That's a fairly strained interpretation, especially given that where the 2A sees a necessary pre-condition (well-regulated militia to the security of a free state) it expressly identifies it as such: a more reasonable interpretation would be that the 2A is based on the strongly implicit premise that right of the people to keep and bear arms is at least useful to a well-regulated militia, whereas a well-regulated militia is a necessary precondition for a secure, free state.
Let me quote from [0]: The [NRA under its new leadership] pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
Look, you're welcome to your opinion; I'm not expecting to change it. But you should recognize that the point is quite a bit more debatable than you make it out to be.
[0] http://www.newyorker.com/news/daily-comment/so-you-think-you...
[1] https://www.law.yale.edu/sites/default/files/documents/pdf/F... (the Reva Siegel article linked from [0]; that link is dead -- I think this is the intended article)
These articles are examples of what I call "sneaking repeal under the wire". Just because an article comes from a scholarly source doesn't mean it stands up to scrutiny: Michael Bellesiles landed himself in hot water attempting to argue this very issue, that the right to personal arms is a recent invention. The first tell I found in the sources you cited was when Toobin called the amendment text "ungrammatical"; it's perfectly grammatical, just not rendered in modern style.
A more modern restatement of the amendment would be: "Since a well-trained militia is necessary to the security of a free state, the right of the people to own and carry weapons shall not be infringed." The thinking of the time -- and this is all in the freakin' Wikipedia article on the Second Amendment should you care to look -- was that the right to self-defense and to defense against tyranny were of paramount importance -- thinking that predates the Constitution and has its roots in English law. To raise a defense force from among the people it was thought necessary to protect their right to own, train with, and carry weapons.
Now you may say that this right is trumped by others' right to live peaceably without fear of being shot. I won't disagree. But what you should be agitating for is repeal of the second amendment, whose language is very plain once you parse it; not for the courts to obfuscate and reinterpret the meaning. That way does lie tyranny, for the next step is for the courts to interpret away your right to not be searched without a warrant, your right not to be punished for a crime without due process, etc. Because hey, the Constitution is a living document; that means its meaning in times of old has nothing to do with today.
(My belief is that the Constitution was intended as a living document and that's why it has a well specified amendment process of which we should avail ourselves.)
> Now you may say that this right is trumped by others' right to live peaceably without fear of being shot. I won't disagree.
Okay -- we agree on something :-)
> But what you should be agitating for is repeal of the second amendment
This doesn't follow. We all know about restrictions on speech that are seen as legitimate -- yelling "fire!" in a crowded theater, etc.; the examples are familiar -- yet the arguments for these restrictions are not taken as arguments for repealing the First Amendment altogether.
I certainly think that my right to live peaceably, as you say, without fear of being shot, is worthy of some protection and needs to be balanced against gun ownership rights.
I also wonder how well even armed citizens can defend themselves against a tyrannical government in this era of militarized police, modern weapons, and SWAT teams. 240 years ago, the arms technology race had only barely started; now it is in full swing. We know how arms races end: the side with the most money wins. Even if the Second Amendment came to be read to permit citizens to own tanks, drones, etc., people can't afford them.
Personally I think the right to communicate with my fellow citizens unmonitored is more important, and in the end more likely to be decisive.
[0] https://www.brennancenter.org/analysis/how-nra-rewrote-secon...
Citizens have proven very capable of defending themselves in Iraq, Ukraine, Syria.
It's true that a government willing to firebomb entire cities and murder literally everyone could overcome that resistance. However, in the modern era a government that did that would quickly see the entire world turning against them.
It's also worth keeping in mind that even large, powerful, and well-armed militaries are only a fraction of the populace. In the US, something like 1/100 people are in the military. So if the US military turned against the population, and the population resisted, they'd have to fight a force that's potentially 100 times their number. Unless they were willing to firebomb their own cities and murder innocent civilians (as opposed to guerrilla fighters), they'd quickly be overcome.
Wrong. All 9 Supremes interpreted it as an individual right, they could hardly do else so given the written history of all this and the plain language of the Bill of Rights (which amendments, after all, confer a collective vs. individual right?). What they split 5-4 on what did that really mean anything in practice, or, ultimately, could D.C. freeze its registration, and require to you keep your guns unloaded and disassembled until an intruder entered the room you were in.
A set of laws I'll note were often nullified by sympathetic juries. Since Heller and McDonald, a majority of the court clearly holds that you only have a right to keep and bear arms in your home, they've denied cert on all relevant appeals since McDonald.
No. There were two dissents, one by Stevens, one by Breyer. From Wikipedia [0]:
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Justice Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
You must be thinking of the Breyer dissent. Even that does not stipulate that the right is individual, but just argues that even if it is, the DC law was permissible.
Even people who agree with you on the issue recognize that the Stevens dissent does not support an individual right [1].
