Rants, Recipes and Ramblings

2nd Amendment debate

Some comments I have posted…

Question for the anti-gun rights folks. If you really believe that the 2nd Amendment refers to the right of a Militia (and not people) to own guns please explain to me why the need for an Amendment to ensure the ability of the Executive to exercise it’s already enumerated Article 2 Section 2 powers?

 

Another thing for those on the anti-gun side wondering if the 2nd Amendment covers guns like an AR-15 or AK-47. Read the Supreme Court decision in Miller when they decided that a sawed off shotgun was not covered.

The ruling did not actively address the individual right to own a gun (that was covered later in Heller) merely considered the “Militia” aspect of the Amendment.

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

1. The Individual citizen was expected to bring his own gun to the muster if called
2. It was to be a kind in common use for that purpose. Note: the civilian version of the AR-15 and AK-47 “look” like the type used by the Military to use for defense but don’t function like them.
3. The AR-15 and AK-47 variants are a common type of rife in use

So… If you want to take this to the Supreme Court the precedence argument could be made that Miller allows for full auto weapons like that used by the Military. You sure you want to have that argument?

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

 

The purpose of the words “A well Regulated Militia” from the Heller Decision

http://www.law.cornell.edu/supct/html/07-290.ZO.html

“Relationship between Prefatory Clause and Operative Clause reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.