Is the US in any way special that makes this process of regulating weapons so difficult? Do other countries not have 2A-like legislation?
Countries that don't have that baked into their foundational documentation have an easier time actually putting regulations into place and enforcing them. Because the right to guns is in our charter, it makes regulation much more difficult to implement and enforce (not to mention, much more unpopular because to many folks it feels like a betrayal of the charter).
That's what makes the US different than most other countries in that regard.
There are some debates, however, that the first clause of the second amendment actually is meaningful and not just meaningless flavor text. The interpretation of the second amendment therefore has undergone a lot of change over time, and is now interpreted way more broadly than it was in the early years of the country (i.e. when many of the founding fathers were still alive). An interpretation where the militia clause was largely meaningless didn't really come into vogue until the 1970s, and the NRA has a version of the 2nd amendment on its headquarters that edits it out.
>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.
Well regulated means well armed. Militia means citizen army, and the people means the people.
It is hard to come to a different understanding of the amendment without redefining these terms.
My understanding is that those favoring a living constitution focus on the purpose or why of the amendment was there, and and that a citizen militia is not longer necessary.
Who has the right to keep and eat food, the balanced breakfast or the people?
How do you figure this? Is there judicial precedent for this particular interpretation?
Consider another part of the US Constitution, the Commerce clause: "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"
In this case "Regulate" is clearly used to mean the action of setting rules. It's a bit weird that they would use that word again in a legal context to mean something non-legal.
The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause.
These instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
As the SCOTUS found in Heller, The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
Guns were not issued to citizens, but were owned personally. It makes sense that the resulting law would read “we want the ability to have a militia and have those guys bring along their guns”. Especially because there was no standing army at the time, it was envisioned that the US Army was simply a way to refer to a conglomeration of state militias, not an organized Army.
[1]: https://www.constitution.org/1-Constitution/cons/wellregu.ht...
Nobody says it's meaningless, it just doesn't mean what gun control proponents want it to mean, due to (a) a purpose, even a stated one, not being a limit on Constitutional rights; and (b) what the word "militia" means in the text.
(a) "The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting." District of Columbia v. Heller. There are numerous rights in the Constitution that are not limited solely to their original or documented purpose. The equal protection clause protects against gender, sex, and sexuality discrimination just as much as it protects against discrimination based on race or condition of former servitude. The First Amendment protects artistic expression and personal speech just as much as it protects political speech. A documented purpose does not limit the applicability of a Constitutional right.
(b) It is nearly a century-old precedent that the militia refers to every able-bodied man, not just those in, e.g., the National Guard. United States v. Miller, 307 U. S. 174, 179 (1939). That is why "the militia is assumed by Article I already to be in existence," District of Columbia v. Heller, rather than being created by Congress or a state.
I specifically cited United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court reversed a lower court's holding that the National Firearms Act was unconstitutional as it pertained to possession of a short-barreled shotgun. Importantly, their reasoning was not that the Second Amendment does not protect individual rights, but that such a firearm had no reasonable relationship to contributing to the common defense.
It also explicitly held that "the Militia comprised all males physically capable of acting in concert for the common defense," id. at 179. Twenty-first century gun control proponents seem to suggest that it only pertains to those in the National Guard or another milita-like body organized by statue (e.g., the Texas State Guard), but that is simply not the case and never has been.
That is a lot of words for committing an ad hominem.
> It also explicitly held that "the Militia comprised all males physically capable of acting in concert for the common defense," id. at 179, not whatever 21st century gun control proponents want it to mean.
The Swiss militia was in existence at the time the constitution was written, they knew exactly what they were talking about. And it is exactly what they still have and what we no longer have.
Miller is pro-interpretation that the first clause of the 2nd amendment isn't meaningless.
That's what it says at https://foreignpolicy.com/2013/04/05/how-many-countries-have..., along with the note that the US "is the only one that does not explicitly include a restrictive condition".
