Does the 2nd Amendment apply to all Americans?

[BushOut06]

Think carefully about this...

If the 2nd Amendment applies to all Americans, then why don't we allow convicted felons to purchase firearms? If gun ownership is a constitutionally guaranteed right, then once they have served their sentence, shouldn't they be allowed to exercise that right, just like anyone else? Once they serve their sentence, they're supposed to regain their civil rights - such as the right to vote. So why is it okay to restore one Constitutional right, but not another?

Does anyone know if this has ever been brought before the Supreme Court?

[Junkdrawer]

1. Many times...all rulings against an absolute 2nd Amendment right...

But in the last week or so there was a lower-court ruling promoting an absolute 2nd Amendment right.

[Junkdrawer]

6. Cites:

The Second Amendment in the Courts

As a matter of law, the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militia.

Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice - in 1965 and 1990 - the Supreme Court has held that the term "well-regulated militia" refers to the National Guard.

In the early 1980s, the Supreme Court addressed the Second Amendment issue again, after the town of Morton Grove, Illinois, passed an ordinance banning handguns (making certain reasonable exceptions for law enforcement, the military, and collectors). After the town was sued on Second Amendment grounds, the Illinois Supreme Court and the U.S. Seventh Circuit Court of Appeals ruled that not only was the ordinance valid, but there was no individual right to keep and bear arms under the Second Amendment (Quillici v. Morton Grove). In October 1983, the U.S. Supreme Court declined to hear an appeal of this ruling, allowing the lower court rulings to stand.

In 1991, former Supreme Court Chief Justice Warren Burger referred to the Second Amendment as "the subject of 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...(the NRA) ha(s) misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see - and I am a gun man." Burger also wrote, "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...(S)urely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special' or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms..."

Since the Miller decision, lower federal and state courts have addressed the meaning of the Second Amendment in more than thirty cases. In every case, up until March of 1999 (see below), the courts decided that the Second Amendment refers to the right to keep and bear arms only in connection with a state militia. Even more telling, in its legal challenges to federal firearms laws like the Brady Law and the assault weapons ban, the National Rifle Association makes no mention of the Second Amendment. Indeed, the National Rifle Association has not challenged a gun law on Second Amendment grounds in several years.


http://www.bradycampaign.org/facts/issues/?page=second

And


On Friday, March 9, the earth moved on the gun-control issue. For the first time in our nation’s history, a federal appeals court struck down a gun law as a violation of the Second Amendment. With a 2-1 ruling from the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia, the city’s restrictive handgun law was held unconstitutional. And as a threat to gun regulation, the Second Amendment moved from rhetoric to reality.

Before Parker, at least 75 federal and state court rulings had upheld all kinds of gun laws, including handgun bans. How did Senior Judge Laurence Silberman and Judge Thomas Griffith come to a different conclusion? By defying Supreme Court precedent, rewriting the amendment’s plain language, and employing an “all means necessary” path to their predetermined result, even relying on the infamous Dred Scott decision (which, it turns out, has nothing useful to say about the Second Amendment). Their opinion is a laboratory study in judicial activism.


http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1174381418050

[sprinter]

16. Well-Regulated Militia

If the authors of the 2nd Amendment meant that only members of the militia could own firearms, they would have said so directly. (Don't try to tell me that the English of the time was not as "declarative" as today -- the Constitution is replete with unambiguous, un-nuanced, declarative statements.)

The single example given for the necessity of the firearms right is somehow interpreted as the ONLY condition.

I'm in favor of the Brady campaign for background checks and vigorous regulation of guns. I also believe that the government (at all levels) has an obligation to regulate firearms at least as well as they regulate contruction, food, motor vehicles, and so on.

But please don't try to put words into the 2nd Amendment to change its meaning. It isn't necessary.

[Junkdrawer]

21. You're trying to take words OUT of the 2nd Amendment...

And, using your very excellent logic ("the Constitution is replete with unambiguous, un-nuanced, declarative statements") if they wanted to give Americans an unambiguous right to bear arms, they wouldn't have prefaced the "right" with the clause "A well-regulated Militia, being necessary to the security of a free State".

[Lautremont]

2. I was asking this very question.

Die hard supporters of this arms-bearing thing don't seem so quick to defend everyone's right to it. Just because you've had a brush with the law, or you get a little confused sometimes, doesn't mean you aren't still a US citizen with the same rights as others.

But I know what the gun-huggers will say: "But we might get hu-urt!" Well, that's not as important as preserving a basic American constitutionally-enshrined right, is it?

[William769]

4. I'm part of the so called "gun-huggers"

And I say let them have it. Wanna try again?

[Lautremont]

29. It's good to see that someone here has the courage of their convictions.

[wakeme2008]

3. With the Repugs in control of Congress for 10+ year and Bush in the WH

Why did DC residents get the right to own a handgun..............

with Repugs the 2nd Amendment only counts when they want it to...

[Beer Snob-50]

5. Gun ownership is not a right

it is a priveledge (sp). By that I mean that while you can own a gun, you must meet certain conditions (ie not someone who has a firearm violation on his record, history of mental unstablity, ect)

[slackmaster]

7. No, it is a right that has been curtailed for certain individuals

People who have demonstrated that they cannot be trusted with guns.

[BushOut06]

9. How can you "curtail" a Constitutional right?

Should we "curtail" the right to vote for those that we decide we can't trust?

[Beer Snob-50]

12. NO

you curtail the right by demostrating the ability to cause harm to society by availing yourself of that right.

