Interpreting gun rights at the Supreme Court

"Or is the Constitution a “living” document, whose meaning changes with evolving societal standards?"

This is the way it MUST be approached. Times change, the founders knew this, and various amendments have been added over the course of our countries history.

We don't speak like Shakespeare anymore, do we?

So a modern updating of the language should be considered to make it more clear.

This is not a vote for or against gun-control, just for more clarity.

Thanks for a well written and non-sound bite article. All I ever see (from both sides) is that this is a done issue and no gray. Obviously there are questions on both sides.

Now, my feeling is that the SC will see that the right to bear arms is a personal right (and not require militia status). That being said, they will also hold that restrictions that do not pose an "undo burden" (to quote O'Connor in the abortion debate) are reasonable.

A very simple way to answer this questions is to ask yourself this,...Were citizens that were not part of a well regulated malitia required to turn in their guns when the amendment was written?

No matter how one comes down on the 2nd amendment, I think pretty much all of us can agree that the Founders could have made their intent a lot more clear.

The founders didn't limit themselves to only writing the Constitution. They tried to be as clear as possible. Freedom from government is what the amendments were all about.

Lets see, we need to take away all guns because.. of the crime rate in a certain number of large cities hmmm, I submit to you to come up with your own innumerable conclusions to that rationale. How bout' we need our guns ot protect ourselves from the thugs that are screwing it up in the first place. oh, I forgot, we have nearly a police state to protect us from them. WAKE UP AMERICA!!!!!!!!!

I'm guessing that they will rule in favor of individual hand gun ownership.
The question is; if they rule in favor of individual hand gun ownership, what about individual machine gun ownership? What about grenade launchers? What about explosive vests? Are they arms? I mean if I walk around with an explosive vest strapped on, would I be considered to be bearing arms? Would it be legal?

A populace that cannot protect itself is nothing more than a slave nation. Take Mexico, Cold War Soviet Union and etc. If a populace has no weapons then they cannot either rise up against a puritanical government nor protect themselves against violence or invasion. In an unarmed country the government has nothing to fear from the people as they cannot protect themselves nor stand up for their rights.

Robert Rowley et al-

Armed only with handguns, rifles and automatic weapons how well could you defend yourself against a government armed with tanks, aircraft, missiles and the whole array of modern weaponry?

If you are going to claim that the purpose of individual weapon ownership is to resist the government, then you implicitly claim the right to individually own the weapons that could be effective in actually fighting the modern US Army. This would include anti-air and anti-tank missiles, RPG's, landmines, tanks, etc.

Your rifle and your 22 handgun aren't going to cut it.

Robert Rowley;
How do you feel about my owning explosives? Rockets?
We know, from Iraq, that explosives are much more useful in defending ourselves against invasion than hand guns.

It's obvious that some of the the people posting on here can't understand the 2nd ammendment, perhaps they are more expert on the 1st ammendment, or..rather they just take and pick the parts they tend to agree with. Good article, I am awaiting for a full blown gun store to open up in Chicago so I can spend my hard earned money.

Why do Liberals jump from the right to bear arms, to suddenly people who wan't their 2nd ammendment wanting rockets, bombs, bomb vests, tanks and jets? are these people mad? or crazy?

A populace that cannot protect itself is nothing more than a slave nation. Take Mexico, Cold War Soviet Union and etc.

Posted by: Robert Rowley | November 21, 2007 3:23 PM

A government that does not have a monopoly on violence is....well...it's a lot like Iraq. Do you want to move to the NRA paradise aka Iraq?

OK, so you have the right to own a gun. So, there's nothing that could stop us from heavily regulating the gun manufacturers. Want a gun? Sure, but it will cost you $10K and require you to carry special insurance. And the gun company will be held liable for ANYTHING you do with that gun that isn't legal. End of story.

What other reason than to include the "Right To Keep And Bear Arms" in the Constitution was there but to allow the People the right to take back their government should it become too despotic, too tyrannical? What other reason, save to defend one's own liberty? Wasn't liberty the reason behind the Constitution in the first place? That the government now has greater firepower than the citizenry is exactly what the founding fathers initially feared. That aside, for the government to now state (if it indeed does) that citizens no longer have the right to keep and bear any firearms, would be to fully proclaim an ultimate power over the citizenry. And that would be a despotic government, a tyrannical government.

The Right to Bear Arms, which IS in the Constitution, really isn't a constitutional right at all.

Meanwhile, the "right to privacy", and the "right to an abortion", neither of which are in the Constitution, ARE nonetheless constitutional rights.

