This is only a Preview!

You must Publish this diary to make this visible to the public,
or click 'Edit Diary' to make further changes first.

Posting a Diary Entry

Daily Kos welcomes blog articles from readers, known as diaries. The Intro section to a diary should be about three paragraphs long, and is required. The body section is optional, as is the poll, which can have 1 to 15 choices. Descriptive tags are also required to help others find your diary by subject; please don't use "cute" tags.

When you're ready, scroll down below the tags and click Save & Preview. You can edit your diary after it's published by clicking Edit Diary. Polls cannot be edited once they are published.

If this is your first time creating a Diary since the Ajax upgrade, before you enter any text below, please press Ctrl-F5 and then hold down the Shift Key and press your browser's Reload button to refresh its cache with the new script files.


  1. One diary daily maximum.
  2. Substantive diaries only. If you don't have at least three solid, original paragraphs, you should probably post a comment in an Open Thread.
  3. No repetitive diaries. Take a moment to ensure your topic hasn't been blogged (you can search for Stories and Diaries that already cover this topic), though fresh original analysis is always welcome.
  4. Use the "Body" textbox if your diary entry is longer than three paragraphs.
  5. Any images in your posts must be hosted by an approved image hosting service (one of: imageshack.us, photobucket.com, flickr.com, smugmug.com, allyoucanupload.com, picturetrail.com, mac.com, webshots.com, editgrid.com).
  6. Copying and pasting entire copyrighted works is prohibited. If you do quote something, keep it brief, always provide a link to the original source, and use the <blockquote> tags to clearly identify the quoted material. Violating this rule is grounds for immediate banning.
  7. Be civil. Do not "call out" other users by name in diary titles. Do not use profanity in diary titles. Don't write diaries whose main purpose is to deliberately inflame.
For the complete list of DailyKos diary guidelines, please click here.

Please begin with an informative title:

I write this as I think back to conlaw, and how much I appreciate the professor I had who had us question if it was a good decision not quiz us on the outcome (most hated it).

There are so many diaries pointing out how the second Amendment (as Read) means something else. Unfortunately, that was debated and on that ground alone that viewpoint is extinct.

The right enjoys calling Liberal Justices activists. I do not say that as you are all wrong. I agree with you. The history, grammar, use, etc. all point to an anachronism. BUT, the salient point I want to convey is District of Columbia v. Heller and McDonald v. Chicago make it a moot point. Anything we say about grammar, use, if you found something signed by all the drafters saying we don't mean we want everyone to have a musket. . . it simply does not matter.

Why? The idea of judicial activism irks me. It is supposed to be when Judges "Make Law". But any decision, that is done. What the judges say IS THE LAW. Even when they say "but this only applies to these narrow circumstances". It is the law. That is what Judges do- make law. So All judges are activists. All the cases are the LAW. The Second Amendment is as interpreted by those cases.

There is no means around that. So let's think differently. . .


You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

I am sorry to rain on any parades. I agree with you. See my prior comments. But when a majority decided the prefatory clause about Militia didn't matter. It's over. You can get a new SCOTUS to say otherwise, or an Amendment. I don't see either. Even a new Justice tilting the balance would have trouble doing so because of the concept of "stare decisis" we respect prior law for continuity.

All of the arguments, (including those I have made) were there. They lost. Because the non-activists decided as they did.

Plain Reading:

Three basic competing models were offered to interpret the Second Amendment:[117]

    The first, known as the "states' rights" or "collective rights" model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.

    The second, known as the "sophisticated collective rights model", held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.

    The third, known as the "standard model", was that the Second Amendment recognized the personal right of individuals to keep and bear arms.

Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.[118] These interpretations held that this was a grammar structure that was common during that era[119] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[120

Does this make most sense? Yes.
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens”
But that was Justice Stevens writing for the Dissent.

So it doesn't matter. It doesn't matter that the history shows the need for a militia and the attempts to create:

In Federalist No. 29, Alexander Hamilton suggested that well-regulated refers not only to "organizing", "disciplining", and "training" the militia, but also to "arming" the militia:

    This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress."[48]

    A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[48]

    "If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia".[48]

That does not matter.
On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

    [E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[101]

This nor the historical look at its use DOES NOT MATTER . . . that history shows what was done with the Amendment further:
The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[104] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[105] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[105] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[105] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.[106] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C. and the White House being burned down in 1814.[103]
It does not matter.

