default interpretation, we are free to change it.

I’ve read about and studied a little bit of the history of the Amendment, and I don’t think it was clear what they meant.  I do think that at the time, it would be anathema to the framers and to just about anyone for there to be a prohibition against ordinary citizens owning guns.

And of course, even if you believe in the plain meaning of the Amendment, sans the first clause, that does not mean that the government cannot restrict and regulate gun ownership, just as speech that incites violence is not allowed even if you believe in the concept of “no law means no law” with respect to the 1st Amendment.

well, guys, re. that the “reason doesn’t exist anymore” claim-- who says the reason doesn’t exist?  if we want, say, to oppose post 9/11 governmental tyranny at home, we’ll need garages full of tanks, barns of tactical nukes, to actually get anywhere against today’s federal government.

what seems dishonest to me is people who are pro-gun rights but unwilling to extend the claim to make all existing ordinance freely available to those citizens who can pay market rates. 

if the amendement no longer protects us from federal tyranny, but simply allows those who so desire to brandish their big metal phalluses around, then, in my view, it’s become a fetish.

in other words:  once you get into deciding what arms means (no biological weapons for regular guys like me!?), you’re already doing what mgl says you can’t do:  you’re interpreting.

Brian/3: Minor nitpick; Kennedy was in the majority.

I did say “I think it was” because I wasn’t 100% sure of the name but I do believe I got the quote correct. I really can name all 9

Rick/10 - If the constitution guarantees an individual right, the government can put restrictions, but it has to show a compelling interest why, in certain situations, and to certain people.

And, if all of the other 10 of the “Bill of Rights” guarantee individual rights, why not the second?

I agree with MGL(!) that it is not the purpose of the court to determine what is right or wrong. Too many politicians don’t understand this. The elected officials wrote the constitution (the basic law) and they also wrote the various pieces of legislation. They have had the power to craft both as they wish. The court should only be deciding if the legislation conflicts with the constitution.

Well, if people interpret the 2nd amendment as applying only to the militia, private gun ownership should be decided at the state level per the 10th amendment.

Jared, that’s completely wrong. Reread what the 10th says. If you were correct, states could regulate speech, the press, religion, etc.

MGL, you are correct. Anyone who reads the Federalist Papers will know what “A well regulated militia” means. Alex, you are mistaken.

“Well regulated,” in strict terms, and in the language of the day, means meeting regularly. It does not mean the militia “follows the rules really well” or anything similar. It basically means ‘a standing army,’ something the founders were very scared of. Note that Article I specifies that Congress shall maintain a navy, but only “raise” an army. Standing armies were considered to be a great threat to domestic liberty.

By the time of the Bill of Rights, the Framers had reluctantly realized that a standing army was “necessary to the security of a free state.” To counter-balance the threat to liberty, they wrote the 2nd Amendment.

The dissenting Supreme Court opinion is frightening to me, and should be to anyone who cares about the Constitution. It said the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” Imagine replacing “uses of weapons” with “free speech” or “free exercise of religion.” Scary.

But, yes. That’s exactly what the Framers intended.

The “framers” seems to be a stand-in for “god” when the constitution is discussed. 

***

Question: suppose that the people want the constitution+amendments thrown away and replaced with a brand-new constitution. 

a) Would the resulting mess lead to chaos and riots, as the two-Americas would finally be exposed to how much animosity they hold for one another?  Would the President turn into King and impose martial law for what will end up for years?  Is America hanging on a thread here, and that thread is the current constitution, a powerful document that has, so far, tested time, but, in this scenario, be the last straw?

b) Or, are the people so united as to know what USA means that a brand-new constitution, with the original in hand, and over 200 years of experience and documentation in hand, that they would be able to create a document so powerful that it could last several hundred years without much alteration?

Definition of militia:

http://www.law.cornell.edu/uscode/search/display.html?terms=militia&url=/uscode/html/uscode10/usc_sec_10_00000311----000-.html

“(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. “

So I don’t really think that saying “the Framers wanted an armed militia” and “the Framers wanted everyone to have guns” are as close to being in opposition as you think, Alex.

The Constitution was written by the statesmen of a largely agrarian society that had just finished defeating the British army in a guerrilla war using largely volunteer soldiers who brought their guns from home. I think that’s the status quo the Framers were trying to preserve.

I have no idea whether the existence or legality of certain weapons makes us more safe or more in danger. It is a legitimate debate.  However, even if a complete ban on guns definitely made us much safer, it wouldn’t matter.  That is the entire point of the Constitution, and in particular the Bill of Rights.  To make sure that certain rights are intractable, regardless of whether the retention of those rights or some subset of them are deemed “correct” or not at any point in time.

