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Edited by Mrph1 on Nov 30th 2023 at 11:03:59 AM
It can be a barrier, depending on how the courts interpret it. That's one of the key problems: whenever we think we've won a legislative or regulatory victory, it can be snatched away by the first judge who gets political contributions from the NRA.
"It's Occam's Shuriken! If the answer is elusive, never rule out ninjas!"I was more referring to the “shall not be infringed” crowd who believe the existence of an amendment means any regulation is unconstitutional. Typically those same people will be surprised when you tell them there are limits to free speech.
It’s only as much a barrier as there is political will to keep it one.
They should have sent a poet.![]()
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It can be a barrier. The 2nd Amendment permits the presupposition of the right to own a firearm, unless evidence is presented to abrogate a portion of that right, and the threshold for what justifies abrogation is intentionally made very high. Without it, there is no presupposition. The Ninth Amendment explicitly allows for rights not enumerated within the Constitution, and an argument for gun ownership could be made through it, but it would be a less ironclad, and probably more contextual liberty. There would be far less legal justification for the pro-gun position without the Second Amendment.
edited 27th Mar '18 6:34:04 AM by CrimsonZephyr
"For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die."John Paul Stevens: Repeal the Second Amendment
That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.
Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “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.” Today that concern is a relic of the 18th century.
For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.”
During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters.
That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.
That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.
Much like abortion and welfare weren't on the public radar prior to the mid-20th century, gun control is yet another pivot issue that has been manufactured by the right-wing propaganda machine in an attempt to isolate their base.
edited 27th Mar '18 7:00:43 AM by Fighteer
"It's Occam's Shuriken! If the answer is elusive, never rule out ninjas!"And as we keep coming back to - the establishment of a well regulated militia. Not many of those knocking about that don't immediately attract the attention of conspiracy theories or prepper fads.
Imagine if legislation was enacted in the spirit of the second amendment - in order to MAINTAIN a militia, all gun owners had to attend mandatory inspections of their weapons, as well as prove membership and training in an active militia. But only if owning a weapon considered a "military" equivalent, perhaps - so any AR variant, certain "hunting" rifles or any form of hand gun / shotgun. I have no idea how you "hunt" with a Glock anyway...
Embracing the full amendment, allowing sale of guns, but with the expectation that it's used in the correct spirit of the law. Hell, the militias can be private, but would be expected to maintain a record and track of weapons, run training, be a force in their communities....
There is a certain truth to the idea that private militias were intended to function as a check against the power of the federal government — some of the Founders envisioned a constant armed tension between local and federal powers so that the rights of the citizens couldn't be trampled by some dictatorial would-be king.
There are several things wrong with this, of course. One is that George Washington incontrovertibly established the principle of federal supremacy in the Whiskey Rebellion. Another is that the concept of representative government proved itself to be functional and not despotic, so the idea of armed uprising against it stopped being relevant.
The Civil War, if anything, was a perfect example of how states' rights can act against the common interest, and in any event the war was fought by two governmental powers, not by a bunch of scrappy militiamen resisting the tyrannical Feds.
Finally, the United States has, for at least the last century, had a sufficiently strong standing army that no civilian uprising could feasibly succeed without first co-opting said military.
Sadly, a lot of people buy into the "Ah've got mah guns to kill th' ebil Feds" mentality, which the right-wing infosphere feeds shamelessly.
