CONSTITUTIONAL LAW
"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."
-the phrase "bear arms" historically meant to use a gun in a militia. the preface of the amendment says the purpose regards militias.
-“The people”: The founders used this phrase to mean not individual persons, but rather the body politic, the people as a whole. During the ratification debate in Virginia, speakers used the phrase “the people” 50 times when discussing the militia. Every single mention referred to Virginians as a group, not as individuals.
-when the constitutional convention occurred, they didn't talk about the need for people to have guns or self defense, all the emphasis was on the need for a militia and the militia langauge in the constitution. the following links are for both this factoid and the next one too.
-From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun
-when the amendment was passed they had all kinds of laws regarding who could have guns for all kinds of reasons, along with gun control
-here are some highlights about gun laws during the founding era:
-stand your ground laws were not the law. colonists had the duty to retreat if possible.
-public and concealed carry in populated areas was banned
-anyone who didn't swear loyalty to the state couldn't have a gun. it's far fetched to say as today's conservatives do that guns were protected to protect against the state when back then the state was disarming people they thought were disloyal
-the state disarmed people for the purposes of furthering the government. one of washington's first acts was to disarm the people of queens new york.
-all guns had to be registered and inspected
-some states regulated the use of gun powder
-some cities prohibited firing guns in the city limit
-some cities prohibited loaded firearms in houses
-only one state protected gun rights outside of the militia
-several states rejected the idea of gun rights for self defense or hunting, even though conservatives today claim it was already protected by the second amendmnet
-indians and blacks were barred from having guns
-the supreme court historically didn't touch the amendment much, but when they did treated it as pertaining to militias. as recently as the reagan administration, the conservatives said the same thing. it was called a quote unquote "fraud" on the public, to say otherwise, by the conservative chief justice Burger.
-drafts of the amendment included a conscioustious objector clause, if you objected to militia duty for religious reasons you can be exempt from a militia. this reinforces that the amendment pertained to militia stuff.
-half the population from postal workers to priests were exempt from the militia. this reinforces that it wasn't generally understood that the people informally make up an informal militia. a militia is what a state defines it as.
-all the amendments have limits on them. including the first amendment. you can always read into the amendment what exactly it means to infringe on someone's rights, and find other reasonable exceptions
-the bill of rights and this amendment was originally designed as a safeguard against the federal government. that's why some hard core conservatives say states should be free to regulate as they see fit. others, say the fourteenth amendment incorporated parts of the bills of rights including the second against the states as fundamental "liberty" interests. each amendment can be incorporated on an individual basis depending on the merits of whether the amendment represents a fundamental 'liberty' interest. the issue still exists though, that how can you incorporate something as a fundamental right if it was never there to begin with?
-what does "arms" mean? if we want to be originalists and faithful to orginal intent, there is a difference between military grade weopons and the muskets they had when the amendment was passed
-you would have to use the word "keep" in the amendment to spin your way into individual rights. this ignores all the historical and amendment itself context, and ignores straighforward reading of the words taken together.
-the following shows that courts have only since recently started applying strict principles for an individual right to a gun since the case Heller. (because that ruling deviates from prior precedent) the line between fundamental rights, non-fundamental rights, and privileges can be blurry in practice. but the rules have meaning.... there will now be a stronger expectation to let people have guns. if the legal system starts treating a gun like the right to water, a lot of bad policies and outcomes are possible even perhaps despite the fact that everyone knows these shouldn't be treated the same way. the legal system may expect things to get bad with a person before we can do anything about it, which again is a standard atypical from history or globally. "reasonable suspicion" someone is violent may not be sufficient, "probable cause" may not be. "beyond a reasonable doubt" probably would be, but it's hard to say someone is like that for their whole life. a good example is the fact that people on 'no fly' lists for airplanes can still buy a guy- there's a different legal standard even though everyone knows the person is too shady to be doing things like fly planes, and buy guns. expanded background check and treating guns like cars would simply weed out the incompetent, undisciplined, and unmotivated, violent, and mentally disturbed.... if promoting the use of guns causes more murder, do we really want these sorts of people having guns? granting fundamental rights for legal purposes instead of a practical right will cause excessive litigation to deprive people from guns on an individual basis when they shouldn't have had them to begin with. thus, because Heller got the law wrong, society is approaching a system where people can be unfit to have guns but still society still be forced or otherwise prone to allowing them to have guns anyway.
-the following is a common set of quotes from the founding fathers. if you google each of the stronger looking ones here or that you find around the internet, you will see them taken out of context or misquoted. for example, here is the proper context of washington's first point, where he was simply addressing the need for a militia (see the second link below for even more context)- in other words, the people should be armed and disciplined for a militia if the State has a plan for a militia... so the question remains, if they are not disciplined for a militia, why should we assume they should have a right to otherwise be armed? Washington even went so far as to say it was a condition in having them be armed and disciplined for a militia, that there be some sort of formalized plan, a "requisite" condition:
""Among the many interesting objects, which will engage your attention, that of providing for the common defence will merit particular regard. To be prepared for war is one of the most effectual means of preserving peace.
A free people ought not only to be armed but disciplined; to which end a Uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent on others, for essential, particularly for military supplies.
The proper establishment of the Troops which may be deemed indispensible, will be entitled to mature consideration. In the arrangements which may be made respecting it, it will be of importance to conciliate the comfortable support of the Officers and Soldiers with a due regard to economy.""