Hope this makes everything clear....

"..."Or is the Constitution a “living” document..."
"This is the way it MUST be approached. Times change, the founders knew this, and various amendments have been added over the course of our countries history.

So a modern updating of the language should be considered to make it more clear."

Wow, what a fallacious and ignorant position to take. Sir, do you realize that an amendment that changes called amendments to the constitution are done through congress and require the states to ratify the changes? So it takes a lot of people to change the constitution, which is a safety measure to keep the power in the hands of many and not just a few men. Compare this standard to the supreme court making a ruling based on reinterpretation- with no debate or say from "We the people". Very different and very dangerous.

Sir please consider the difference as well between updating the language of the constitution and KEEPING the framers initial intentions versus intentionally twisting the words into something to fit into "modern" idea of what will work.

This would be like a poorly translated foreign film that looses all meaning.

Sir, it is uninformed dolts like you who can't see past "good intentions" who give the reins of power away, putting us all at the mercy of the leisure class and political elite.

This is exactly why the framers made a constitution in the first place. So why don't you go pledge your loyalty to King George while you're at it.

*And he says, "Why not? He doesn't seem like such a bad guy."*

The men who wrote the 2nd Amendment meant what they said, exactly as they said it.

* * * *

Posted by: jethro | November 21, 2007 4:42 PM

Your reasoning is slipping, if it was ever standing. The Government has a monopoly on violence because the law gives citizens only a limited right to use violence against another person. It’s called self-defense, or the defense of a third person.

Unlike the situation in Iraq, we do not allow people to murder each other at will, much less commit mass murder by blowing up open markets, because of the limits of the law. And this is true regardless of whether the weapon of choice is a Colt .45 or a baseball bat. Thus, your comparison of a society in which people have the right to keep and bear arms (e.g. an “N.R.A. paradise”) to the situation in Iraq is hysterical nonsense. There is no law in Iraq.

I might also add that there are some places in this country, perhaps very near to where you live, where life is not much safer than in Iraq even with all of those beloved gun-control measures. And, do you know why?

Because those gun control measures don’t work.

That’s right, they don’t. Despite all of those measures being on the books for decades now, the number of dead bodies with bullet holes keeps mounting. This is because people intent on breaking the law don’t give a rat’s ass about gun control, or the laws against drug possession or distribution, or gambling, etc. etc. etc. They are going to have their way and use whatever means they choose to do so.

The only difference, of course, is that all those law abiding citizens who must live in those neighborhoods are at the mercy of criminals precisely because they cannot lawfully possess, or learn to safely operate and keep a firearm. Much of a criminal’s boldness comes from the defenselessness of the people. The bad guys might have a few second thoughts about using a firearm to commit all the murders they do – especially in cities like Chicago – if they knew the neighbors might shoot back.

I’m damn glad I live in a town that doesn’t have such ridiculously stupid laws.

To me it is talking about 2 seperate things. It is talking about a miltia and the peoples right to bear arms. Bacj in those times everyone owned a gun of some sort.

"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 seems pretty cut-and-dried to me. The right to bear arms wasn't given to the militia, but to the people which formed them. The Founders, realizing the evils that a standing army might inflict on the general populace should a tyrant usurp the laws, gave to the people the right to defend--by armed conflict if need be--their liberties. This was seen back then as a necessary check on the power of the government. It is no less so today.

Especially today.

And to those people who say that the 2nd Amendment is rendered moot due the evolution of modern weapondry, I ask you: Why is every single Marine first and foremost a basic rifleman?

Moreover, it is the duty of a state militia--you know, the National Guard--in concert with other states' National Guards, to defend our liberties against a despotic leader. They have tanks and planes and other neat stuff, too.

Meanwhile, the "right to privacy", and the "right to an abortion", neither of which are in the Constitution, ARE nonetheless constitutional rights.

Hope this makes everything clear....

Posted by: Bruce | November 21, 2007 6:59 PM

The right to privacy NOT in the Constitution? Obviously you haven't read the document. Let me extract the 4th Amendment for you:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

As far as the "right to an abortion", I concur, and it should be up to each individual state to address that matter; let the people decide.

Dan M:

I understand what you are saying about the Fourth Amendment, but I think Bruce was referring to the "right to privacy" cases like Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstad v. Baird, 405 US 438 (1972), and Roe v. Wade, 410 U.S. 113 (1973), which were based on the “penumbras” (e.g. extrapolations) of multiple amendments, rather than on the text of any single amendment. The Court in Roe said “[t]he Constitution does not explicitly mention any right of privacy,” but that it had nevertheless “recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” (Roe, at 152.)

