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Assuming of course, that the Constitution currently guarantees that as a personal property right. I'll repeat, Shantinik has provided us all with reasonable evidence to the contrary. Furthermore you seem to concur that other American citizens including judicial authorities, share this understanding and interpretation.

Also I wouldn't, if I were you, lose any sleep over the fear of the US ever becoming an Islamic state at least during this Millenium. With the present demographic trends Roman Catholicism would be the more plausible scenario. Don't worry be happy!

The U.S. no more guarantees the right to bear arms outside of the context of a well-regulated militia than it guarantees the right to own a can opener. (Both are "property rights".) And from actual court decisions since 1939, and reaffirmed by the Supreme Court (with Rehnquist and Burger in concurrence) in 1981, it is more likely to regulate and/or ban the personal possession and use of firearms than they are that of can openers.

The NRA doesn't like this reality, but it is clear from two decades of history that they are not willing to challenge it.

I'm satisfied, others should be too, unless of course they don't trust the Supreme Court to decide on constitutional issues... Oh dear, I shouldn't have said anything... that could raise some potential questions about the US Supreme Court's ruling on the Florida vote count in the last election. Wouldn't want to raise any hackles here.

I don't question the Supreme Court's interpretation of the Second Amendment so much as I question Shantinik's interpretation of their interpretation.

We have already beaten Miller to death and it is obvious that Renauda chooses to accept Shantinik's rather facile reasoning over what is plainly stated in the ruling. Far from rejecting the notion of an individual right it reaffirms that right. It is a rather flawed ruling (incomplete to be more precise) in that its logic leads to absurd results (as Shantinik has demonstrated). However, it is silent on the subject of self-defense and it can in no way be interpreted as limiting the ownership of firearms to militia use only.

As far as Burger is concerned, I am not familiar with the particular case to which he refers but a statement by a particular Justice (who, by the way, was famously hostile to the individual right interpretation) made during oral arguments does not constitute a "ruliing".

Actually as recently as 1990 the Supreme Court said the second amendment was probably an individual right. In the Verdugo-Urquidez the court listed various references in the Constitution to rights of the people, and wrapped it up with

"While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

It doesn't require any rubber band logic to understand that plainly.

There's more at Guncite.com , a useful reference for dispelling myths.

There has never really been a question as to whether it is an individual right. What the courts have ruled repeatedly, however, is that the right enunciated in the Second Amendment (as opposed to "can opener" rights) only applies in the context of a well-regulated militia.

The proof, of course, is in the pudding. As far as I am aware, there are no laws regulating the sale, possession, and use of can openers, but there are dozens (and in dozens of states) regulating the sale, possession, and use of firearms, including bans on particular types of weapons. And when tested, these laws are virtually always upheld.

In other words, the Second Amendment conveys fewer rights to firearm possession than are conveyed by property rights to owners of can openers.

Shantinik, you are wrong. Totally, utterly, completely, wrong. Your comparison of buying, selling, and owning can openers is ridiculous. It is what Jbryan aptly named "fun logic". We have a right to defend ourselves. Guns are a defense mechanism, and reasonably intelligent men understand that. Can openers are not a defense mechanism - they're can openers.

The Constitution says the right of the people to bear arms shall not be infringed. Can openers are not called "arms". The Constitution does not say "the right of the people to open metal cans shall not be infringed". The Constitution was not written by a bunch of men sitting around seeing who could come up with the silliest idea - it was written by sober men of good sense, serious in their purpose, to make sure the people would always be free, and safe from their government. As of now, I'm unaware of the government assembling a can opener platoon, so I think it is reasonably certain we don't have to worry about jackboot thugs wielding can openers surrounding our homes. But your claim above is not only completely wrong, it is dumb.

The logic of Miller, shorn of sophistry about can openers and suitcase nukes, would lead one to reasonably conclude that the Second Amendment affirms the individual right to own whatever types of arms are standard issue in the military today. It does not necessarily limit one to these arms it simply states that the regulation by the state of a sawed-off shotgun is beneath judicial review. I am unaware of any infantry units that are issued suitcase nukes let alone sawed-off shotguns.

