Originally Posted by Veni Vidi Vici
http:///forum/post/2996826
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society atlarge. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Originally Posted by Veni Vidi Vici
http:///forum/post/2996830
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.Pp. 2–53.
(a) 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. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation capable of acting in concert for the common defense. The Anti federalists
feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf
Originally Posted by Veni Vidi Vici
http:///forum/post/2996851
The Supreme Court breaks down the terminology so nothing is left to debate:
1. Operative Clause.
a.
“Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rightsuse the phrase “right of the people” two other times, in theFirst Amendment’s Assembly-and-Petition Clause and inthe Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shallnot be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rightsthat may be exercised only through participation in some corporate body.5
b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of theright: “to keep and bear Arms.”
Before addressing the verbs “keep” and “bear,” we interpret
their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of theEnglish Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionarydefined “arms” as “any thing that a man wears for hisdefence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary
(1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter
Webster) (similar).
.
