22 Feb 2023 11:30 am
The militia might have been construed to be all able bodied men, but not in their everyday civilian roles, but rather when they were serving in the capacity of communal defense and were "well regulated".ROG62 » 22 Feb 2023, 11:30 am » wrote: ↑ The term “the people” is employed multiple times in the text of the Bill of Rights, and each time it protects an individual right, not some mythical collective right. For example, it’s facially absurd to suggest that the First Amendment somehow protects the rights of a collective or government entity, or that the Fourth Amendment protects some collective or government entity against unreasonable searches and seizures. Yet Burger and other Second Amendment restrictionists ask us to accept that the Second Amendment somehow stands unique as a sole exception?
Indeed, the Tenth Amendment specifically and separately distinguishes between states and “the people” in its text when it references “to the States respectively, or to the people.” Thus, the Framers were perfectly capable of referring to state authorities when they so chose, and could have done so in the Second Amendment if that’s what they intended.
That’s not Burger’s only error in interpreting “the very language of the Second Amendment,” however. Had the Supreme Court actually taken a case interpreting the Second Amendment as the Court did in 2008, he might’ve had the opportunity to understand as the Heller majority did that the term “militia” at the time of ratification referred to all able-bodied men, not some hypothetical “state army” that he references.
Burger then descends to straw man argumentation when he asserts that the Second Amendment wasn’t “intended to guarantee every citizen an unfettered right to avoid any kind of weapon he or she desires.”
Which pro-Second Amendment scholar has ever advanced such a claim?
As the Heller majority explicitly stated, the fact that the Second Amendment protects an individual right to keep and bear arms doesn’t mean that no restrictions are permissible. To illustrate by analogy, the First Amendment protects an individual right to free speech, but that doesn’t mean that defamation laws are unconstitutional. Similarly, the Fourth Amendment protects an individual right against unreasonable searches and seizures, but that doesn’t mean that warrant exceptions are unconstitutional.
Accordingly, the fact that some restrictions withstand constitutional scrutiny doesn’t in any way undermine the fact that the Second Amendment protects an individual right, not some hypothetical collective right.
Finally, there’s an amusing paradox and glaring intellectual inconsistency among Second Amendment restrictionists who assert the discredited “collective right” argument that Burger stated.
Namely, on the one hand they seek to outlaw so-called “assault” weapons and “military-grade” firearms. Yet on the other hand they claim that the Second Amendment was ratified to protect only “state armies” in Burger’s words. But taking that argument to its logical end, “assault” weapons and “military-grade” firearms would be precisely the ones most protected by the Second Amendment, since they’d be precisely the types of weapons useful to those hypothetical “state armies.”
https://cfif.org/v/mobile/#commentaryPost:4683
Considering that there have been more mass shootings in 2023 in the United States than there have been days in 2023, finding some way to stem the carnage seems to be gaining popular support.
People talk about "common sense" gun regulation which certainly presumes a meeting of minds to find that sense that is, in fact, held in common.... but it really degenerates to gun nuts versus gun grabbers and that "common sense" cannot be found, and the bloodbath continues.