[slackmaster]

13. Due process

We have a right to free speech, but inciting a riot has been prohibited. So has threatening the President.

Should we "curtail" the right to vote for those that we decide we can't trust?

We've already done that - Convicted felons (in most states), and people under age 18 cannot vote. Neither can non-citizens.

[rinsd]

17. "Should we "curtail" the right to vote"

Not a comment on the morality of it but many states prevent felons from voting or make felons aaply to reinstate their voting rights.

[Beer Snob-50]

19. and I strongly disagree with this law.

because allowing felons to vote does not harm society at all.

[rinsd]

22. I do not think the logic behind it is danger to society but rather as punishment.

Because one has broken society's law they are no longer permitted to have a say in how the society is run seems to be the gist of that logic.

I don't like the law either though as it seems to be an extraneous punshiment extending beyond one's sentence.

[Beer Snob-50]

24. all i am saying

is that the only reason one should not have the same constitutional rights as everyone else is if by giving you that right you would be a threat to society.

[Bandit]

28. Ask Padilla how that can happen

:shrug:

[sprinter]

8. Does the 2nd Amendment apply to all Americans?

All rights are subject to regulation. It's up to our lawmakers (and courts) to determine when the regulation (necessary for an orderly society) reaches the level of infringement. You may have a right to own a firearm, but the state may regulate the type of firearm, how it is obtained, and where it may be carried. Courts have long recognized this.

Also, the Constitution permits revokation of rights as long as due process is followed. Convicts are therefore denied many of the rights of normal citizens. It's up to the state legislators to decide which rights may be restored to ex-convicts. Thousands of court decisions have recognized this as well.

[Freddie Stubbs]

10. Some states do not automatically permit felons to vote after they have served their sentence

[BOSSHOG]

11. Maybe

I'm just too simple. I read the second amendment and discover that we have the right to bear arms for the purpose of defending the country.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Interesting 18th century sentence structure but I find no ambiguity in the text. We can have guns so we can defend the country. I'm not arguing ownership or gun control, I'm doing what conservatives, do, insist on a strict reading of the constitution. Except some conservatives don't read this amendment strictly.

The VT shooter wasn't defending the country but thanks to the likes of the nra he had easy access to a dangerous weapon and now 32 funerals are being planned.

And per your post, some folks buy weapons and then become criminals, just like the kid in Blacksburg.

[JustABozoOnThisBus]

14. Yes

Once a felon has served his time in prison, finished his time of parole, gotten his ankle-bracelet lo-jack thing removed, and had his voting rights restored. Then yes, his rights under first, second, fourth, and fifth amendments should be restored.

[leftofthedial]

15. well, it apparently applies to the dead ones

murdered with guns

[LSK]

18. The 2ND Amendment refers to Militias

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

http://usinfo.state.gov/usa/infousa/facts/funddocs/billeng.htm

[slackmaster]

23. Who are the militias?

Federal (United States Code):

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

State of California (Military and Veterans Code):

120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia --and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard or the
Naval Militia.

122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.

Refer to other states' laws for more information.

References:

http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=mvc&group=00001-01000&file=120-130

The Second Amendment doesn't specify that it applies only to the organized militias. It therefore applies to the people in general.

[LSK]

25. Read it again

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The 2nd amendment ONLY talks about "a well regulated militia". Somehow people seem to think they are in themselves a well regulated militia.

Also note, individual freedoms are in Amendment one, yet there is no reference to arms there.

[slackmaster]

26. The codes I cited did not exist when the 2A was written

I would agree that a clarification would be appropriate,

BIG "HOWEVER",

I think the fact that all rights exist, save those that have been expressly curtailed by due process, is sufficient justification for saying that individuals have the right to keep and bear arms. The 2A discussion always goes nowhere.

Even if the 2A was not intended to protect the right of individuals to own firearms (and I believe it actually was), that does not mean there is no such right.

[TX-RAT]

27. What does a militia refer to?

Militia is the activity of one or more citizens organized to provide defense or paramilitary service, or those engaged in such activity. The word can have five somewhat different meanings:

Defense activity, as well as those engaged in it, when it is defense of the public, its territory, property, and laws
The entire able-bodied male population of a community, town, or state, which can be called to arms against an invading enemy, to enforce the law, or to respond to a disaster
A private, non-government force, not necessarily directly supported or sanctioned by its government
An official reserve army, composed of citizen soldiers, also called an Army Reserve, National Guard, or State Defense Forces
The national police forces in Russia, and other former CIS countries, or the former Soviet Union: Militsiya
In any of these cases, a militia is distinct from a regular army. It can serve to supplement the regular military, or it can oppose it, for example to resist a military coup. In some circumstances, the "enemies" against which a militia is mobilized are domestic political opponents of the government, such as strikers. In many cases the role, or even the existence of a militia, is controversial. For these reasons legal restrictions may be placed on the mobilization or use of militia.

http://en.wikipedia.org/wiki/Militia

[damntexdem]

20. All amendments apply to all Americans.

But the 2nd Amendment does not guarantee that all have the right to firearms. In the first place, there is considerable disagreement over what constitutes the limit of 'militia' and whether that delimits ' the right of the people to keep and bear Arms.' Perhaps more importantly, the phrase "a well regulated Militia" could be seen as arguably defining what limits are not infringements. Felons, at least those convicted of violent crimes, can arguably be considered outside the pale of a 'well-regulated militia.'

Note further that it is up to state discretion whether felons regain their voting rights. Personally, I would feel a lot more comfortable having a released felon convicted of a violent crime being able to vote than being able to legally own a gun.