Well said.TheCalvinator24 wrote:I happen to think it was intended as an individual right, but I can accept your position if by "state" you mean "the several states" and not the "national state."PlacentiaSoccerMom wrote:I personally think that the framers were trying to protect the security of the state rather than protecting individual rights to bear arms.
There's just something about the language "the right of the people to keep and bear Arms, shall not be infringed" that tells me that the right rests in people, not in governments.
There is a really interesting irony here, from the Constitutional standpoint.
When you get right down to it, the purpose of the Constitution was to list, specifically and precisely, the very limited powers that the federal government could exercise, the presumption being that any powers NOT specifically given to the federal government were retained by the individual states and/or the individual people of the states. At the time that the Constitution was first ratified, there were concerns that the 'federalists' would take on lots of power in the central government, which would be oppressive to the states and to the individual people of the states, and so, the Bill of Rights were proposed to be added to the Constitution, and they came in as the first Eight Amendments. A counter argument was raised that, well, if we start listing all these individual rights, those darn 'federalists' will start to argue that 'if it isn't in the Bill of Rights, then it is not a right, and the federal government can do what it wants,' and so, the 9th and 10th Amendments were proposed, which specifically provide that the individual states and the individual people of the states retain all those undelegated powers, and specifically, the fact that something is not included as a specific 'right' may NOT be taken as proof or evidence that it does not exist as a right.
All of which goes to show that the right to bear arms, etc., is not 'given' by the Constitution, but simply considered to be so important and vital that it is expressly 'recognized' by the Constitution.
But that's not the irony.
The underlying presumption of the Constitution is that it does not, in any way, limit the powers of the individual states except to the extent that the Constitution itself expressly delegates some governmental power to the federal government (for example, the coining power, or the power to wage war)-- in other words, anything 'governmental' that can be done, the states have the power to do it, subject to the very few express limitation sin the US Constitution, and subject to any limitations that a state may have in its own constitution. So, to the extent that you would read the 1st Amendment as prohibiting 'the government' from restricting someone's free speech rights, that actually only applies to the federal government, not the state government (but most state constitutions actually have some provision that specifically provides for that same limitation on the power of the state government). Similarly, to the extent that the 2nd Amendment guarantees the right to bear arms, it is really only applicable to the federal government: as per the quote above concerning the Stuarts disarming local people who were 'threats' to them, the framers of the Constitution were concerned about the possibility of the federal government disarming the people of the individual states, making them subject to oppression by a potentially oppressive central government, and so, they put the 2nd Amendment in there to make sure that there was NO QUESTION that the federal government could not impinge on the right to bear arms; the reference to the 'militia' simply reinforced that this limitation on governmental power applied to the federal government.
But the irony... the 14th Amendment provides generally for 'equal protection of the laws,' and the most, well, liberal interpretation of it was that it 'expanded' the protections of the first eight amendments so as to limit the powers of the states: this is why a state may not impose cruel or unusual punishment, because under this interpretation of the 14th Amendment, the protections of the 8th Amendment are deemed to apply to the states. Same with the 'search and seizure' requirements of the 4th Amendment, the right to counsel in criminal counsels, etc. The only exception to all that is that the Constitution provides that a person is entitled to a jury trial for any matter in which the amount involved is more than $25, and that would wreak chaos at the state level (the federal government gets around it by simply prohibiting people from filing suit in 'economic' cases that involve less than $50,000, at least, I think it is now $50,000; the states cannot do that, it would essentially keep everyone out of court, not a bad thing in many cases, but a very bad thing in others, where the amount involved would be <$50,000).
DC is not a state, and that was an issue in the school desegregation (and other civil rights) cases-- technically, the 14th Amendment does not really apply in DC in most respects. At the time of Brown v. Board of Education, the Warren Court finagled some stuff under the 5th Amendment and others, which provide for limitations on the power of the federal government, and they just held that this was the source of their authority to do what they did in DC.
Anyway, the only reason that the Supreme Court today can hold that the 2nd Amendment applies to the states and prevents them (and DC) from imposing a gun ban on private citizens is that earlier generations of the Court succeeded in setting the precedent that the first eight amendments serve to limit the powers of the states. Thus, the irony is that the conservative justices who formed the majority in the Court decision that today holds that the state governments (and DC) must keep their hands off our guns are in fact relying upon a 'liberal' interpretation of the Constitution (that state governments are subject to limits on their power), completing contradicting the usual conservative argument that the states are free to do what they want, while the liberal justices who would have supported the gun bans are, in effect, repudiating the central thesis behind virtually all of their decisions over the past 50 years, which holds that the state governments are subordinated to federal rules/requirements.
What a world...