This may apply in the broad sense, but I can certainly see how an individual city might want to limit the ownership of guns.

There are plenty of places you can’t keep or bring guns, residence or not, workplace or not, for public safety concerns. For example, you can’t bring your gun into school, there are colleges that ban possession on campus, and there are plenty of other places and jobs where guns are disallowed.

If we’re in agreement that the government can restrict usage or possession of guns under certain circumstances for public safety, why can’t a city (or city’s legislature) vote to restrict gun possession within city limits as a matter of public safety?

MGL/7 - I would add Plessy v. Ferguson “seperate but equal” to the litany of poor SCOTUS decisions.

Nick/16 - there is no right to shout fire in a crowded theater.  No right is absolute, they are ALL subject to time/place/manner restrictions.  There is a difference between subjecting a right to the same restrictions to which other rights are subject, and to adopting a strained textual interpretation that warps the nature of the underlying right in the first place.

Brian/20 - you’re way off.  In early US History the feds had no power to regulate what the states could and could not do - they literally could regulate speech, the press, etc.  Reread the 1st amendment, “Congress shall make no law...” It wasn’t until the passage of the 14th amendment after the Civil War that the Bill of Rights could be interpreted as applying to the states.  States cannot presently restrict constitutional freedoms because of the 14th Amendment, not through any failure of the 10th.

Yes, of course until the “incorporation clause” of the 14th Amendment, it was generally considered that the Bill of Rights only applied to the Federal government.  In fact, it was not until relatively recently that courts recognized the “incorporation clause.”

However, it always seemed strange to me that the Bill of Rights would not necessarily apply to the states (state laws).  Surely the framers meant those rights to be absolute and did not intend for it to be OK for state law to ban speech, religious practice, knock down doors sans warrants, etc.  In this day and age, and even 100 years ago, there is no effective difference between state and federal law as far as what we, as state and federal citizens can and can’t do.  If you were arrested for possession of a certain drug, for example, it would not really matter if it were a federal or state charge (other than the procedural differences, sentencing, etc.).

Likewise, if your state enacted a statute making it illegal for you to hold a peaceful rally protesting something about your government, or illegal to print anything seditious, but the federal government could not do the same thing, you would not be too happy.  Again, I can’t believe that the framers meant that the Federal government could not do what is proscribed in the Bill of Rights, but the States were free to do so if they wish.  That would simply make so sense.

So I never understood this whole concept of having to use the 14th Amendment to “incorporate” the Bill of Rights into a state context.  In fact, 99% of the time, when a law is Constitutionally challenged, it is a state or local law/ordinance.  Can you imagine if courts had never recognized the “incorporation” concept?

Tango, there is nothing special about the “framers” other than we sometimes need to know what they intended in order to interpret parts of the Constitution which are not self-evident.

It is extremely difficult to change the Constitution (almost as difficult as changing or adding a rule in MLB), and that is the the only reason why we don’t have a competing document, which, IMO, would probably be a piece of crap given the way people and politicians think today.

If we’re in agreement that the government can restrict usage or possession of guns under certain circumstances for public safety, why can’t a city (or city’s legislature) vote to restrict gun possession within city limits as a matter of public safety?

Yes, all of the rights guaranteed in the C are subject to time/place/manner restrictions, as Ben in 24 mentioned.  No argument there (from me) although that was a SC opinion too, and it is not by any means explicitly mentioned in the C.  Although you really can’t get around it no matter how much of an absolutist you consider yourself, such as yelling “fire in a crowded theatre” (which is a place and manner restriction on free speech).

Anyway, a local government CAN restrict gun possession in the name of public safety.  The “Heller” ruling held that it was Unconstitutional to ban handgun possession in the home for private use (hunting and self-defense).  That is NOT a restriction.  That is a complete ban.  It also upheld the overturning of the “unloaded and locked or disassembled” part of the DC law, because that effectively rendered a gun a “non-weapon”. If you believed in the right of the individual to possess arms yet you said that only if they were ground up into metal filings, that would make so sense of course.  An “arm” has to be a functional “arm” for that right to have any teeth or make any sense, and the SC simply ruled that a gun that was disassembled or locked was not functional from a “self-defense” perspective.  While that opinion may be somewhat debatable, it certainly makes sense to me.

