The Supreme Court has already applied that standard to the First Amendment, so they might as well go for the full set.

There were many differences of opinion about many things in both the Constitution and the Bill of Rights and many of them were compromised, but the preferable solution to solving that issue is to amend the Constitution, not pretend something isn't there or that they didn't really mean it.

Wrong_Intentions: Nabb1: There were many differences of opinion about many things in both the Constitution and the Bill of Rights and many of them were compromised, but the preferable solution to solving that issue is to amend the Constitution, not pretend something isn't there or that they didn't really mean it.

You mean like the Militia Clause?

That's not a "clause." The militia reference is an explanation as to why the right to bear arms is important, not a restriction or qualification of it. And in colonial times, any man who was old enough to shave was more or less a member of "the militia" in his particular area. Since local militia were self-organized and basically had no funding, they were often poorly equipped, lacked training and seldom drilled. "Well-regulated" in those days basically meant they were equipped and trained, not formally an operation of the federal or state government.

The founders never intended for the 2nd Amendment to arm every individual in the nation. But everyone's already armed and you can't simply legislate that away. Establish sensible gun control laws and let people defend themselves as they see fit.

BigTuna: The founders never intended for the 2nd Amendment to arm every individual in the nation.

True, slaves and women were kept compliant.

Nabb1: That's not a "clause." The militia reference is an explanation as to why the right to bear arms is important, not a restriction or qualification of it.

I don't disagree, but from a pure drafting perspective, it's very bizarre that they included such an explanation there, but nowhere else in the first ten amendments.

If you are going to go by Original Intent, seems to be trying to find out Madison's intent is just as important as anyone else's.

kronicfeld: Nabb1: That's not a "clause." The militia reference is an explanation as to why the right to bear arms is important, not a restriction or qualification of it.

I don't disagree, but from a pure drafting perspective, it's very bizarre that they included such an explanation there, but nowhere else in the first ten amendments.

Yes, but "A well regulated Militia being necessary to the security of a free State" doesn't make much sense in front of the rest of them.

I know what you mean. I'm sure someone has written something about it somewhere, as much as it's meaning is debated.

Nabb1: Yes, but "A well regulated Militia being necessary to the security of a free State" doesn't make much sense in front of the rest of them.

But they would have said somethign like "A well educated people being necessary to the survival of a free government, Congress shall make no law blah blah blah speech/religion/press."

They didn't. I think that's rather meaningful.

DamnYankees: Nabb1: Yes, but "A well regulated Militia being necessary to the security of a free State" doesn't make much sense in front of the rest of them.

But they would have said somethign like "A well educated people being necessary to the survival of a free government, Congress shall make no law blah blah blah speech/religion/press."

They didn't. I think that's rather meaningful.

I think from it's historical context, it's hard to imagine the phrase being a qualification or restriction of the right. Limiting a man's ability to own a firearm would have meant a virtual death sentence on the frontier. Guns were expensive, and a family was lucky to have one really high-quality rifle. But to any man heading out into the wilds - which was about all this country was at this point - a rifle was a necessity to feed and protect one's family. Add to that the necessity of having every able-bodied male available to serve in the militia, and I can't conceive of a situation where they were trying to restrict the right. Bear in mind, the new federal government had dealt with Shay's Rebellion before the Bill of Rights was even drafted, so they were well-aware that an armed populace could pose an internal threat as well. Given all of that, I fail to see how the phrase is a qualification of that right, and would in fact be an explanation as to why it might be a good idea.

DamnYankees: They didn't. I think that's rather meaningful.

Absolutely. By absolutely I get the feeling that the Second Amendment was so highly thought of that it needed more than the First in terms of its protections.

R.A.Danny: DamnYankees: They didn't. I think that's rather meaningful.

Absolutely. By absolutely I get the feeling that the Second Amendment was so highly thought of that it needed more than the First in terms of its protections.

On what basis do you make this claim?

Nabb1: I think from it's historical context, it's hard to imagine the phrase being a qualification or restriction of the right. Limiting a man's ability to own a firearm would have meant a virtual death sentence on the frontier. Guns were expensive, and a family was lucky to have one really high-quality rifle. But to any man heading out into the wilds - which was about all this country was at this point - a rifle was a necessity to feed and protect one's family. Add to that the necessity of having every able-bodied male available to serve in the militia, and I can't conceive of a situation where they were trying to restrict the right.

Isn't it obvious? You just said it yourself. They concieved this right in the context you just mentioned. So why is it not logical to say that since huge portions of this country no longer operate in anything like these concieved conditions, the right doesn't really apply the way it used to?

