The Second Amendment: Intent

[Grace]

Interesting discussion. As horrific and heart rending these shootings are, the worst school massacre was done by dynamite in 1927, Bath, Michigan.

https://en.wikipedia.org/wiki/Bath_School_disaster

[Robert]

No. I actually think the intent of the second amendment was communal defense (militias) not personal defense with a firearm. That doesn’t mean I don’t think people should have the right to defend themselves. That is a separate issue. And I certainly don’t think the intent of the second amendment was utterly unregulated manufacturing, sale, and use of firearms without limits.

You disagree with the founders and about every Supreme Court since the start of the country.

[Robert]

Interesting discussion. As horrific and heart rending these shootings are, the worst school massacre was done by dynamite in 1927, Bath, Michigan.

https://en.wikipedia.org/wiki/Bath_School_disaster

Not counting the millions killed by Stalin, Lenin, and Mao.

[Ken]

No. I actually think the intent of the second amendment was communal defense (militias) not personal defense with a firearm. That doesn’t mean I don’t think people should have the right to defend themselves. That is a separate issue. And I certainly don’t think the intent of the second amendment was utterly unregulated manufacturing, sale, and use of firearms without limits.

You disagree with the founders and about every Supreme Court since the start of the country.

The Supreme Court used to be much more approving of all manner of state firearms regulation from assault weapons bans to restrictions on sale and use. It is only in recent years that they have taken to striking down state restrictions on the sale and use of firearms. United States v. Miller in 1939 was the case in which the Supreme Court upheld the National Firearms Act which banned or heavily regulated sawed off shotguns and machine guns, regulated the interstate transfer of firearms, required registration, and so forth. I doubt today’s court would come to the same conclusion.

For the next 50 years the court didn’t even take any second amendment challenges to state restrictions on firearms. Even when states were passing restrictions right and left. For example, the Mulford Act signed hurriedly into law by Governor Reagan in California in 1967 after Black Panthers started openly carrying firearms to cite one of may: https://en.wikipedia.org/wiki/Mulford_Act

[Robert]

No. I actually think the intent of the second amendment was communal defense (militias) not personal defense with a firearm.

The Supreme Court used to be much more approving of all manner of state firearms regulation from assault weapons bans to restrictions on sale and use.

Your first statement is not in line with 200+ years of Supreme Court and Legislative rule. Your second statement contradicts your first. Please take time to be consistent. It makes it discussion hard when you say one thing, then bend it to sound as it meant something else when challenged.

[Ken]

No. I actually think the intent of the second amendment was communal defense (militias) not personal defense with a firearm.

The Supreme Court used to be much more approving of all manner of state firearms regulation from assault weapons bans to restrictions on sale and use.

Your first statement is not in line with 200+ years of Supreme Court and Legislative rule. Your second statement contradicts your first. Please take time to be consistent. It makes it discussion hard when you say one thing, then bend it to sound as it meant something else when challenged.

Those two statements are not inconsistent. Statutes written for one purpose in one century are frequently interpreted differently or applied in more expansive ways in later centuries.

[Robert]

Those two statements are not inconsistent.

If the 2nd Amendment is not for personal defense, then why would there be regulations for sale and use?

It is okay of you want more control of the government on guns. It is also okay that I do not want more government control. The Assault Weapons ban from 1994-2004, or there abouts, has been found to have little impact on mass shootings. This is what the research shows.

Gun regulations only affect law abiding people. It is already illegal to kill others unless in self defense. Making guns harder to get will only make the person wanting to harm others find illegal or alternative ways. Think of the leftest that plowed through people with a car a while back.

Having a lot of guns in society does mean some will be used for wrong reasons. I think it is not to the level that counteracts the positive. Only God can remove all the violence and killing on this world. Overall, governments have misused and abused it's citizenry and the odds are much higher that a government will harm its citizens more than guns in bad guys hands do.

It is sad that this happened in a school, but just as many died in Chicago over the weekend in a city that has the tightest gun laws around. The laws and regulations are not making its citizenry safe. Children are dying in Chicago. No one is screaming about that. Why not? Politics.

[JimFoxvog]

According to Thom Hartmann, a major purpose of the second amendment was to preserve slave patrols to be able to prevent enslaved people from effectively rebelling.

