As many have said - the constitution is not a suicide pact. A lot of the founders thought having a standing army was a horrific idea and that we should live in a sort of citizen-farmer Cincinattus/Roman tradition and have an agrarian society. We've discarded a lot of that as outdated and anachronistic and rightfully so. It simply would not work in the US or the world at any point after the industrial revolution, let alone today.
Excellent point and I was about to mention the Federalist papers myself. Reading Federalist 29 and 46 it seems clear to me that the idea behind the Second Ammendment is to allow the states to form citizen militias for their own and collective self-defense. The idea seems to follow along the lines of that the states wouldn't have their own standing armies but could call upon armed citizens even in the case of battling an oppressive Federal government. I agree with Sam though that this idea is anachronistic now that there are National Guards and the idea of states resisting the Fed with civillian militias makes no sense after the Civil War and with the advent of highly mechanized warfare and WMD's. That said though the Ammendment still stands and while it may be anachronistic it can't be ignored in its totality. Clearly it says that the people, private individuals, have the right to bear arms. Whether their use can be limited or they can be registered seems the real question. An originalists could argue that this right proscribed the Federal government and the States could limit gun ownership but the other problem is that the 14th Ammendment has extended Bill of Rights protections to the states. One more thought on this is that no where that I've noticed in the Ammendment or Fed. Papers does it mention a right to bear arms for personal self-defense or hunting so it seems to me that the Second Ammendment could be strictly read to say that you can own arms but you can only use them in the context of being called upon to serve in a state militia. I've often wondered about that and the most I can figure is that in a largely rural society with a huge frontier being settled it was taken for granted that people would use arms to hunt or defend themselves so the framers didn't see the need to enumerate those as rights.
If the Second Amendment is outdated then maybe it should be repealed instead of ignoring its intention. You don't purposely misinterpret the amendment because you consider it a 'suicide pact.' That's tantamount to disregarding the entire framework that set up the post Constitutional order. A militia in those times was a local, voluntary and non exclusive organization, one you'd need to bear arms in to be effective. The National Guard is not a militia. Those who claim the meaning of the 2nd is something other than the right of the private citizenry to bear arms are self justifying their own political leanings. As far as being a 'new' right or not, that all depends on your interpretation of the amendment. If the Court has ruled incorrectly then it is restoration of a right given in the Constitution.
^Or maybe if the second amendment is outdated instead of repealing it - which is politically impossible - we should just not give it a dramatic new interpretation which is not a clear call, absent some crying need to do so.
That's fair enough. But arguing that we should ignore it because it would be hard to repeal is a fairly specious argument. Either go through the process and get enough support to repeal it or abide by it. Saying let's continue to misinterpret it because it's outdated subverts the entire framework of our democracy (ie the Constitution). We've seen post-framers era Amendments and we've seen Amendments repealed which is a clear indicator that while difficult it is not impossible to change that framework. It is, however, the point that is should be difficult to change.
^ I agree with Hayes. Whether it is anachronistic or not we shouldn't be picking and choosing which parts of the Constitution we are going to follow. If it is anachronistic then lets repeal it.
I'll let them argue with themselves about what a strict constitutionalist is. The ones that I have listened to talk about understanding the contextual background of the text. Since you clearly are not a 'strict constitutionalist', how you interpret their philosophy doesn't sound like it should be particularly germane in judging whether they are being consistent in their philosophy. Furthermore, your philosophy of 'textual analysis' sounds a lot to me like people who take the text from the bible that 'Thou shall not suffer a witch to live' and believe that they are commanded by god to hunt down and kill wiccans. If you refuse to try and understand original intent, you fail to understand that the original intent of the word ‘witch’ is very different from someone who goes out in the forest and dances in the buff. Context is everything. Yes you can ridicule people. Good for you. I appreciate that you don't like strict constitutionalists, but their philosophy seems relatively self-consistent to me (independent of how they choose to selectively apply it). The idea would be to understand what the characteristics of a traditional free speech forum are and see if those apply to an airport. But turning the opposition into caricatures so you don't have to take them seriously doesn’t sound ‘intellectually honest’ either, as long as we are throwing that phrase around. Well... then other people disagree with you. That doesn't make them hypocritical liars. It means that they have a different philosophy than you. Except we are talking about a group of people who believe in original intent. Case law from 100 years ago is not fundimentally the bottom line for them. Right, so they are inconsistent with regards to Griswold (which I don't even know anything about), and undoubtledly other things. You are generally taking issue here with the faults and flaws expressed by the people who claim to be strict constitutionalists. I am talking about how the 'strict constitutionalist' philosophy would in an abstract world be applied here. You don't like strict constitutionalists. I get that. But its kind of irrelevant, at least to what I am trying to discuss. From my perspective, you should add yourself to the list of the inconsistent people, as well.
it's not MY philosophy - it's that of Scalia, Thomas, etc (google Scalia and "plain meaning" or "textualist"- it's his calling card). These are the people that you are defending here.
I take this to mean that you believe Americans should have a right to own firearms due to the 2nd Amendment - is this correct? If so, do you believe we, as individuals, should also have the right to own grenades, missiles, stealth bombers and nuclear weapons?
I said this before, but it doesn't seem like we are discussing the same subjects. You seem to be interested mostly in the people, their foibles and their inadequacies. I have been trying to talk about a stated legal philosophy in the abstract and whether a position on a specific constitutional issue is consistent with that philosophy. You keep trying to make me defend people. I absolutely agree with you that people the world over are not true to their stated ideals, and that they compromise their philosophy for some sense of expediency. I also agree that there is a group of conservatives who are much more blatant about this than the average person. I don’t know Scalia, but from everything I’ve seen the man is an absolute and total ******* personally, and deserves a good asskicking. But for what I've been trying to talk about, it makes no difference.
At a billion plus I don't think too many people could afford stealth bombers or nuclear weapons. Seriously though, I'm not really sure exactly where to draw the line (just being honest) since you're running to the extreme. There appears to be a 'regulated' caveat involved.
Judges pick and choose when to apply constitutional protections every day. It is a siimple fact of life and always will be. Especially in close cases like this one.
Are there any other instances where people choose to ignore a whole ammendment to the constitution because it is deemed archaic? That seems to me to be fundimentally different than choosing when to apply the protections.