Moreover, the Miller decision does not say anything about the use of a firearm, the ownership of which is protected in any case, for the purpose of self-defense. Shantinik brings up some rather glib remarks made by a Justice during oral arguments about hunting and fishing as some indication to the contrary. This is nonsense. Hunting and fishing are not even under discussion here and a few off-hand remarks do not transform a firearm into a fishing lure (or can-opener).

Central to Shantinik's thesis is the presumption that nothing short of WMD is practical for use by the populace in defense against the government. This, also, is preposterous as it presupposes both that the government would resort to the use of WMD against its own population and that a populace in possession of even small arms is no deterent against tyranny. It takes little thought to see the difference between having only to employ the mere threat of force and the certainty that its use will be necessary when abrogating personal or civil rights of the people.

I will not go into existing federal and state laws other than to say that, in the case of federal laws, it has already been established that the Second Amendment does not allow us to own any type of weapon we want (so much for suitcase nukes). Some reasonable regulations have been understood in general to be acceptable. In the case of state laws, this is an example of the Supreme Court's unwillingness to extend the same Fourteenth Amendment protections to the Second Amendment as they have all of the rest of the Amendments that affirm individual rights.

It would be an interesting intellectual excercise (one for which, regrettably, I have no time) to parse the First Amendment and associated decisions in a manner similar to that employed by Shantinik with regard to the Second Amendment. There would be some rather interesting results.

It has long been said that if the Second Amendment were to be interpreted in a manner similar to the First, ownership of fully automatic weapons would not only be a right but a responsibility.

from the guncite link provised by JKeene:

"This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution."

"...they existed prior to the Constitution". In otherwords Americans once had the right to bear arms but probably lost it as a result of armed insurrection against and rejection of British rule. Shantinik is therefore right in his can opener analogy- unless the can opener can be linked to its utilization in an armed state militia there is no specific constitutional right of ownership.

Interesting that Canadians are likely to have a stronger claim to the right to bear arms under British Common Law than do Americans under the Constitution.

Renauda,

I believe you misunderstand. The Constitution does not "create" any rights. It merely enumerates rights (and not necessarily all of them) that are to be free from infringement by government. The rights were understood to have always existed; Before the Constitution and after.

No I don't misunderstand anything. Rather, as Shantinik has reasonably demonstrated, it is the opposite: you read into the constitution what isn't there. Americans abrogated their rights as loyal subjects of the British Crown by enagaging in armed insurrection and rejection of British rule. Under the British, Americans did in fact have the right to bear arms as personal property but forfeited this right in favour of state militias.

On the other hand we retained this right under British Common Law and the British North America Act of 1867. As such, if Americans had been patient and negotiated Dominion status (something teh British surely would have granted)with British, you would not have lost your rights to bear personal arms under Common Law. :p

My take on it is slightly different. I think Americans have the common-law right to bear arms as personal property much as they have the right to bear can openers. As JBryan has correctly pointed out, a Constitutional Amendment was unnecessary for that purpose.

What both the Amendment, subsequent legislation at local, state, and federal levels, and more than 60 years of court decisions (now unchallenged by the NRA) make clear, that right is not absolute EXCEPT as it is seen in the context of maintaining a "well-regulated militia". Outside of that context, the right to bear arms can be, and has been, substantially more circumscribed than the right to bear a can opener, and the courts have ruled consistently that this is so (though I know of no court ruling related to can openers.)

My take on it is slightly different. I think Americans have the common-law right to bear arms as personal property much as they have the right to bear can openers. As JBryan has correctly pointed out, a Constitutional Amendment was unnecessary for that purpose.

What both the Amendment, subsequent legislation at local, state, and federal levels, and more than 60 years of court decisions (now unchallenged by the NRA) make clear, that right is not absolute EXCEPT as it is seen in the context of maintaining a "well-regulated militia". Outside of that context, the right to bear arms can be, and has been, substantially more circumscribed than the right to bear a can opener, and the courts have ruled consistently that this is so (though I know of no court ruling related to can openers.)

You are entitled to disagree. The NRA, in not challenging these circumscriptions for the past two decades, apparently doesn't.

