What’s in a question?
David Hardy notes the various iterations of the question that the Supreme Court will answer in Parker. My thoughts are that the question the SCOTUS is answering seems to indicate an assumption there is an individual right.
Update: Joe thinks it’s the right question.
November 20th, 2007 at 4:37 pm
I’m worried about that “not affiliated with a state-regulated militia” wording. That could serve as an excuse for ruling that the 2nd Amendment only applies to people who are members of some sort of State-organized group.
November 20th, 2007 at 4:54 pm
To me it seems to read that it doesn’t necessarily hold that the states’ rights view and the individual rights view is not an either/or proposition.
It could be that both individuals and states have the right/”power” to possess weapons free from the intrusion of the gov’t/.fedgov (respectively).
November 20th, 2007 at 4:59 pm
OK, I think I get Joe’s point that they are specifically calling out the individual’s right. They juxtapose it to the state-regulated militia.
Interesting. I wonder who actually detailed that phasing.
November 20th, 2007 at 5:05 pm
The other part of all of this comes down to whether is applies to states. And whether DC actually has that definition.
From Denniston’s SCOTUSwiki page.
I’m watching for writings by Denniston. He seems to be catching things that aren’t low hanging fruit on this topic.
November 20th, 2007 at 5:06 pm
Although the Puppy Blender has a paper talking about the problems with a (stipulated) states’ rights position.
One of which was what would happen if a State required it’s citizens to own automatic weapons for potential service in the State Militia?
It effectively gives the states the ability to repeal any and all federal gun laws unilaterally.
November 20th, 2007 at 5:13 pm
Check out the Volokh Conspiracy as well. They’ve had a bunch of entries on the topic today.
November 20th, 2007 at 5:17 pm
HEH. Orin Kerr on where Justice Kennedy will stand on all this:
November 20th, 2007 at 7:23 pm
I find it curious that they have decided to write the question that they will answer.
I didn’t think it worked that way.
And if it does, it opens a Pandora’s box of what future Justices could decide a case ‘really means’ and go from there.
November 21st, 2007 at 4:47 pm
Yu-Ain Gonnano wrote:
“It effectively gives the states the ability to repeal any and all federal gun laws unilaterally.”
I agree. In that the Preamble of the Bill of Rights refers to them as “restrictive” and “declarative” to the Federal Government, then the definition of “militia” and “delegated power” belongs to the States….also according to the 10 th Amendment.
The 2nd Amendment is a sentence and should be interpreted according to the rules of English grammar. The first part of the sentence is a subordinate or dependent clause which is explanatory of the independent or main clause as to why “the right of the people to keep and bear arms shall not be infringed.” That “SHALL NOT BE INFRINGED” is “restrictive” of the fedral government since it is addressed to it. This is clearly an indvidual right since “the people” have rights whereas the government has “delegated powers”–from the people.
Even if the SCOTUS ruling happens to be grammatically erroneous, individual states can simply define “miltia” as being all their citizens, which, in the case of our own State, would be precisely congruous to the wording of Article I, Section 26 of the Tennessee Constitution’s Declaration of Rights and particularly according to the original intent of our founders. “Militia” and “the people” are synomous within the grammatical and historical context of the 2nd Amendment.
“I ask, sir, what is the militia? It is the whole people, except for a few public officials.” — George Mason
“Whenever governments mean to invade THE RIGHTS and liberties of THE PEOPLE, they always attempt to destroy THE MILITIA, in order to raise an army upon their ruins.” –Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789.
(Notice again the direct link of “miltia” and “the people” in contra-distinction to “an army”.)
“The best we can hope for concerning the people at large is that they be properly armed.” –Alexander Hamilton
The Militia is composed of free Citizens. There is therefore no danger of their making use of their power to the destruction of their own Rights, or suffering others to invade them.” –Samuel Adams
“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined. The great object is that every man be armed. Everyone who is able may have a gun.”….
…”The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government–lest it come to dominate our lives and interests.”–Patrick Henry
“The militia is a voluntary force not associated with or under the control of the state except when called out; a permanent or long-standing force would be entirely different in make-up and call.” –Alexander Hamilton (and this from a Federalist who was for a strong centralized government)
“A militia, when properly formed, are in fact the people themselves…and
include all men capable of bearing arms.”–Richard Henry Lee, Additional Letters from the Federal Farmer (1788)