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aileron
02-12-2010, 10:04 AM
So I'm doing some practice on compound sentences without a conjunction and while doing so I ask myself, "how is the 2nd am. put together again?" Its not the type I'm working on but I was just curious.

So I go to findlaw, and what do I find but this article on the 2nd.

http://caselaw.lp.findlaw.com/data/Constitution/amendment02/

Talk about leaving your prejudice in.

Annotations

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ''individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.1 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.

You'd think they would update this.

dantodd
02-12-2010, 10:10 AM
while it doesn't cover Heller; otherwise it seems a pretty unbiased explanation.

kf6tac
02-12-2010, 10:30 AM
Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints.

There's nothing currently wrong about this sentence.

jdberger
02-12-2010, 10:32 AM
Seems pretty current to me. We can poke them after McDonald is decided.

aileron
02-12-2010, 10:53 AM
So they shouldn't mention the 14th amendment and what its implications are to that statement, nor should they mention heller.

Also the subtext implies that the individual rights theory is well not really the ideal. But no mention of militia theory as maybe not being the case; no that theory is not over simplified at all by the very fact that its put in contrast to the former. The way it was written was pushing an ideology subtly.

kf6tac
02-12-2010, 12:13 PM
Also the subtext implies that the individual rights theory is well not really the ideal. But no mention of militia theory as maybe not being the case; no that theory is not over simplified at all by the very fact that its put in contrast to the former. The way it was written was pushing an ideology subtly.

Quite the contrary. The author is stating -- perhaps clumsily -- that both the individual and collective theories (the "opposing theories," as in theories that oppose one another) are "perhaps oversimplified." It's clearer if you snip out the excess verbiage:

"The opposing theories, perhaps oversimplified, are an 'individual rights' thesis . . . and a 'states' rights' thesis . . . . "

I don't see that as pushing an ideology at all, since both sides of the debate have been framed in overly simplistic terms at times. As is almost always the case, the truth lies somewhere in between -- though in this case, it is much closer to the individual theory than it is to the collective theory.

Certainly Heller merits a mention somewhere in the annotation, but it's pretty clear from the text and the footnotes that this has not been updated in quite some time. The annotations are taken from the CRS Annotated Constitution, which is published by the Congressional Research Service. It appears to be supplemented every two years, but if you go up one page to the main FindLaw US Constitution page, you'll see at the bottom that the last time FindLaw updated their site was with the 2000 (i.e. pre-Heller) supplement:

http://www.findlaw.com/casecode/constitution/

The Congressional Research Service, Library of Congress prepared this document, The Constitution of the United States of America: Analyis and Interpretation. Johnny H. Killian and George A. Costello edited the 1992 Edition. Johnny H. Killian, George A. Costello and Kenneth R. Thomas edited the 1996 and 1998 Supplements. George A. Costello and Kenneth R. Thomas edited the 2000 Supplement.

FindLaw has divided the document up into smaller sections for the Web and added hyperlinks between the sections, as well as links to Supreme court cases cited in the annotations. FindLaw also incorporated the 1996, 1998 and 2000 Supplements into the 1992 Edition text.

Here is the additional annotation from the most current (2008) supplement, which can be downloaded here (http://www.gpoaccess.gov/constitution/browse2002.html#08supp):

[P. 1275, add at the end of the section:]
It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on new scholarship regarding the origins of the Amendment, the Court in District of Columbia v. Heller confirmed what had been a growing consensus of legal scholars – that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment, an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the Court noted that its use was not limited to those contexts. Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription. Finally, the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.

Using this “individual rights theory,” the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.” Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” However, the Court specifically stated (albeit in dicta) that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision. The Court, however, declined to establish the standard by which future gun regulations would be evaluated. And, more importantly, because the District of Columbia is a federal enclave, the Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not apply to the states.