It is also obvious that the Fourth Amendment is not co-extensive with the “zones of privacy” referred to in Roe because, while the Fourth Amendment protects people from unreasonable governmental intrusions into areas in which they manifest an expectation of privacy (e.g. homes, persons, property and private communications), it has never been held to protect their personal “choices” to use contraceptives or have an abortion, as was held in Griswold and Roe. Thus, a reasonable person, not acquainted with these fine distinctions, could believe the “right to privacy” spoken of in these cases is not one expressed in the text of the Constitution – just like Bruce did.

“ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ”

The 9th Amendment. "Conservatives" such as Bruce's single least favorite Amendment.

You see, just because "the right to privacy" is not explicitly spelled out as such, its purpose is implied in the 4th Amendment, and it would seem obvious (to me, at least) that one cannot have a "free" society without a basic right to privacy.

As for abortion, as far as I'm concerned let Roe v Wade be overturned, and throw it back to the states. It would be the best thing possible for Democrats. Let the red states ban abortions and fall even farther behind in health care and overall quality of life. They're already at the bottom of every major indicator anyway.

“A well educated Electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.”

Would this mean only University Proffessors and the College Educated could freely keep and read books?

Anyone can find the answer to the framers insight quite simply by actually reading the 2nd Amendment as it was ratified by the states:

“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.”

You can twist it anyway your agenda desires, but that is the original document. There are only two commas in the original ratified document. Therefore the only legal version, as defined by the Constitution as being ratified by 3/4ths of the states, is the two comma amendment.

Congressman Ron Paul on the 2nd amendment.

http://www.youtube.com/watch?v=xdxTg9x3Mbg

James Madison 1809/Ron Paul 2009

Don't confuse the Bill of Rights with the Constitution. The Constitution represents the government, what they may do and how. The Bill of Rights represents the citizens. All ten of the original articles clearly are designed to offer the citizen protection from thier own government. What makes the 2nd any different?

A "living document..."
We either have civil rights, or we don't. If the Consitution can be changed, our rights depend upon the whims of our legislators.
Use your head.

DD (quote) "OK, so you have the right to own a gun. So, there's nothing that could stop us from heavily regulating the gun manufacturers. Want a gun? Sure, but it will cost you $10K and require you to carry special insurance. And the gun company will be held liable for ANYTHING you do with that gun that isn't legal."

Right. Sound a lot like how automobiles are dealt with now. Know of any limitations to auto ownership or use on the books? Ever hear of a car company being held responsible for what some hapless - or suicidal - driver commits on innocent bystanders? That 10K for your car just became 100K the auto manufacturers will charge you so they can pay for lawyers to fight their battles.

After the dust has settled and the decision made, one thing will remain the same. The criminals will still have guns. The interpretation of the law will only affect the law abiding citizen.

It would seem to me that all of this will be settled next spring when the SCOTUS will argue and rule on this case. For the 'living constitution' crowd, you error is clear, there is a way to modify the constitution and that is called a constitutional convention, an instrument of our great experiment designed to do just that. Don't like the second amendment? Then change it or shut up. The Constitution is frequently regarded as a document that GIVES rights to the people, and that is inverse. It LIMITS government by guaranteeing pre-existing rights, one needs look no further than at the well documented debate and correspondence of the framers to see that. Now that is not an easy task, one must actually read and form their own opinion, something sorely lacking in our attention deficit 10 minute news consumption culture of today. Instead of ALLOWING some self-absorbed professor to tell you how to think, please consider the superior approach to thinking for yourself, doing your own research and forming your own opinions. Many many Americans died protecting your right to do that, use it.
The age-old (i say that relatively) ploy of redifining the meaning of a statement to lend it to an alternative conclusion is as old as politics itself. The politics of our modern age spare no expense to do this, and we should be ashamed that we submit to such a tactic. The second amendment reads with difficulty, but on close inspection no collectivist interpretation can withstand it. It's important, do the homework and you will see for yourself.

As for the previous statement of "why not a rocket launcher or grenades" hysterics, there are many many laws which ALREADY control these items and their uses, a moot point actually.

To the position that an armed citizenry can not stand up to an armed force of the type and scope we have, humbug. 499,000 armed active duty soldiers, 700,000 reserves and National Guard, but 86 MILLION, yes, MILLION private gun owners, well now I think you see my point. Private gun ownership is not just a right imho, it is a duty, it is not a duty that all will undertake, some simply do not have the stomach for it. It was SO important that it received it's own amendment, something that is virtually non-existant in any other government.

