The Second Amendment does have a Meaning (IMO) [View all]

[cthulu2016]

One of the beauties of America is that even though the SCOTUS defines the Constitution in practice we are free to hold, as citizens, that the SCOTUS has erred. Court decisions do not require that we stop thinking about an issue, and the Constitution can be Amended so, on paper, even the SCOTUS does not have the last word.

This is my interpretation of the intended meaning of the 2nd Amendment, not a record of how others have interpreted it. Had I been on the Supreme Court in 1800 this is what I would read the thing to mean.

The Bill of Rights was created as a series of limitations on the power of the Federal government vis-a-vis the people, and the States. The Bill of Rights was created to assuage people's fears of the Federal government and what it might do down the road.

After the Civil War and after the 14th Amendment there was a century+ long process of the incorporation of the 14th Amendment as courts applied the Constitution's limitations on the Federal government to State governments.

We are accustomed to think of the 2nd Amendment as expressing an intrinsic right of the People, akin to freedom of religion, but before incorporation even freedom of religion itself was not an intrinsic right of the People. It was a limitation on the Federal government. Congress shall make no law...

Looked at that way, I think the meaning of the 2nd Amendment is clear. The colonies had just gained their independence from England using, among other things, military force. If the Federal government (Which was still new and being shaped) became tyrannical the Colonies, now States, did not want the Federal government to make rebellion against the Federal government impossible by disarming the States and the People.

And since folks were still idealistic about the use of violence to overthrow tyranny, even the power of the People to overthrow a tyrannical State was in intellectual play.

The well regulated militia part is, to me, a statement that the States can regulate arms within the limits of whatever personal right exists, but of course the Federal government cannot.

As an assertion of both a State Right and a right of The People, the incorporation of the 2nd Amendment is tricky. The ban on Federal laws against a free press became expanded to include State laws. Arizona cannot outlaw newpapers. But the ban on Federal gun laws cannot simply be extended to a ban on State gun laws because the 2nd Amendment clearly grants some power of regulation of arms to the States.

Obviously the Federal government is not the power Regulating the militia, in the 2nd Amendment. So who regulates? The States.

But a state cannot entirely ban guns held by The People, either.

I am not describing how I think the world should be. I am describing what I happen to think the 2nd Amendment (which I did not write) means.

Federal Gun laws should meet the same test as Federal laws infringing speech or religion.

States can have whatever gun laws they want short of a total ban, as long as they meet a low-threshold rational basis sort of test.

That's how I would read it. The personal right to own guns is a very limited right vis-a-vis the State government. It is a broad right vis-a-vis the Federal government.

I would support Constitutional Amendment to change all that. But I think an Amendment would be required.