>The whole point is that the government Can Not take away guns, not that they "would not". Inalienable rights preceed government, they are not granted by it. In fact, the government is supposed to exist to safe guard them.
The National Firearms Act would like to have a word it is unconstitutional on it's face despite what the Supreme Court says. 'Shall not be infringed' hasn't been the law of the land since the 1930's.
Maybe we'll get lucky and this conservative supreme court will do one big thing right and declare all federal firearms regulations null and void thus ending this culture war and forcing the politicians to fix actual problems. However, that is highly unlikely.
Genuine legal interpretation question: Why does everyone quote "Shall not be infringed" but ignore "Well-regulated"?
If the goal is a "well regulated militia", and therefore gun rights "shall not be infringed", why do we interpret that as "everybody should have largely unfettered access to weapons" rather than "If part of a well-regulated armed force, access to weapons should be allowed during militia activities"? or something similar.
The US Supreme Court held "The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms."[1]
I'd argue that's a result of the historic usage that has persisted, partly because it's compatible, but only in context.
A steam regulator supplies steam from the boiler to the piston/traction, at the desired controlled rate.
It does it via a restrictive valve, but even that's a stretch for it to be considered primarily a retarding device, and not an enabling/ accelerating one.
We don't call a cars gas pedal a deccelerator or fuel-regulator, we call it the gas, or accelerator.
The consistent usage is as a definition of supply.
Is this really the case, that regulated was equivalent to supplied in that context? I don't think it matters in the slightest for the purpose of the second amendment because the militia has no bearing on the power of the government to infringe the right of citizens to keep and bear arms, no matter how well restricted or well supplied it is.
> We don't call a cars gas pedal a deccelerator or fuel-regulator,
The pedal is not the mechanism, that is the throttle (aka fuel / air regulating device, it regulates flow by throttling it). There's people who call the gas peddle the throttle too, although less common. I don't think any of this proves a point about the word regulated in the constitution though.
It's relevant because the 2nd amendment calls for the militia to be well-regulated, (not the arms themselves, or the people), and then goes further, specifically saying the right to bear arms shall not be infringed.
And it does so by declaring the well-regulated militia being necessary.
Reading it all consistently, it's consistent with "enabling" and "supplying". There are no other words that even suggest there being a limitation on any party except the federal government.
All other rights in the first 10 amendments are granting rights to the people or states, and restricting the federal government, with any exceptions explicitly stated and conditioned.
Reading "well-regulated" as an open ended grant of authority to the federal government is entirely inconsistent. Especially if that authority is contradicted in the second half of the statement.
Reading "well-regulated" to mean "supply" and "enable" resolves all these inconsistencies and internal contradiction.
If you can read it in a way that makes consistent sense, then that's the way it should be read.
I just don't think the nature of the militia (or even the militia itself really) is particularly important for the second amendment.
The second amendment clearly states that the government does not have the power to infringe on the rights of citizens to keep and bear arms, and that would be true no matter how you changed the militia clause.
"A rag tag posse of unarmed thugs being unhelpful to the functioning of a monarchy, the right of the people to keep and bear arms shall not be infringed."
This places the exact same prohibition on the government's power to infringe the right to bear arms.
>that would be true no matter how you changed the militia clause.
Right- but that's exactly the point, and why reading it differently is critical.
>A rag tag posse of unarmed thugs
First- the term "militia" also had different meaning back then, and legally, still does, in US law.
It means every "able bodied male". That's it. (It's either the first or very near the first thing codified in US statutes as military law.)
Today, what we call militia is actually organized or semi-organized militia (or even national guard), which is legally and conceptually different.
Think "minutemen" and not "gang".
So it makes even more sense that "regulated" doesn't mean 'control of gangs', but the supplying/enabling of responsible citizen minutemen, implying everyone has some responsibly of military readiness in a free-country.
In that context (and the original desire to not keep a standing army), "limiting" that individual readiness is in direct conflict with the stated intent/benefit.
Which is not to conflate it as the reason individuals have a right to bear arms, but that the right to bear arms is complementary to individual citizens having some level of duty-to-country, to be ready to defend it, if and when called upon to.
If anything, it implies citizens should be armed and that the government can and should enable it, as an enumerated function of government.
