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View Diary: Michael Moore: The gun lobby, tonight, is on the ropes. (Updated 2x!) (192 comments)

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  •  Yeah wouldn't seem tough (2+ / 0-)
    Recommended by:
    polecat, mkor7

    when it says you know, militia. But, those non-judicial activists made sure we knew HOW they REALLY meant militia (as in didn't mean anything).

    Three basic competing models were offered to interpret the Second Amendment:[107]

        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.[108] These interpretations held that this was a grammar structure that was common during that era[109] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.
    So much for strict construction?

    THE RIGHT OF THE PEOPLE (from Heller)

    Justice Antonin 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”.[116]

    Justice John Paul Stevens countered in his dissent:

        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”.[117]


     Meaning of "keep and bear arms"
    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.”[116]

    In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:

        The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.[117]

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