The irony here is that this court strikes down a clause of the Gun Control Act 1968 on the grounds that it is "not consistent with the United States' 'historical tradition of firearm regulation'" – and yet the very Supreme Court precedents it is applying in doing so are themselves not consistent with that tradition.
The 2nd Amendment was only intended to be a limit on federal gun laws; its authors didn't intend it to apply to the states, and nobody at the time understood it as doing so. Whether and to what extent state and local governments could regulate gun ownership was seen as a matter for state constitutions and state courts, not something the federal government (in any of its three branches) should get involved in.
Then the 14th Amendment was enacted, to try to prevent the defeated Confederate states from oppressing the newly freed slaves. Nobody at the time thought it had any relevance to non-discriminatory gun laws. I think its framers would have supported its use to overturn racially discriminatory state or local gun laws, but they would have seen racially neutral gun regulation as outside its intended scope.
The idea that non-discriminatory state and local (as opposed to federal) gun laws can violate the combination of the 2nd and 14th Amendments was introduced by the Supreme Court in 2010 (McDonald v Chicago). There is no evidence that the original authors of either Amendment would have foresaw or expected that outcome, and so was a major deviation from the "the United States' 'historical tradition of firearm regulation'".
The Gun Control Act 1968 is of course a federal law, so overturning it is not prima facie inconsistent with the original meaning of the 2nd Amendment. However, the logic of the decision (and the precedents it is based on) apply equally to equivalent state and local gun laws and regulations, which is a radical deviation from the original intentions behind the 2nd and 14th Amendments.
How do you figure this? The other rights assigned to the people in the bill of rights can not be infringed by states. For example, states can not pass laws which restrict free speech.
Then, the 14th Amendment was ratified. Its purpose was to prevent the ex-Confederate states from disenfranchising African-Americans. It was designed to overturn racially discriminatory state laws. There is no historical evidence its authors intended it to carte blanche apply the federal Bill of Rights to the states.
But, although the intention of the 14th Amendment in its historical context is quite clear, it was rather vaguely worded-and, in a gradual process, the Supreme Court began to exploit that vagueness in order to interpret the 14th Amendment as doing exactly that-“incorporating the Bill of Rights against the states”-something it has done piecemeal, article by article, clause by clause, and which still has not yet completed - the 1st Amendment was gradually incorporated from 1925 to 1963; the 2nd was only incorporated in 2010; by contrast, the 7th Amendment (right to jury trials in civil suits, etc) still has not been.
There is no evidence that the framers of the 14th Amendment ever intended the Supreme Court to engage in this rather arbitrary process of piecemeal “incorporation”-it is just something SCOTUS has made up out of whole cloth.
Double thanks
Except a number of the Federalist papers..
Not in the way that NRA nor gun rights activists think nor claim.
1. The Founding Fathers were devoted to the militia.[1]
2. The amendment’s primary justification was to prevent the United States from needing a standing army.[1]
3. The authors of the Bill of Rights were not concerned with an “individual” or “personal” right to bear arms.[1]
4. The Founding Fathers were very concerned about who should, or should not, be armed.[1]
Anyone wishing for a return to an original meaning of the Second Amendment — where no one was a professional soldier, but everyone would be required to participate in the militia — would find themselves far from the political mainstream.[1]
If you want to make an argument about founding documents and classical interpretation, that's fine, but then we're going to be required to adopt the Framers' intent (which is undeniable as summarized above when examining the minutes of the Constitutional Congresses), and ignore and remove any subsequently introduced individual right to bear arms,[2] and gun owners will be required to join the National Guard. I am all for it.
And I'm not sure why in this ruling "tradition" is given so much weight. There was no tradition of personal rights to arms until well, well after the turn of the 20th Century, so the NRA was very late to invent this tradition.[2] If 1968 is not old enough for tradition, then how is it that 1950 is? Is the 13th Amendment in jeopardy of being a violation of the somehow new legal supremacy of tradition?
[1] https://www.washingtonpost.com/news/made-by-history/wp/2018/...
[2] https://www.brennancenter.org/our-work/research-reports/how-...