So, again, restrictions are permissible (of course). The parts of the DC law that were struck down were not restrictions but outright bans.  There is nothing “lower” than, “You cannot own guns in DC territory, unless you are law enforcement or were grandfathered in.  Period.” That ain’t a “restriction.” At least from the perspective of “time/manner/place restrictions” jurisprudence.

Re: Ben (24).  Note the difference in wording between the 1st and 2nd Amendments. “Congress shall make no law” vs. “shall not be abridged.”

The 2nd Amendment applies to all levels of government, while the 1st Amendment (originally) only restricted Congress. If we say the Framers were sloppy or “didn’t really mean that,” then we’re on a very slippery slope.

The 4 minority justices are sliding quickly down that slope. Imagine a different Court deciding that, ‘well, the Framers couldn’t possibly have intended to restrict Congress’s ability to regulate the press during times of grave terrorist threats...’

Ben, even if you’re right, it was only true as of 1787. Today, if a state passed law restricting free speech, all American courts would interpret the Bill of Rights as controlling law. The Federal 1st Amendment would prevail.

The Framers saw rights as coming from God, not legal privileges that came and went as one traveled between jurisdictions.

To be clear, the 10th Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,...” I think that’s pretty clear. The limit on government power in the 2nd Amendment’s language is not limited to only the Feds.

Interesting post. Lots of smart people with informed opinions around here.

I don’t know that the 10th Amendment has anything to do with whether the rest of the BOR applies to the states as well as the federal government.

As far as I remember from law school, the 10th Amendment is cited only to emphasize that the federal government has no power to regulate the people other than that explicitly articulated in the rest of the C. 

This is on a different topic, but the really sad part is that the power of the federal government is so much greater than the framers ever envisioned, that they are probably continuously rolling over in their respective graves.  Not even rolling, but clamoring to get out.

While the expanse of the federal government’s powers under the various sections that enumerate the power of the fed gov, like the Commerce Clause, has fluctuated greatly over the years, at least according to the various SC’s, the current general climate is one in which most people, sadly including lawmakers, politicians, and judges, forget that the fed gov has NO power to enact law other than that explicitly given to it by the C.

For example, Congress passed the Adam Walsh sex offender act in around 2006, dictating to the States what they (the fed gov) wanted in each state’s sex offender laws.  If states are not compliant by some time in 09 or 10 I think, they risk losing federal aid.

Recently, it finally occurred to someone in Florida, I think, that, “Wait a minute, the federal government has no power in this area.  This is strictly a state thing.  What the heck are they doing making laws regarding “state” crimes?”

They sued in federal district court and the court (of course) ruled that the federal statute was Unconstitutional.  The lawyers for the feds tried to argue some kind of commerce clause connection.  The federal judge rejected that, and correctly so, just like it rejected it in the U.S v Lopez (the gun-free school zone case), which is controlling law now of course.  The fed’s arguments in this case are not even close to being correct.

If you interpret the Commerce Clause broadly enough, of course, you can make a case for any area of law being fair game for the fed gov.  Clearly the framers did not intend for that to be the case, as they very clearly wanted to limit the power of the federal government as much as humanly possible.

I’ve never heard a good explanation as to why the framers did not feel a need to explicitly state that the Bill of Rights should apply to state governments as well as federal and/or why they chose to put in the words “Congress shall” in some of the Amendments, which implies that they do NOT apply to the states.

As I said, it just doesn’t make any sense to enumerate these very precious and fundamental rights (freedom of speech, religion, etc.) and NOT make them apply to the states.  No sense at all.  Do you think that the framers would have said, “Oh, by the way, if the states want to enact laws that abridge the freedom of the press, speech, religion, etc., that’s OK.  No problem with that. As long as the federal government doesn’t do that, it’s OK.”

Perhaps they just assumed that since the C was intended (and is of course) to be the “law of the land” that of course it applies to the states as well.  If that is the case, however, why specifically include the words “Congress shall..” in the 1st Amendment?

Or perhaps, in the spirit of Federalism, they did not feel that they should explicitly put any restrictions on the states (tell them what they can and cannot do), but that it went without saying that any fundamental right articulated in the fed C, and especially in the BOR, certainly applied to the states as well.

Or maybe they just figured that most of them were already in the State Constitutions (which they were, and then some), so it was not necessary to put in a reference to the states in the Federal C.  Remember that most of the BOR was taken from various state constitutions anyway, and that later on, most, if not all, of the states put some version of the BOR into their C’s.

I don’t know.

Brian/#20. I’m not saying the BoR doesn’t apply to the states, I’m saying if the 2nd amendment is interpreted as only talking about the militia, then the issue of private gun ownership would be left to the states.