[0] https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...
[1] https://reason.com/blog/2010/06/28/justice-john-paul-stevens...
Or to restate, it is my understanding that the dissents accept an "individual right" interpretation in some abstract sense before interpreting the whole as meaning nothing for individuals. Which I'll admit is a fine distinction, but this is from the group that finds a right to what they claim is privacy from the "penumbras" and "emanations" of explicit constitutional rights. So making find distinctions like I think I'm seeing, which don't really make any sense anyway is par for the course.
Specifically why not? It seems pretty clear to me. Let's take it point by point.
() the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended
Isn't that pretty clearly an argument that it's not an individual right? I'm sure you disagree with it; I'm sure you think that the individual right aspect is clearly expressed; but given the militia clause and the use of the collective term "the people", someone else might not read it that way. I'm not asking whether you agree with the reading, I'm asking whether you can see that, given that reading, the fact that the framers chose this wording is an argument that they didn't intend an individual right. If not, why not?
() that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only
This seems pretty clear too.
I'll skip the next two points and come to this:
() The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Again, I understand that you think that is exactly the choice the Framers made. Does this very point not show you the depth of the disagreement here?
As for the Reason article, again you claim it does not support my contention. And again, I ask you to explain. The author, Damon Root, senior editor of Reason, clearly thinks it does; see the second sentence.
Look, I don't always have a lot of respect for the Justices either. I think Scalia is an arrogant windbag, and don't even get me started on Thomas. But I would never go around thinking that they don't actually disagree with me.
Post-Heller, post-McDonald, it's moot. The Court's word is Constitution.
If the anti-gun (really, pro-authoritarian-state) minority wants to ban firearms: they should lobby for a Constitutional amendment (which will undoubtedly fail), and then lobby for each individual state to ban arms - keeping in mind, some states have arms in their constitutional documents as well.
And then, once all of the appropriate legislative and political actions have been completed, this group can have police (who will need firearms to actually enforce this law, and most of whom are pro-private-firearms themselves) go door to door and round them up.
What could possibly go wrong?
Every time one of these shootings happens RKBA repeal gets dragged closer to the Overton window. The only question is how much more human blood must be shed.
In the same amount of time, there have been about 158 fatalities due to being struck by lightning.[2]
In 2013 alone, there were 611,105 fatalities due to heart disease and 56,979 due to influenze and pneumonia.[3] The stats are a bit out of date, but from 2005-2009, ~3,500 people drowned each year.[4]
If you're worried about yourself or a loved one dying, don't worry about dying in a mass shooting. It's about as likely as being struck by lightning.
[1]:http://www.motherjones.com/politics/2012/12/mass-shootings-m... [2]: http://www.lightningsafety.noaa.gov/fatalities.shtml [3]: http://www.cdc.gov/nchs/fastats/leading-causes-of-death.htm [4]: http://www.cdc.gov/HomeandRecreationalSafety/Water-Safety/wa...
Why?
1996 was the year the Australians banned guns.
The problem is not the tools but the people.
Frankly, I don't think the authoritarians have the stomach for gun prohibition. They need to get busy, pronto. It's going to take more, a lot more, than tweets to people who already agree with them. And so far, they've done nothing to get their "Repeal the 2A" ball rolling. Time's a-wastin'.
Well, given that we won't take this passively and will start slaughtering them, retail or wholesale (e.g. kill Blue cities by taking out their electrical system), I would hope they don't "have the stomach" for it. Well, prior to using the amendment process to repeal the 2nd Amendment, and even then that wouldn't change the facts on the ground, just like outside of Illinois Heller and McDonald haven't much changed the facts on the ground.
Evidence for this?
Revealed preferences show Americans buying firearms in steadily increasing numbers, e.g. both November and Black Friday hit new NICS records.
It explains the meaning of the words and phrases, and their intention, and provides ample justification in the way of founding-era sources.
> There are many reasons why the militia was thought to be “necessary to the security of a free state.” [...] When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. [...]
> That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.
Arms are indeed a precondition for a militia, but it seems to me the 2A only exists because the need for a militia was perceived at the time. I'm not so sure that's the case today. In any event, you make a very good point about the danger of 'creative' interpretations.
> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because 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.”
> Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. [...] [A]part from [its] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
The court also examined the meaning of the word "militia". The word had a different meaning at the time than it does today. The militia did not refer to a specific military force, like the National Guard today. Rather, it referred to a section of the populace:
> As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
> We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
Note that the "right of the people to keep and bear arms" is a precondition, according to the 2A, for a "well-regulated militia", not vice versa. If you want to repeal the 2A, repeal the fucker, don't try to sneak repeal under the wire with a license to twist the grammar of the law till it says what you want. That just opens the door for the government to justify violating, say, the first and fourth amendments.