To me, it sounds like your entire post there was all about contextualizing the amendment. And on that I mostly agree. But what happens when you contextualize? You also provide the negative space, the anti-context, where the right no longer makes sense.

DamnYankees: On what basis do you make this claim?

On the basis that there is a REASON to the Amendment. it is that important.

R.A.Danny: DamnYankees: On what basis do you make this claim?

On the basis that there is a REASON to the Amendment. it is that important.

Doesn't the provision of a reason also imply that if the reason no longer applies, the right itself is obsolete?

DamnYankees: R.A.Danny: DamnYankees: On what basis do you make this claim?

On the basis that there is a REASON to the Amendment. it is that important.

Doesn't the provision of a reason also imply that if the reason no longer applies, the right itself is obsolete?

No, the verbiage means that this nation was created with the thought that there will always need to be a militia, and that need will not go away.

R.A.Danny: No, the verbiage means that this nation was created with the thought that there will always need to be a militia, and that need will not go away.

But would you agree that, logically, if one thought the reason they gave no longer applied, then the right itself would be obselete?

R.A.Danny: DamnYankees: On what basis do you make this claim?

On the basis that there is a REASON to the Amendment. it is that important.

the 2nd Amendment protects all the other Amendments

DamnYankees: But would you agree that, logically, if one thought the reason they gave no longer applied, then the right itself would be obselete?

No, by the verbiage, that would NEVER be obsolete.

patrick767: wtf? You guys are actually having a reasoned, polite debate that's kind of interesting. Where the fark am I? Somebody green this baby so we can get some poo flying!

DamnYankees is a seemingly intelligent person that I adamantly disagree with on this particular subject. Once these threads get ugly I step away.

R.A.Danny: DamnYankees: But would you agree that, logically, if one thought the reason they gave no longer applied, then the right itself would be obselete?

No, by the verbiage, that would NEVER be obsolete.

So you don't think that the 2nd amendment is an If/then structure?

DamnYankees: So you don't think that the 2nd amendment is an If/then structure?

No I do not. There is a reason, and then there is the protection.

R.A.Danny: DamnYankees: So you don't think that the 2nd amendment is an If/then structure?

No I do not. There is a reason, and then there is the protection.

So what do you think a "reason" is.

A reason is a justification. An explanation. If the reason no longer holds, then surely the conclusion can no longer hold.

I seriously don't know what function you think the first clause of the 2nd amendment serves. Let me put it this way: how would our laws about guns be able to change if that clause wasn't there, in your view?

DamnYankees: I seriously don't know what function you think the first clause of the 2nd amendment serves. Let me put it this way: how would our laws about guns be able to change if that clause wasn't there, in your view?

That's an easy one to answer. The 2nd only protects weapons suitable for militia service. Things that might fall outside its protection: an Iron Maiden, brass knuckles, pocket pistols, single shot shotguns, nukes, etc.

DamnYankees: So what do you think a "reason" is.

In this case, it is a mechanism to keep the Amendment from being tampered with.

DamnYankees: Let me put it this way: how would our laws about guns be able to change if that clause wasn't there, in your view?

Theoretically, nothing. In reality, someone would still be trying to meddle with it.

patrick767: It's good to have more justification for telling people, no, you can't have a fully operational main battle tank. Not yours.

You're no damn fun.

After what they did to the Fourth Amendment, I don't really think we should let them try to "interpret" any of the other ones.

Theaetetus: jbuist: That's an easy one to answer. The 2nd only protects weapons suitable for militia service. Things that might fall outside its protection: an Iron Maiden, brass knuckles, pocket pistols, single shot shotguns, nukes, etc.

I would agree... People tend to think that the 2nd Amendment also covers the right to self-defense and the right to hunt, but those kinda miss the point of the earlier clause and instead choose just to ignore it.
The right to self-defense and the right to hunt for food or sport would be rights to security in one's person and property, and part of the right to liberty, and thus would be found in the penumbras of the 5th Amendment.

/pedantic, but consistent

Actually, they would be historical rights that would be covered under the Ninth Amendment

DamnYankees: Doesn't the provision of a reason also imply that if the reason no longer applies, the right itself is obsolete?

I was not aware that dictators no longer exist, nor can exist.

Lando Lincoln: DamnYankees: Doesn't the provision of a reason also imply that if the reason no longer applies, the right itself is obsolete?

I was not aware that dictators no longer exist, nor can exist.

Not one for thinking in hypotheticals, are you?

Theaetetus: read [...] Thune?

There's your problem right there...