Tango/21 - I don’t think the framers were “God” - we have seen where they have made mistakes or oversights, and that’s why an evolutionary amendment process was set in place.

The states existed before there was a federal government. Then the various representatives of those states convened to create a central federal government, but stressing federal, where the states would still maintain true decision making power, and not merely be implenters of policy set forth from the new national government.

Therefor, in the beginning, the constitution was the rule book of what the new federal government was and was not allowed to do. It was not intended to control the states.

After the Civil War, it was obvious that it did little good for the rights of the population to say that the federal government couldn’t take away your rights, but the states could. The 14th thru 16th amendments stated that the citizens of the states were also citizens of the United States, and thus had federal civil rights that the states could not violate. This established the constitution, at least the Bill of Rights, as not just a check on the power of the federal government, but of all lesser governments as well.

After the Civil War, it was obvious that it did little good for the rights of the population to say that the federal government couldn’t take away your rights, but the states could.

That is what I never understood.  Why was that not obvious at the time the C was constructed?

Was it just assumed that the states would never infringe on these rights (and that they were protected in the state C’s anyway)?

Was it that the framers were simply not charged with telling the states what to do (as you say, that was not the intent of the document in the first place - sort of like the MLB rules are not intended to apply to other levels of baseball even though most of them are)?

The more I read about the “incorporation doctrine,” the more I think that the framers had no intent for the BOR to apply to the states - they merely wanted to limit the power of the federal government.

I also think that the 14th Amendment was pretty much intended to make sure that states (southern ones obviously) did not abridge the rights of recently released slaves, and that was about it.  I don’t think that the “P&I” clause was meant to mean the rights enumerated in the BOR.

Over the years, the SC has gradually ruled that certain of the rights in the BOR (not all of them, but most) are meant to apply to the states through the P&I and the DP clauses in the 14th Amendment, but I think that this is a stretch.

I am glad (very glad) that most of the important rights in the BOR are now universally applied to the states (and local governments of course), but I am not sure that is what the framers wanted.  In fact, I am pretty sure that that is NOT what they intended.  I think that they wanted the states and/or the people (they considered the state governments and the people to be one and the same, I think) to be free to regulate and legislate just about anything they wanted, even if that meant abridging any of the fundamental rights enumerated in the BOR.  Even though they obviously felt that those rights were important, they did not feel that it was their province to tell the states what to do with respect to those rights. 

Remember that the C Convention and the drafting of the C in general was not so much about “government and rights” as it was about the powers of the newly formed federal government, which was what people were afraid of, and rightfully so (after years of tyranny by the British).

As I said, on the one hand, I am very glad that the Courts over the years have adopted the doctrine of incorporation.  Imagine if the state and local governments could do just about anything they wanted, and that the BOR did NOT apply to them.  That is not a country/state I would want to live in. (Note: most state C’s have something akin to the Federal BOR anyway, so that would not be possible.)

On the other hand, being a gigantic “fan” of the Constitution, it is a little troubling that the intent of the framers (the “Gods") has been bastardized (I think).  It is the old story, which is probably unavoidable, by both ordinary citizens and the judiciary (and other branches of government):  When something shocks my conscience (like the states being allowed to abridge my freedom of speech, press, religion, etc.), I will find something in the C to ease that pain, whether it is in the document or not.

I think that is what ended up happening with respect to the incorporation doctrine.  Even thought the framers probably did NOT mean to apply the BOR to the state governments, such a notion so shocks the conscience of our judiciary (and understandable so), that they were going to find a way to get around it, no matter what.  As I said, I am glad that they did, but it is more than a little troubling.

I think the proper route would have been simply (not that it is simple to enact an Amendment - it isn’t, and shouldn’t be) to enact an Amendment which would have made incorporation explicit.

The original post finds it “ridiculous” to read the opening clause as substantively limiting the later clause, but it seems to me the later clause is itself limited in the same way as the opening clause.  The later clause says the right of “the people” (a collective term) to keep and bear arms is not to be abridged—the reference is not to individual persons or their individually owned property but only to the collective “the people”. It seems to me the most logical reading of that collective terminology is that the amendment protects the right of a collective community of the people that is maintaining a well-regulated militia to keep in a community battery the arms necessary to equip that well-regulated militia in the event of a need for collectively military action (note the right is to keep and bear arms, with the specific military connotation of those terms, not to personally own and use weapons).  I see not a word in this amendment, in any of its clauses, that suggests that what is created is an individual right to keep individually owned guns or other weapons on his or her person or in his or her house (when the drafters of the Bill of Rights meant to cover the individual persons or homes of the collective “people” it did so expressly—in the fourth amendment —but they did not do so in the second amendment).

