>gun rights derive from the Constitution
Many people conveniently leave out the "well regulated militia" part of the second amendment.
Many people conveniently leave out the "well regulated militia" part of the second amendment.
Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.[1]
During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
> There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns. See also: http://www2.law.ucla.edu/volokh/common.htm.
If you look at what the Framers contemporaneously wrote about guns and the militia, it’s almost impossible to deny that the purpose of the second amendment is to ensure that able-bodied men would have access to fire arms in order to form militias, to not only combat foreign enemies but potentially domestic ones. Any sort of gun control that undermines that purpose cannot be squared with the second amendment, and we are slowly but surely rediscovering that understanding.
https://www.theatlantic.com/ideas/archive/2019/05/john-paul-...
“ Colonial history contains many examples of firearm regulations in urban areas that imposed obstacles to their use for protection of the home. Boston, Philadelphia, and New York—the three largest cities in America at that time—all imposed restrictions on the firing of guns in the city limits. Boston enacted a law in 1746 prohibiting the “discharge” of any gun or pistol that was later revived in 1778; ”
“ Boston’s gunpowder law imposed a 10-pound fine on any person who took any loaded firearm into any dwelling house or barn within the town. Most, if not all, of those regulations would violate the Second Amendment as it was construed in the 5–4 decision that Justice Antonin Scalia ”
During colonial times we did not have a large standing army and relied on state militias.
https://constitutioncenter.org/blog/on-this-day-congress-off...
None of the Bill of Rights applied to the states until the ratification of the 14th Amendment in 1868, after which it was held to be "incorporated to the states". State and local laws from the colonial period are not relevant.
During the same period, several states had established churches, but I see no one arguing that the First Amendment still permits that.
Is it possible that he did and you’re missing something?
For the record, it's impossible under our current system and political reality. The process to repeal an amendment requires more than three population centers on the east and west coast, and the rest of the country isn't going to roll over for you.
Or we can acknowledge that passing constitutional amendments in the 21st century requires amount of political capital that it is no longer possible to attain in our system. Insisting that we interpret the status quo as favoring one's preferred ideology, and that one's ideological opponents must seek reform through an for-all-practical-purposes impossible mechanism is just a different way of expressing routine ideological preferences.
Why is this? What, concretely, has changed? Note that Constitutional amendments are supposed to be difficult to pass.
Congress has drifted from the institutional norm of resorting to constitutional amendments for reasons that have nothing to do with the merits of gun control. Insisting that an extremely difficult channel for reform is the only valid way to seek reform begs the question in favor of a deeply disputed interpretation of the second amendment, and disingenuously insists that other channels of reform aren't on the table, for reasons that have yet to be explained.
You might change your mind.
This is the first time I'm hearing of this "good working condition" definition.
In short, the clause is there as a justification/motivation, and not a precondition, for the right to bear arms.
> The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.
If the First Amendment had been written as "A well-educated legislature being essential to the governance of a free state, the right of the people to keep and read books shall not be infringed", you would argue, what, exactly?
That only the legislature had the right to books?
That only "well-educated" people had the right to books?
No, you wouldn't. Neither would anyone else, because that would be a tortured interpretation of the language.