Which doesn't imply any authority to control or otherwise restrict an individuals right to bear arms, with the narrow exception of when fulfilling one's role as activated militia, and even then only because of the nature of being subject to chain-of-command.
The two relevant decisions changed no facts on the ground outside of D.C. and Illinois. Reversal won't change anything except maybe the facts on the ground in Illinois, and will further inflame the divisions in the country.
Although you should double check your assertions, some of the details of the decisions were not 5-4.
"I'm out of town this weekend, you can use my apartment" does not grant somebody unlimited permission to use your apartment. The supreme court is working backwards from their conclusion here.
"Guns are good for hunting. All citizens have the right to own and use guns." does not mean only hunters have permission to have guns, nor that people may guns for hunting.
> Why does everyone quote "Shall not be infringed" but ignore "Well-regulated"?
Because the former is pretty clear and unambiguous, and it is the part that actually describes the limitation of the power of the government.
You can quibble over the meaning of well regulated militia and whether or not it is necessary for the security of a free state then or now, but that is clearly separate from the prohibition on infringement of the right to keep and bear arms.
It does not state if a militia is necessary then people the right to bear arms. It does not state that people who are members of a militia have the right to keep and bear arms. It says all people have that right.
Here's something to think about -- Why do people think hunting or personal protection have anything to do with the second amendment?
EDIT: I'll give my answer to my own question, because it might be too ambiguous or obscure. It's actually not that I believe the second amendment has nothing to do with hunting or personal protection, actually the opposite. Those were such obvious things for people to use guns for that back then they did not even have to be listed. That obviousness is why those things still come up today in discussion about the second amendment despite being enumerated nowhere. It would have been utterly absurd when the document was written that people should not use their guns for hunting or self defense. Clearly statement about the militia in there had no intention of the restriction of the right to have and use guns.
I also believe the security of a free state begins (and more or less ends) with the security of the free man so I think guns are a very important tool for self sufficiency, but that's another story.
It's because there are well established ways to interpret "militia" and "the right of the people to keep and bear arms" that draw on institutions and approaches that had been in place for hundreds of years by the time the 2nd Amendment was written. We are not actually ignoring the "well-regulated" part. The amendment enables the militia, it doesn't define it. It is for other laws and institutions to actually sort out how militias work (the Militia Acts of the 1790s, groups like the https://www.missourimilitia.com and so on). You can't have a militia without private ownership of and relatively free and easy access to weapons.
Today, we use "militia" to mean any unofficial group of armed people, but the common law militia was and is (it is still part of the laws of the USA, see 10 USC § 246) something more specific. The idea is that every potential lawful combatant -- every free man neither too old nor too young to fight -- could be summoned and they would supply their own weapon, clothing, and other supplies. The authorities did not expect to have to supply these things; people were supposed to have them already; and these people were not professional soldiers, with security clearances, government jobs or something like that. They were just regular citizens.
Now, what if they tried to make some kind of law like, only people officially registered in the militia can have guns? This creates a tremendous enforcement burden and does not serve much purpose, because militia membership is supposed to be something that's extremely widespread and so guns would be all over the place. Such a rule would have run-up against another factor, which is that many people who might have been technically too old or too young, or even not eligible at any age because they were women, would still have other reasons that were perfectly reasonable for using guns -- like hunting and shooting pests around the farm. If you see a non-eligible person with a gun, it does not necessarily mean anything; maybe the gun is their dad's or their husband's or their son's; hard to say. It's not really sensible that someone in the same house, and sort of the same legal person due to coveture (the merging of a woman's legal personhood with that of her husband), could not use or put hands on the gun. Enforcing any provision like this would have been extremely tedious and involved, given that the militia relied on people storing and maintaining weapons in their homes. It would, I think, result in something that everyone familiar with the Anglo-American legal tradition, in those times and in ours, would recognize as government overreach.
In fact, the situation was that people had arms for many purposes in England and the colonies, not just for militia purposes, and this was a social institution that went back to at least the 900s in England. The militia as an institution relied on the institution of private weapon ownership, but private weapons ownership was independent of the militia, and people treated weapons like any other article of private property -- they were free to modify them, sell them, and assign them in their wills.
