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  •  Exactly (none)
    The second amendment is actually quite literally qualified by the phrase "a well regulated militia being necessary...".

    The concept of a militia as a fairly regular police/paramilitary force has been well-documented by many Consitutional scholars.

    The 2ndamendment is hardly an unqualified slam-dunk for unfettered gun ownership.

    George Bush prancing on the aircraft carrier: one of America's worst moments

    by grushka on Wed Jun 08, 2005 at 10:11:43 AM PDT

    [ Parent ]

    •  Individual rights (none)
      The militia is already clearly defined in US Code under Title 10, Subtitle A, Part I, Chapter 13, Sec311:
      (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.

      Nothing in law requires that a militia member needs to be police or paramilitary. All US citizens are part of the unorganized militia.

      The 2nd Amendment is not about unfettered gun ownership, just as the 1st does not allow for libelous print. The 2nd Amendment, however, is an individual right and should have the same high bar for infrigement as the other individual rights. Most urbanites and liberals (the core of the Democratic Party), however, don't see it that way.

      •  Well Regulated (none)
        Where in the constitutional adjective "well-regulated" does one envision an unorganized, armed citizenry? I'd call that either vigilantism, anarchy, or mob power.

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        by easong on Wed Jun 08, 2005 at 11:20:26 AM PDT

        [ Parent ]

        •  Well-regulated could mean many things (none)
          One doesn't have to envision anything. It is already spelled out that an unorganized, armed citizenry between 17 and 45 years of age IS a part of the milita. "Well-regulated" does not mean unfettered. The government can impose meaningful restrictions, just as there are limitations on First Amendment rights, but any restrictions must meet the high bar of taking away an individual right. Registration, bans, usefullness tests all fail that high bar.

          "Well-regulated" could just as easily be interpreted to mean that the government could require every member of the militia to own a firearm (like in Switzerland)  

          •  Perhaps... (none)
            ...the amendment can be read to say that FEDERAL government cannot interfere with a STATE's right to regulate its militia.  An exception to the general doctrine of federal supremacy, noted above.

            So while there may be limits on what the federal government can regulate when it comes to firearms, the states have the right to regulate such miltia's under their general police power.

            •  Dangerous road to go down (none)
              Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc.

              The Constitution represents the supreme law of the land and must logically supercede State law when said law affects more than one State.

              •  No (none)
                "Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc."

                These are two separate issues.  With respect to the 2nd amendment, the question is does it only prohibit the feds from restricting such a right, or does it also apply to the states.  The Bill of Rights was a check on federal power.  The Court has, generally, said that the 14th amendment protections "incorporate" those rights to make them applicable to states as well.  However, it has never said that this is a blanket rule, and given the language of well regulated militias, one can say that the 2nd amendment is not incorporated.

                As for Congress "interfering" with state laws restricting such rights, the Court has, sort of, indicated that they can't do that, because that is the province of the Courts to decide what the law is.  That was decided when the Court struck down the Religious Freedom Restoration Act.

                There's an open question as to the "enforcement" power under the 13th, 14th and 15th amendments, as to how far Congress can go in determining the scope of such protection.  But generally, the Supreme Court has said that THEY determine the scope of Constitutional protections, not Congress.

                •  Individual right (none)
                  Yes, I do agree it is possible to opine that the Second Amendment is only a check on the Federal government (that is until a pure Second Amendment case comes up before the modern Court). It is  equally possible to state that it also applies to  states under the 14th Amendment. I personally feel that as an individual right, the Second Amendment deserves the same widespread protections as the other individual rights in the Constitution.

                  I apologize for my miswrite on this sentence "Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc." I did not mean to imply that Congress would interfere with State laws. I meant that using the interpretation that the Constitution is only a check on the power of Federal gov't would allow the States to restrict fundamental rights (unless a specific Court ruling prevents it)

                  Under this interpretation, the various state laws banning gay marriage are legal as Romer v Evans does not apply to marriages specifically. The Court declined to hear Largess v Supreme Judicial Court of the State of Massachusetts where they easily could have extended 14th Amendment protections to marriage using Romer v Evans as precedent. That they did not do this does not mean that laws against gay marriage are unconstitutional. It just means that (like many gun laws), they are not unconstitutional yet.

          •  You mean MALES have an individual right (none)
            Leaving aside the issue of whether it makes any sense to look to statutes to interpret the constitution (which seems to get it backward), your definition gives women no right to bear arms. That would sure beat an interpretation that gives everyone a right to bear arms!
            •  Technically true. (none)
              Technically that is true (at least until the Equal Rights Amendment is finally ratified).

              One can also read that since women are not specifically mentioned that they are simply not members of the militia. If one believes in the collective interpretation of the Second Amendment, then yes females have no right to bear arms. If one follows the individual rights interpretation, then females are certainly able to own firearms, they are simply not militia members.

              It is not unusual for women to be placed in a weird status with arms, militia and military service. Women are still not allowed to be in active infantry combat. The ERA would likely automatically change that as well.

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