I know you two are having a lot of fun with this but just in case you might be interested in a serious discussion of this issue:

It is by no means clear that the right to own and bear arms is limited to the context of maintaining a well-regulated militia. You have provided some rather tortured logic to represent the notion that owning and bearing arms is protected by the Second Amendment but that the use of these arms for personal defense is somehow not. It requires a strange use of logic to come to the conclusion that I am allowed to own a firearm to protect myself from government but from nothing else. That is just plain silly.

The fact that there have been some restrictions (on the federal level) placed on types of firearms that can be owned is simply a reflection of the fact that none of the rights protected by the Constitution are absolute. There have always been reasonable restrictions placed on any of these (we are all familiar with the "yelling fire in a crowded theater" scenario) but these limitations are understood not to have the effect of abrogating the right by circumscription.

Finally, you seem to be having a lot of fun representing what the NRA thinks and is willing to do. I am sure the NRA itself has quite a different view. You infer much about them from very little. I suggest you do a little more research on the NRA:

http://www.mynra.com/

Not silly in the least. Miller, and the subsequent Supreme Court decision in 1981 make it very clear.

The 2nd Amendment protects an absolute right to bear arms in the context of a well-regulated militia.

Common-law property rights include the right to own, sell, and use firearms. These rights, unlike the Second Amendment, are not absolute, as has been demonstrated in literally dozens of laws, regulations, and bans in several dozen states, upheld by state and federal courts. They are no more than the right to own, sell, and use a can-opener, and can be restricted. Having tried to argue otherwise in 1981 before the Supreme Court, the record is very clear that the NRA has NOT been willing to back another case before the Court in more than two decades. Don't look at what they SAY, look at what they DO. Very smart folks at the NRA, with very good lawyers. They know they'd lose.

Various state constitutions do provide for the use of arms in self-defense. They needed to do so because state legislators had a keen understanding that the 2nd Amendment did NOT enunciate such a right, and that under common law, the right could be circumscribed (as it has been.)

I'm surprised at you that you should consider such clear and easily understood distinctions to be "silly". You're entitled. The courts apparently don't.

100% true. Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction. The Miller Court implicitly endorsed an individual rights view by refusing to adopt the collective rights view offered by the Government in its brief to the Supreme Court.

Heck, Miller was only there because he actually WON in the lower court when they threw out his indictment for NFA violation. When his case was argued before the Supremes, the government was the only party there! In their decision the court even said that in the absence of any arguments contrary to the government's...duh. Miller had already won on 2nd Amendment grounds in a lower court, but nobody argued for Miller this time. heck, it might as well been a Russian court. Well, that's a bit strong since they also refused to adopt the government's position that the 2nd was not an individual right.

Since this is really the only decision on the 2nd Amendment in the last 100 years a test case needs to happen. But I believe both sides are afraid of the possible outcomes.

That would be keep (own) and bear arms. Do try to quote the amendment under discussion correctly here. Also, "A well-regulated militia being necessary to the security of a free state" is not a limiting modifier nor has it been ruled as such by any court.

Again, the right to own arms is protected on the federal level by the Second Amendment. The use of such arms is simply not addressed on the federal level (as long as they are not used to commit a crime) and the sale or transfer of arms is not even under discussion here. State laws are a different matter. The current state of Constitutional Law seems to recognize the power of local jurisdictions to enact their own restrictions.

Shantinik, I will repeat - you are totally, utterly, wrong. You have a complete misunderstanding of what the Constitution says.

Quote:

"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
(Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who is able may have a gun."
(Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)

"The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
(James Madison, author of the Bill of Rights, in his Federalist Paper No. 46.)

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms,"
Samuel Adams

Quoting from the link I provide below, which is The Right to Keep and Bear Arms report of the
subcomittee of the United States Senate. ninety-seventh Congress:

"They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. These commentators contend instead that the amendment's preamble regarding the necessity of a "well regulated militia . . . to a free state" means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms, and that the Congress has established the present National Guard under its own power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia."

Another quote from it:
"That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for the organizing, arming and disciplining the Militia". 65 This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a).

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

Now, read the whole thing. You'll learn something. And not a single word was said about can openers.


The right of the PEOPLE to bear arms shall not be infringed

you are more American than we are Larry.

No more than me. I was born in Hammond, Indiana!