</i>"The gun debate has always been a tricky one, in my mind. I'm not a Second Amendment absolutist in that I believe it is within the individual state's rights to 'regulate' the militia, so if Massachusetts or New York want to limit gun ownership, that's their prerogative."</i>

But that's not a tenable reading of the Second Amendment. It states that 'the right of the people to keep and bear arms shall not be infringed.' And the Bill of Rights doesn't GRANT governmental powers, so claiming that the phrase 'well-regulated' was intended to affirm that the government can regulate gun ownership is simply wrong. It says precisely the opposite.

Moreover, the phrase 'well-regulated' doesn't mean what you think it does. In the view of the founders, as expressed in the Federalist papers, 'well-regulated' meant well-equipped and trained. This cannot occur if the populace doesn't own guns.

I agree that the BoR doesn't grant governmental powers. However, I do not believe that it restricts the individual states of the power of regulating the militia. I do believe that it restricts the federal government from doing so, however.

Alex,

That's still not a tenable viewpoint. The Second Amendment cannot be read to read that the states can regulate the right to bear arms. Even ignoring the issue of the 14th Amendment, which incorporates the Bill of Rights to the states, you're using an incorrect definition of 'well-regulated' and ignoring the plain language of the amendment itself.

It reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." It doesn't say 'Congress shall not infringe upon the right to bear arms.' It says that the right to bear arms shall not be infringed, period. This is a very important distinction. Madison's initial draft of the First Amendment, for example, said only that no 'national religion' could be established, but the word 'national' was subsequently removed so that the rule would apply to all levels of government. The founders were mindful, then, of the need to specify whether or not an amendment was applying solely to the federal government or to state and local authorities as well.

And then there's original intent -- Hamilton wrote in Federalist #29 that "[l]ittle more can be reasonably aimed at, with regards to the people at large, than to see them properly armed and equipped..." You cannot make the milita more 'well-regulated' by restricting the right to bear arms, which is why the Second Amendment explicitly states that the motivation behind the right to bear arms is the maintainence of '[a] well-regulated militia.' So you're still ignoring what the Bill of Rights actually says.

Also in Federalist #29 Hamilton argues that the militia ought to be directed by the federal government, which really eats away at your contention that the right to bear arms doesn't apply to the states because they may regulate the militia. 'Well-regulated' means properly disciplined and equipped, and the milita may be directed by the federal government. Your beliefs aside, the Second Amendment still says what it says.

Owen, I believe Alex is correct.

The Bill of Rights, as originally written, did not bear upon the relationship between state and individual; the amendments only applied to federal governmental action.

It was not until the Fourteenth Amendment that <i>some</i> of the Bill of Rights were extended to cover state governmental action. And, the Second Amendment is not among those that have been extended.

If memory serves correctly, all provisions of the Bill of Rights have been incorporated (that is, extended to state action) <b>EXCEPT</b>:

2nd's right to bear arms;
3rd's protection against quartering troops (probably b/c it hasn't happened);
5th's right to indictment; and
7th's right to jury trial in civil case where amount in controversy exceeds $20.

...if memory serves correctly...

Owen,

Perhaps more important is the way in which the Bill of Rights have thus far been incorporated. The Supreme Court closed off the "privileges and immunities" route (in the SlaughterHouse Cases), forcing future arguments for incorporation to go through the "due process" provision.

Due process is not an absolute guarantee of liberty; it's a requirement that we receive due process before being deprived of liberty.

The baseline DP requirement is that an impingement of liberty not be arbitrary, that the government have a legitimate reason for stifling your liberty. This is an idea that the founding generation termed ‘ordered liberty’. True freedom is not anarchy, but operating under a system of reasonable law and order, reasonable boundaries.

So, consistent with this idea, government CAN regulate and restrict our freedom, as long as it is not arbitrary in so doing--that is, as long as the government can show that the ends (of the action) are legitimate and that the means are reasonable.

If you want to argue that the states are not reasonable in their regulation of the militia (via gun control, etc.), or that the Second Amendment is so fundamental a right that it OUGHT to be incorporated and extended to state action, then, you are certainly free to do so. But, until the Supreme Court actually incorporates that provision--and please correct me if it has already done so--the argument that states cannot impinge upon the right to bear arms AT ALL is simply incorrect. They can, they will, they do.

Heidi!! So good to see you again!

:)
Didja miss me?

Heidi,

I clearly noted that the Bill of Rights does set limits on the states; the Second particularly is relevant because it is Congress that must call up the militia, and it is the states that are obligated to honor the right to bear arms for the sake of a well-regulated militia. It doesn't make a lick of sense the other way around; the Supreme Court recognized this in United States v. Miller -- a bad decision in my view, but one that did recognize that the Second Amendment applies to all levels of government.

And on the matter of the 14th Amendment; simply because incorporation hasn't occurred doesn't mean that states are justified in infringing upon the right to bear arms. None of the Bill of Rights was incorporated by the Supreme Court until the last century, long after the 14th Amendment was drafted with the intention of doing so.

And the argument that the state may 'regulate' the militia by depriving them of arms is silly. I've used the word 'untenable' thus far, but alas, it is just plain dumb. The plain language of the Second Amendment itself doesn't permit this interpretation, and neither does the use of original intent or textualism. I've explained this, so we can stop talking about 'if I want to argue' becuase I HAVE. Please read what I write before responding.

Owen,

There is no need for you to be haughty. I did read what you wrote before responding.

<i>"The Second Amendment cannot be read to read that the states can regulate the right to bear arms."</i>

The very case you cite suggests otherwise. The states have always regulated the type of arms an individual should have (both before and after the enactment of the Second Amendment). And, Miller upheld the federal government's right to do the same, by reversing the lower court's invalidation of the National Firearms Act.