It is precisely the British attempt to take the local militia’s collective battery at Concord that essentially began the Revolutionary War and it seems clear to me that that is what the Second Amendment, with its non-individualized reference to “the people”, is meant to protect against.

However, I would not characterize the opposite view as “ridiculous”, just insufficiently supportable. Merely because Antonin Scalia has a deeply unfortunate and chronic habit in his published opinions of not merely arguing against his opposing colleagues but belittling them doesn’t mean we should follow suit.  That Scalia lacks courtesy and respect for the institution of which he is a part doesn’t mean we should too.

I would also note that even Scalia acknowledges that the amendment should be read to be limited to weapons of a practical military use—a principle that he then finds impossible to plausibly apply to personal gun ownership as he seems to end up suggesting that a pistol has a practical military use today while a machine gun does not.  It seems to me that it is far more sensible to read the amendment just as it reads, a right of a collective “people” (not individual persons) in the context of a well-regulated militia.

"It seems to me that it is far more sensible to read the amendment just as it reads, a right of a collective “people” (not individual persons) in the context of a well-regulated militia”

Why is this one a collective right:
the right of the people to keep and bear arms,

When these are universally recognized as individual rights, even though they also say “the people”:
the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

Now beeing a non-american perhaps my viewpoint is somewhat naive but just by reading the second amendment my interpretation is as folows:

The state* is REQUIRED to keep a well regulated militia, and anyone who owns a gun (which everyone has a right to do) is REQUIRED to serve in it.

(*) I really can’t figure out if “the state” refers to the federal goverment or to the member states but the latter seems to make the most sense.

Brian: The right to assemble is by its nature collective—you can’t “assemble” by yourself in your house.  The right to petiton for redress of grievances is a clear reference to what the colonists had been doing in the run-up to the Revolution, sending collective complaints to the Parliament and King, which were met with accusations of rebellion and treason.  That this right is sometimes interpreted today as an individual right is merely a reflection of the fact that it overlaps with the (individual) freedom of speech right—if you have the right to speak your mind without fear of punishment, ipso facto you have the right to speak your mind to the government without fear of punishment. That does not contradict the fact that the reference to petitioning is a clear reference, like the assembly right, to public, not private, activity.  As to search and seizure, although the initial reference is to “the people” collectively, the express application in the language is to their individual persons, homes and property—an application conspicuously lacking in the language of the second amendment. 

My point is to rebut the original post’s claim that the only common sense reading of the language of the second amendment is as an individual right to possess, own and carry weapons for personal use.  I am simply pointing out that, to the contrary, the common sense reading of a right of “the people” (a collective concept) to keep and bear arms (a military concept) is in keeping with, not contrary to, the “why” of the initial clause—the right is to protect the ability of a well-regulated, collective militia ("the people”, in military mode) to keep a battery (and train with it) for potential use in battle, unmolested by a federal government acting like the British did when they went after the Concord battery.  That is what the second amendment actually says, from a plain English, common sense point of view.

I’m no legal scholar, but my interpretation of the issue here has been the same as birtelcom’s.  In fact, it makes great logical sense to me to connect the notion of a militia with a collective definition of “the people.” And my impression is that many legal scholars have said the same thing.

Bottom line, it seems to me there is enough ambiguity here to allow local governments to create their own laws re: gun control or not.  I guess that would put me in the Supreme Court minority.

I am not a legal scholar either, but I did spend 4 arduous (not really) years in law school, among them discussing and debating various Constitutional principles.

I have never heard that interpretation of the Second Amendment, and frankly, I am not buying it.

birtlecom, please feel free to link to or to reference any scholarly articles or papers that support that notion.

Well, I remember this piece from the New York Times, which focuses on the comma issue:

http://www.nytimes.com/2007/12/16/opinion/16freedman.html?_r=1&scp=1&sq=second%20amendment%20comma&st=cse&oref=slogin

As he notes, the original D.C. decision cites the second comma (the one after “state") as proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.

IOW, what birtelcom said.  The comma impacts whether you interpret “people” as a collective noun referring to the states in general or an individual noun.

Again, I have never heard any arguments in Constitutional jurisprudence that suggests that “the people” does NOT refer to the rights of each individual US citizen.  But I could be mistaken.

And I have no idea if there has been myself.  But, like birtelcom, I don’t find the notion “ridiculous.”