Finding a document laying to rest any ambiguity, would not matter. Pontificating about it does not matter (the 2nd Amendment- I have said pre-Heller for anyone to find me a part of he constitution that provides for an individual's RIGHT to bear arms, no one could- now they can).

Why? Stare Decisis. This was all there, they knew it. But those "Strict Constructionists" MADE LAW.


Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
The Second Amendment now means as they stated.

The right of the people means as Justice Scalia, writing for the majority in Heller, stated:


 Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”
What we know as intelligent beings . . . does not matter.

In Heller the majority rejected the view that the term "to bear arms" implies only the military use of arms:


Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.
Parsing the second amendment does nothing. It was parsed. Many agreed with you. But the Second Amendment now means what Scalia Said.

Irrelevant (unless you do an in depth analysis do not matter):
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment.

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons.

We have HELLER. Throw out reading the Second Amendment. Stevens did. He strictly construed . . . and lost

So let's turn our attention there. It is not a TOTAL dead end.

The second Amendment really does not matter (what it meant, says). Not now not for a long long time. It, or the Supreme law of the land mean:

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

I don't see how it says that BUT THAT IS THE LAW.

(a) 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. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.[147][148]

(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

To the extent you are going through Gun Law, that is now the start. Anything else is criticism.

But, they did not take every avenue. As I bolded (as important limitations on what the Second Amendment means, but really what Heller means). Just as they stated the Supreme Law as to Bush (and made him president), this is, but they did say

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons
Those are tools. Those are also "the law", who, where, and the commerce clause.

I am not saying it is unimportant to view the historical context. But the here and now, gives us some scraps. Yes these were pre-(what I hope is an embarrassment that continues to resonate) Tragedy. But it does not change it.

Only utilizing the tools, and seeing the cracks can NOW. And there are. So Let Law School Students write about in the wake of this tragedy how Heller hand-cuffed us, but it still left these conventional prohibitions (which viewed historically were akin to registration, esp re state lines, etc etc).

My friends, start from there (the law now). And don't stop, but do not forget we are not fighting the language or lack of in the 2nd Amendment. That battle is over. We can, however, parse it and the Commerce Clause, not selling to "mentally disabled" leave rather wide doors (as do other parts- but re-arguing Textual interpretation is fruitless). Don't stop either way. It may be of import, but everyone discussing the second amendment should have a sound understanding of Heller and McDonald.  

9:48 AM PT: Thank you for the discussion:

And to clarify, I suppose in going over so much- I agree it is of import. And I suppose I missed a focal point which is that starting at Heller, there remains ways of achieving what is desired. I probably cannot state as I wish but it appears most understand me (text of 2nd amendment is important, except it no longer says what it means, so we need to work from what now is the "Law", that isn't to say as I have numerous comments about the 2nd Amendment History it unimportant).

And thank you Mr. Norton for your observation.

9:53 AM PT: A comment below of import (at least to me as I learned con Law):

My Con-Law professor taught in a way everyone hated. Realism. I've written before about Citizens United Etc.

I'd say his theme throughout was they are 9 men and women. "Why do we Listen"?

The biggest moment being pre new-deal. Where FDR basically said, these are 9 ppl that have no comprehension and are holding me back. Then a Justice Roberts changed his mind on everything and FDR proceeded.

Perhaps we are on the verge of something similar. Yes, always political, but they walk a tight rope to not be transparent, lest we ask this question.

"The Second Amendment Says "

"Why Did you say  __"


Those of Citizens United.

I brought this up before at length and better substance in why I thought it possible the ACA would be upheld, in that might be the straw post Citizens.

Perhaps we are reaching another moment where someone on the Court will do some Soul Searching. And of course the erroneous nature of their decisions is of import.

But action is needed, and for the time being they are limited by these decisions.


10:44 AM PT: Wow. First time on the REC List. Thanks everyone. And this diary turned out how I hoped which is different viewpoints I'd say connected educating each other.

Extended (Optional)

Originally posted to ClevelandAttorney on Wed Dec 26, 2012 at 08:55 AM PST.

Also republished by Firearms Law and Policy.

Your Email has been sent.