Constitutional Constructionists have long rested on the belief that the second amendment is a rock solid, self explanitory definition of rights. Too long. The idealistic camp who wants a a happy frolicking public just can not imagine having to ever be accountable so the easy target is to blame the tool. But these people know what they are saying, they really don't believe it, they just want the guns out of the hands of the 'common citizen' They want the 'common citizen' to give up their autonomy and self reliance and depend addictively to the alms from the state, surely every solcialist's dream come true. There are alot of people that are indoctrinated into believing in the entitlement model of society, and it is poisonous to the human spirit.

There is no greater personal responsibility than the responsibility to protect yourself, and do so violently if necessary.

This ruling next year will be one small wake up call for all the people who have really been hoodwinked into believing this great country is some sort of entitlement machine. This country is based on the ABILITY and RIGHT to ATTEMPT to excel due to the personal achievement, not the guarantee of endless entitlements so your housing, cable TV and food are free.

Rant complete, have a groovy day,
Silence Dogood 2007

1.) The constitution is a "Living Breathing Document?" Then so is my poker rulebook. Anybody want to come to my house for poker tonight?

2.) You can not protect ypurself frpom a tyrannical government that posesses tanks and aircraft with small arms and grenades? Has anybody out there ever heard of the Vietcong?

How soon they forget. The Second Amendment means THE PEOPLE. Gun control is the little evil taht will allow the Big Evil to occur. Hey Liberals, the road to hell is paved with good intentions, and you all are a very good road crew.

"When the government fears the people there is liberty, when the people fear the government there is tyranny". Thomas Jefferson

Official doctrine from the old Soviet Union stated they would never attack US soil because they would be fighting a well-trained populace. Currently the majority of states within the union allow its citizens to carry concealed weapons and the places where gun control measures are the least restrictive have the least amount of crime. Gun control is not about keeping people safe but it is about control.

I am an American of Greek Descent my family comes from an area of Greece where conquering armies let us be autonomous because of the fierceness of the people, it is in an area where the Spartan city state drew its citizen soldiers. It is where socialist men in the Greek civil war (1946) who wanted what my Grandparents had, whom I never had the opportunity to meet, killed them. When good men do nothing evil fills the void.

I am an American and I refuse to be subjugated by other men, the Second Amendment IS the right that protects all others.

Liberal Socialists want my Second Amendment, come and get it.

Look at it this way EVERY other right garanteed by the constitution is an individual right..free speach,right to assemble,religion...etc..these are all individual rights....so WHY would the 2nd be any differant.

Let us not forget that the use of the term Militia was different back in the 1770's. Militias were groups of rag-tag civilians that just happened to have guns. The term "well regulated militia" very well applied to militia ordinances that were in effect in early america.

Prior to the war of 1812, it was commonly believed that civilian soldiers in organized militia would best defend the union. There were actually laws in place in certain municipalities that would require citizens to take part in training excercises with whatever weapons they had, which included household items like umbrellas for the lesser well to do and lesser motivated of militia members.

In modern terminology, we would likely label a revolutionary militia as a Para-Military group, as they were not actually employed by the government.

After the British invasion in 1812 it was determined that relying solely on civilian militia to defend the populous was not an effective strategy to deal with unexpected attacks. America's infatuation with civilian militia quickly fizzled out and national defense by the military soon became the norm.

Currently, civilian militias are viewed as extremist fringe groups by the public at large and their members are labeled as eccentrics.

As far as gun control is concerned, I guess it would be a resonable idea if it actually worked. Ironically, I have noticed that municipalities with the most gun control typically have the most problems with gun crime.

Personally, I'm not so sure that letting the government own ALL the guns is the greatest of ideas. After all, if total government control is supposed to harbor safety, then why are prisons so dangerous?

I just reviewed these notes and find no one offering that all "Rights" are granted by G_d and not the government.

Robert Rowley:

If one out of every 300 gun owners suddenly felt oppressed sufficiently to rise up, it would equate to about 30 infantry divisions.
Did you sleep through Viet Nam?, where poorly armed peasants defeated the American Empire, despite our Air Force, Artillery Armor, and overwhelming might, or were you not yet born and failed history?

Correct me if I am wrong, but were not the founding fathers of our fledgling assembly of divisive colonies the underarmed, underdogs who fought the mightiest empire on Earth until liberty prevailed?

The militia consists of the unorganized and the organized militia.

The unorganized militia consists of all free person's capable of bearing arms, and their right to keep and bear arms is as protected as that of the militia in Actual Service of the United states.