It's worth noting that any serious uprising against the federal government in this day and age would probably be conducted by state-level National Guard units, which are most definitely not "private militias", but rather reserve military forces. They'd possibly be aided by defecting national military units, although that's kind of hard to envision to any serious degree. The number of things that would have to go wrong simultaneously for this to happen is hard to imagine.
edited 27th Mar '18 8:36:42 AM by Fighteer
"It's Occam's Shuriken! If the answer is elusive, never rule out ninjas!"![]()
Technically, the Civil War was a bunch of scrappy militia's fighting on behalf of the two Governments, as neither nation had standing armies at the time (and didn't call them, as the North treated the war as a simple rebellion, and the South couldn't actively raise one due to how it's government was structured).
edited 27th Mar '18 8:30:29 AM by DingoWalley1
While the distinction between "militia" and "standing army" may have been somewhat fuzzy at the time, that's most definitely no longer the case.
edited 27th Mar '18 8:35:05 AM by Fighteer
"It's Occam's Shuriken! If the answer is elusive, never rule out ninjas!"You can certainly argue that the militia concept is outdated now that we have standing armies and the National Guard and the like, but I don't really know how you can read the Second Amendment as not referring to private use of weaponry.
And this cognitive dissonance is where the "the entire military will mutiny to support us" spiel comes from.
"Yup. That tasted purple."Scalia interpreted the “bear arms” part of the second amendment literally, saying that any weapon capable of being borne by a person is legal. Armor piercing rounds are illegal though, and the fact that regulation exists at all should show that the 2nd amendment isn’t a barrier to further regulation.
They should have sent a poet.@NativeJovian: Pretty sure it was litigated that way by pro-gun judges under the pay of the NRA, as pointed out by the one ex-Supreme Court judge, and it was argued that way only relatively recently. Besides, the exact line is "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." Now, there's some 18th century grammar at work here, so let's rearrange it after breaking it down a bit and figuring out what to do with all the commas.
"A well regulated Militia, being necessary to the security of a free State," => "Since a well regulated Militia is necessary to the security of a free state," This is just patently untrue now.
"the right of the people to keep and bear Arms, shall not be infringed." => "the right of the people to keep and bear Arms shall not be infringed." Honestly I don't know why that extra comma was necessary here.
Now what to do with that final comma in the middle, because that is the most important comma.
"Since a well regulated Militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed."
Which means, and has meant for the better part of a century since 1939 in US vs. Miller: "The right of the people to keep and bear Arms shall not be infringed as long as it pertains to the necessity of a well regulated Militia."
edited 27th Mar '18 8:51:18 AM by danime91
Using that analogy would also mean that the first amendment only applies to printed press, not radio, TV and internet because at that time no one could foresee the instant diffusion of information.
edited 27th Mar '18 8:52:30 AM by AngelusNox
Inter arma enim silent leges
Exactly, just because something is enumerated as a right doesn’t mean it can’t be regulated.
I’d argue that regulation on automatic weapons is also conclusive proof that gun control works. Since they were made illegal in the 30s barely a dozen crimes have been committed with them. Taking them off the street essentially eliminated their usage in crime.
They should have sent a poet.Obviously, technology and society march on. The issue isn't the kind or lethality of weapon; that's a red herring. The issue is whether private ownership of firearms is in any way necessary in modern times, versus what people thought in the 18th century. I mean, I've never owned a gun, and I'm somehow still alive and in possession of my freedoms. Contrary to what some might believe, I don't see those freedoms being upheld by rednecks with AR-15s: quite the opposite, in fact. They're representative of one of the biggest threats to our democracy.
edited 27th Mar '18 8:57:34 AM by Fighteer
"It's Occam's Shuriken! If the answer is elusive, never rule out ninjas!"
The 2th A is pretty much basic property rights, but regarding firearms. There shouldn't be the need to repeal it, but there is absolutely nothing saying it can't be regulated.
Repealing one of the first constitutional amendments opens a can of worms by itself, if you can remove one, there is nothing preventing removing the 4th A and the 5th A, despise how attractive doing that was to fight crime and terrorism.
edited 27th Mar '18 8:59:12 AM by AngelusNox
Inter arma enim silent leges

I don’t think repealing the 2nd amendment is a realistic gun control agenda. As we’ve seen with other topics the simple existence of the amendment isn’t a barrier to regulation, as much as people might claim it is.
They should have sent a poet.