The Second Amendment Was Ratified to Preserve Slavery

The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the framers knew the difference — see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote. Founders Patrick Henry, George Mason and James Madison were totally clear on that… and we all should be too.
...
https://truthout.org/articles/the-secon ... e-slavery/

[temporal1]

The most effective prevention of public school shootings was closing public schools (for the pandemic).

[Ken]

Those two statements are not inconsistent.

If the 2nd Amendment is not for personal defense, then why would there be regulations for sale and use?

It is okay of you want more control of the government on guns. It is also okay that I do not want more government control. The Assault Weapons ban from 1994-2004, or there abouts, has been found to have little impact on mass shootings. This is what the research shows.

Gun regulations only affect law abiding people. It is already illegal to kill others unless in self defense. Making guns harder to get will only make the person wanting to harm others find illegal or alternative ways. Think of the leftest that plowed through people with a car a while back.

Having a lot of guns in society does mean some will be used for wrong reasons. I think it is not to the level that counteracts the positive. Only God can remove all the violence and killing on this world. Overall, governments have misused and abused it's citizenry and the odds are much higher that a government will harm its citizens more than guns in bad guys hands do.

It is sad that this happened in a school, but just as many died in Chicago over the weekend in a city that has the tightest gun laws around. The laws and regulations are not making its citizenry safe. Children are dying in Chicago. No one is screaming about that. Why not? Politics.

Here is what I am saying.

I believe that the Second Amendment was primarily about the establishment of civilian militias as an alternative to a standing army. From the point of view of the framers, in their recent past from the 30 years war to the 18th century wars between England and France, standing armies were a tool of oppression and tyranny. And, of course the issue of southern militias and slave patrols that Jim highlights. There has been a lot of historical research on this topic and I think it largely backs up my position. But of course, history is also in the eye of the beholder.

By the 20th Century the notion of civilian militias was largely if not entirely obsolete. The last American war in which civilian or state militias played a major role was the War of 1812 and they were largely ineffectual. After the British defeated the Maryland and Virginia Militias at the Battle of Bladensburg President Madison commented "I could never have believed so great a difference existed between regular troops and a militia force, if I had not witnessed the scenes of this day".

In the 20th Century the meaning of the Second Amendment largely shifted away from the notion of regulated militias and towards the private ownership and use of firearms. Both in the general population and within the courts. In the 19th century when it was a largely rural country, the idea of firearm ownership was uncontroversial and unchallenged. But by the early 20th century with an urbanizing America and new weapons like machine guns becoming available, the government first started to regulate firearms in the 1930s. This was the era of Prohibition Gangsters waging wars on city streets and so the government began to tax and regulate firearms, especially sawed off shotguns and machine guns which were the weapons of choice of gangsters and the Court upheld the government's ability to regulate firearm sale, possession and use.

This was more or less the state of affairs for most of the rest of the 20th Century. States and cities passed all manner of firearm regulations including the very restrictive such as virtual prohibitions on handguns in cities like NY and DC. And the court was silent in its approval despite many court challenges. They chose to let all those laws stand.

It wasn't until quite recently that the Supreme Court with a new conservative majority began to actively roll back state and local firearms regulations, and usually with 5-4 votes. So it is only really quite recently that the court (or the conservative majority) evolved its thinking into the more second amendment individual absolutist thinking that pervades today. It is more or less like abortion. A different court could easily take things in a completely different direction.

The notion that constitutional rights evolve is completely uncontroversial. Take the 14th Amendment, which was passed in the context of abolishing slavery but has since come to be interpreted in all sorts of new ways from Miranda warnings to interracial and gay marriage. The interstate commerce clause has similarly been interpreted in all manner of new ways to authorize everything from social security to Medicare to worker safety regulations. Policies that were never thought of or intended when it was drafted in 1789.

So I think it is entirely consistent to believe as I do that the second amendment was drafted with one primary purpose in mind in the 18th century but has evolved to serve an entirely different purpose in the 21st century. Most of the constitution works that way.

And by the way. The Constitution is not the only law of the land. Even if the Constitution were silent about personal firearm ownership and use, states would be perfectly free to authorize the use of firearms and regulate them. Most criminal law is actually state law not Federal law. I personally have no objection to firearms and the right of people to own and use them. I just object to the idea that the Constitution prevents states or Congress from passing reasonable firearms regulations. Afterall, the second amendment contains the term "well regulated" right there with "right to bear arms"