Furthermore, in US v. Printz (1997), the Supreme Court explicitly stated that it had not defined the substantive right to bear arms and, more specifically, it has yet to decide whether the Second Amendment should apply to individual rights of gun ownership or to the collective right of a properly organized and regulated militia.

What it DID pass judgment on, though, was the right of the government (in that case, the federal government) to regulate what type of firearms an individual may own. It did this by ruling that a sawed-off shotgun less than 18 inches in length "had not been shown to be 'ordinary military equipment' that could 'contribute to the common defense'" and could therefore be outlawed.

Now, in your comment, you seem to alternate between the belief that "the right to bear arms shall not be infringed, period" and a vague support for Hamilton's suggestion that all military regulation should be carried out on a federal level.
If the former is your stance, I would be interested to hear your definition of a "well-regulated militia...NECESSARY TO THE SECURITY OF A FREE STATE".
If the latter is your stance, on what grounds do you disagree with Miller's ruling?

But, back to the point of Alex's post:

I think it would be ridiculous (not to mention, a violation of individual state sovereignty) for one state to sue another over the difference in restrictiveness of their gun laws. Of course, I also think it's a bit ridiculous to sue the gun manufacturers FOR GUNS BEING ON THE STREETS. (I say it this way because I can fathom other reasons for suit that would not be far-fetched or ridiculous. eg., faulty safety features, etc.)

We seem, in a generalized way, to be a society torn between detesting a government with enough power to restrict our freedoms, and, at the same time, finding ourselves without a proper fall-guy for our problems. We want to go to a bar and drink 'til we fall off the stool, if we're in the mood to do so, but we want the bartender to stop the guy on the next stool over from doing the same, for our own protection. Nevermind personal responsibility. Somebody with deep pockets must pay. It's out of hand, IMHO.

Heidi,

I disagree with Miller because it ignores the substance of the 2nd Amendment, which is that 'the right of the people to keep and bear arms SHALL NOT BE INFRINGED.' It doesn't specify that the firearms owned by individuals MUST or even OUGHT to contribute to the functioning of the milita. It simply says that individuals have a right to bear arms, and if the courts ignore this, they're just wrong.

I'll use an analogy. What if the First Amendment read: "The stability of the nation being grounded in civil discourse, the right of the people to free speech shall not be infringed?" Would we say that the government was free to infringe upon discourse it judges to be 'uncivil?' NO, because that's not a viable reading of the amendment. The amendment says that free speech can't be infringed, and it doesn't make exceptions for cases when 'civil discourse' isn't aided.

However, my point was that EVEN MILLER conflicts with yours and Alex's stated view that the 2nd Amendment only applies to the federal government and not to the states. That's what I was trying to say by referencing that case; that even with Supreme Court jurisprudence, both of you are still wrong on the law.

And I am not vascillating on this issue. I have held that the 'right to bear arms cannot be infringed,' just as the Second Amendment unequivocally states. The regulation of the milita entails seeing that they are well-equipped, trained, and disciplined. THIS CANNOT BE ACCOMPLISHED THROUGH GUN CONTROL, WHICH THE SECOND AMENDMENT CLEARLY PROHIBITS.

Owen,

Your First Amendment analogy does not hold water. Under the wording you suggest, the Court could still conceivably uphold laws prohibiting speech of incitement such as yelling "Fire!" in a crowded theater, not because such speech is not civil but because it is not discourse. And, the nation being founded on civil discourse is irrelevant in relation to speech that not only does not further that noble institution but actually inhibits it or impinges upon other liberties. (And, dare I point it out? They HAVE done this. And the Court has done it without any articulated purpose within the First Amendment. Why would they not do the same if the purpose behind the amendment were articulated therein, and the speech in question did not further that purpose?)

The same could be said of the Second Amendment. Though a well-regulated militia was deemed necessary for the security of a free state, arms that do not further that goal but can (and arguably do) in fact hinder the safety and security of the state should be proper subjects of regulation or prohibition.

This is the heart of substantive due process. Reasonable means to a legitimate end.

If Alex and I were wrong about the law, as it exists, there would be no state gun control laws in existence today. If you believe the states OUGHT not be allowed to create or enforce such laws, I will certainly accept that as your opinion. But, to argue that states CANNOT, and to posit that statement as fact, is quite obviously in conflict with reality.

Owen,

This discussion has ceased to be either engaging or enlightening, and for whatever share of the fault is mine, I do apologize. But, I have neither the time nor the desire to continue this any further. Make any final comments (to me) you wish, but know beforehand, they will go unanswered (by me).

Heidi,

ARRRGGGHHH. Don't use the 'fire in a crowded room' analogy. It's an infamous exception borne out of two things: 1) a conflict between freedom of speech and the right to live, and 2) the intent of the founders not to protect manifestly destructive speech (this also includes obscene phone calls, harassment, etc).

Compare this to the Second Amendment. We would surely want the government to ban private ownership of nuclear missiles, due in part because of the two reasons mentioned above. However, it does not follow that the states have an unlimited right to regulate firearms. To believe that would be to believe that the Second Amendment effectively has no meaning; that the rights it grants individuals are minor and subject to radical restrictions.

This is what you and Alex appear to be arguing, and it's wrong, period. There's no merit to it. You can point out that the government refuses to recognize the substance of the Second Amendment, but this only points to ability. I have the ability to kill somebody, and the government has the ability to kill everybody. That doesn't make it rational or justified.

And even if I did agree with you... Wouldn't the militia need machine guns, handguns, etc, to be effective? And thus these couldn't be regulated, yes? No matter how you slice it, the Second Amendment simply says what it says. It gurantees a right, and the states have no business violating it.