Will the Second Amendment survive?

[icileparadise]

Happy Monkey, I see where your'e going, are you law schooled by any chance?

[icileparadise]

Let's do another analogy: the Army in Iraq was disbanded before the Allies got there, Are we therefore now fighting their militia?

[Happy Monkey]

Originally Posted by icileparadise

Happy Monkey, I see where your'e going, are you law schooled by any chance?

No. But, legally speaking, if they intended the only enforceable part of the second amendment to be the second half, they should have left the first half off and put their justifications into a separate document. None of the other amendments have introductions.

At the very least, the unique structure of the second amendment complicates an absolutist interpretation. Why have an explicit justification? Why, in that justification, further specify "well regulated" militias? The word "regulated" may have changed meanings slightly over he centuries, but I'd posit that whatever the meaning, it is there to differentiate between "a well regulated militia" and "a mob".

[jinx]

The Bill of Rights was a compromise between federalists and antifederalists... those who wanted no constitution, no strong central government. The federalists believed that in the constitution, the people "surrender nothing, and retain everything" (Hamilton), rendering a bill of rights unnecessary. The antifeds didn't believe that shit for one second, and because of them, many states refused the ratify the constitution as is, instead stipulating that certain natural individual rights be enumerated - the important 9th amendment covering those natural rights not enumerated.

The feds and antifeds also disagreed about whether there should be a well regulated militia, "under the regulation and at the disposal of" the federal government. Patrick Henry et al didn't like the idea... at all (fearing the president would use his powers like a king and turn his army against the citizens)- the compromise on this issue is the second amendment.

If you're (in general) arguing that the 2nd amendment somehow limits the right of an individual to bear arms, I'd love to see some citations. Specifically, which of our founders were making that argument?

[Radar]

Originally Posted by Happy Monkey

No. But, legally speaking, if they intended the only enforceable part of the second amendment to be the second half, they should have left the first half off and put their justifications into a separate document. None of the other amendments have introductions.

At the very least, the unique structure of the second amendment complicates an absolutist interpretation. Why have an explicit justification? Why, in that justification, further specify "well regulated" militias? The word "regulated" may have changed meanings slightly over he centuries, but I'd posit that whatever the meaning, it is there to differentiate between "a well regulated militia" and "a mob".

It says well-regulated militias are necessary for a free state to exist, and this is why THE PEOPLE (individuals) retain the right to keep and bear arms. This right isn't granted by government, it's a right we're born with that the Constitution protects. There is nothing "enforceable" about a militia. There is no requirement that those who keep and bear arms be members of a militia. The only enforceable part of that amendment is the part that says THE RIGHT OF THE PEOPLE (note: It doesn't say "the people who are members of militias" or "the militias") SHALL NOT BE INFRINGED

[Urbane Guerrilla]

Originally Posted by Happy Monkey

No. But, legally speaking, if they intended the only enforceable part of the second amendment to be the second half, they should have left the first half off and put their justifications into a separate document. None of the other amendments have introductions.

Though there is no reason to actually expect that idea to carry water, in the Constitution or out of it. The Constitution is not entirely nor purely a legalistic document; it is in the nature of setting up the provisions of the social compact as well as the lineaments of the government.

At the very least, the unique structure of the second amendment complicates an absolutist interpretation. Why have an explicit justification? Why, in that justification, further specify "well regulated" militias? The word "regulated" may have changed meanings slightly over he centuries, but I'd posit that whatever the meaning, it is there to differentiate between "a well regulated militia" and "a mob".

I would not read the clause as defying or complicating an "absolutist" interpretation at all. It is the consensus of Constitutional scholarship that the first clause of the sentence does not modify nor restrict the second clause. The sense of "well regulated" has been proven to have changed, also -- nowadays they would be termed "well trained," that is, skillful enough to be effective against an enemy force. Further, the explicit intent of the Militia Acts passed pursuant to this Amendment was to mandate the militia being every bit as well armed as the best national infantry and cavalry of the day. From this point of view, it is disturbing how comparatively less equipped we citizens, we Unorganized Militia as defined in USC Title 10, are in recent times. The Swiss show us that civilizations do not decay from exposure to selective-fire assault rifles with 200 rounds of ready ammunition in about every basement. Are the Swiss really so very different from us?

Your last point is your best; they weren't any happier about mobs then than they are now, as the developments of Shays' and the Whiskey Rebellions serve to illustrate. Put down with a bare minimum of casualties, too; maybe an officer's horse threw a shoe and some infantryman got a blistered heel. It was about like that.