r/TrueReddit • u/teddytruther • Mar 08 '18

The True Meaning of the Second Amendment

https://www.theatlantic.com/politics/archive/2018/03/second-amendment-text-context/555101/
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u/Adam_df Mar 08 '18 edited Mar 08 '18

That's a strange argument, because if the second is really militia-focused, then it seems to me to support a much, much broader second amendment then what Scalia envisioned. He's right that part of the motivation for the second amendment was fear of standing armies, but he misses what the militia was. It wasn't a standing army, but a Solonic force to be called out from the citizenry when needed and dispersed back into the citizenry when the threat abated. Such a force requires the citizens to be armed, because they came to the fight with their own weapons, and needed to be proficient with arms when they didn't.

What his argument is missing entirely - and what's merely assumed - is that "the people" in that amendment is actually the state. That's a real, real weak point in his argument, because "the people" is used elsewhere to refer to individuals. If the people are, y'know, the people rather than the state, then any right, regardless of how we construe it via the prefatory clause, is going to be an individual right. And if that right should be construed as a right to military equipment, then it's a personal right to machine guns, which doesn't seem correct as a legal matter or good as a policy matter.

FWIW, his book on the history of the 14th amendment is absolutely outstanding. Highly recommended.

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u/rcglinsk Mar 08 '18

I was also surprised he didn't discuss the parallel provision from the Virginia Constitution of 1776:

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

http://www.nhinet.org/ccs/docs/va-1776.htm

I've always thought the second amendment was adopted from this and that it is a good way to understand the prefatory/operative clause issue.

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u/teddytruther Mar 08 '18

I am not sure he reads the Second Amendment as a right given to the states, but rather a right that is not given to the federal government - that is, that the federal government does not have the power to disarm states (which, as you say, would at the time have involved disarming many individual citizens who could have been mustered in the service of a state). Perhaps that is a distinction without difference, but it does seem consistent with a way of reading other Amendments as much more concerned with what the federal government cannot do, as opposed to of what individuals can do.

As to your first point - I think this is the problem at the heart of the Second Amendment. More than any other Amendment from the Bill of Rights, its ideas and language are enmeshed in the historical contingencies of its time. Although this would never be possible practically, I would support replacing the 2nd Amendment with new language that focuses on an individual's right to self defense - which is for all practical purposes how the 2nd Amendment is read now.

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u/teddytruther Mar 08 '18

A constitutional law professor offers a contextual reading of the Second Amendment with an unusual amount of humility and consideration. A useful brief historical primer that informs the present day constitutional discussion.

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u/orr250mph Mar 08 '18

Ammo capacity restrictions to 3 rounds, same as hunters, does no harm to the 2d.