That's why we interpret the amendment the way that we do: in order to have a functioning militia, people need to have weapons and be familiar with them. The militia relied on a prevalent social institution of private weapon ownership: "the right of the people to keep and bear arms". The 2nd Amendment says, more or less, that obstructing private ownership of, commerce in and training with weapons would undermine the militia, and so such obstruction is prohibited.
It's been shown that many people would side with democrats on the majority of social issues and vote for them if not for their stance on firearms. If the democrats lost their ability to use that as part of their culture war platform they'd likely gain a ton of people who don't vote or vote R simply to retain their rights.
You can't reduce the culture war to gun ownership. The Dems are doing just about everything they can to alienate traditionalists in the U.S., including gun owners. It's not even the most important wedge issue anymore. Rather, gun owners are concerned about defending themselves in a country organized by Democratic party policy. They'll need the guns when the police are defunded, or when the social workers come for their children.
Yes. Child Protective Services are used as a weapon against non-traditional families here. I grew up in a house with 9 younger siblings, it was crazy, messy, and there were sheep grazing in the front yard. No abuse or drug use, my parents barely drink, and generally a very happy family.
CPS was called on us, and we all gathered outside, I believe I was 16 at the time. The nice social worker lady started asking us some questions about if we were treated well, et cetera, and I ended up getting pretty angry, and explaining to her that I really needed to get back to the college class she had pulled me out of, and then had to take my car—which I'd bought doing some software development work on the side—to the shop, and if asking she could please leave so I could go back to being a productive person.
Thankfully, I was ahead of my age, and able to beat her over the head with it, but she was looking for literally any reason to make me a ward of the state. This is more than a real fear, this is a huge problem.
I don't know about fear, though it's certainly a concern. I have had police and social workers come to my home, and to my child's school, because I let her walk to the park alone. The park was less than 100 meters from my home.
In my own childhood--an objectively more dangerous time--I explored an area of over 100 square kilometers, unsupervised and with no means of phoning home, yet suffered no problems more serious than a skinned knee.
Well, I can't say they will actually take up arms against social workers but it is a fear. Many parents fear the current trends from parental authority over children to state authority over children. If you don't see that trend, you're not paying attention. There are many parents who feel they have reason to fear home-schooling will be outlawed. There are parents who fear that children are being given instruction or choices at school that parents are not privy to and that would traditionally have required parental consent and might be considered brainwashing by some parents. Some parents fear that the this is the tip of the spear and believe they would do anything to protect their children from being harmed as they conceive of harm.
“ There are parents who fear that children are being given instruction or choices at school that parents are not privy to and that would traditionally have required parental consent”
Real enough that Utah passed a law to deal with it (i.e. "no, the state is not going to be used to abduct your children while they're walking home from the park, no matter how many times Karen calls us about uNsUpErViSeD cHiLdReN").
Is it that far-fetched to be wary of concern trolls given that the state allows itself to be used as their weapon?
I'm not surprised by that but that's just private exploitation. I mean the industries that have grown like a cancer on state and federal government. They have found it is very profitable to medicalize, sexualize, indoctrinate, and otherwise commercialize children. The only thing standing in the way are those pesky parents who want to protect them. The obvious strategy is to use their power to promote laws that give the state more authority over children or to give impressionable children more autonomy from their parents. The state acting in loco parentis implements the marketplace these industries profit within.
To get back to your example, there is a disturbing overrepresentation if pedophiles aiding and abetting this process. I guess they are opportunistic and see only benefits for themselves.
This is silly, because Gun laws are a central part of the platform and can't be abandoned.
This is like saying if Republicans just dropped anti-immigration from their platform they'd gain a ton of people who don't vote for them because they're Mexican.
Any move like this fundamentally alienates the base.
What keeps a party's platform from changing? Would former republicans vote democrat if the republican party dropped its anti-immigration stance? Surely not, as there is still abortion, taxes, guns, etc.
When the Supreme Court "ended the culture war" about abortion with Roe did it result in the right wing giving up and deciding to get other things done? Or did it get turned into a core issue for recruiting generations of Republicans to overturn it?
The National Firearms Act would like to have a word it is unconstitutional on it's face despite what the Supreme Court says. 'Shall not be infringed' hasn't been the law of the land since the 1930's.
Maybe we'll get lucky and this conservative supreme court will do one big thing right and declare all federal firearms regulations null and void thus ending this culture war and forcing the politicians to fix actual problems. However, that is highly unlikely.