Here's a breakdown that shows my train of thought :



The 2nd amendment limits the authority of 'specifically the government'.

It is not an affirmative right to individuals, it is a denial of rights to the government.
It in theory prevents the government from taking any actions that would infringe on bearing arms.




So, let's look at scope.


If bearing arms is for government regulated militias :

Let's assume that 'well regulated' means 'well government regulated'. (i.e. Merely government regulated in practice.)

- A militia that uses arms as per the government's regulation, would be operating as the government wishes - it would *be* an extension of the government, and the government would not need to seize its arms. The 2nd amendment is moot.

- A militia that doesn't use arms as per the government's regulation, is not government regulated, and has no protection from government arms seizure. The government is free to deny this militia arms at the government's discretion. The 2nd amendment is moot.


In order for the 2nd amendment to not be moot, you would need to protect an entity that the government would *not* wish to be armed.

Since we're still talking militias, that leaves only "non-government-regulated militias" as a protected class of entities.
Hence, this would preclude "government regulated" as a possible definition of "well regulated", in regards to "well regulated militia".

So, we've established that for the 2nd to not be moot, only "non-government-regulated militias" can be in the set of 'well regulated militia'.




So, following on the idea of the 2nd amendment scope being for "well [non-government] regulated militias".

The government can then circumvent 2nd amendment protection by making illegal any 'non-government-regulated militias'. This would eliminate the entire category of arms protected entities. The 2nd amendment is moot.

Hence, for the 2nd amendment to not be moot via this path, that means that "well [non-government] regulated militias" must also be protected under the 2nd amendment.




So, without government regulation, a well regulated militia is subject to the regulation of its members.

As there is no government regulation on militia, there is also no government regulation regarding the quantity of militia members. You are then left with the ability of a single individual to incorporate a militia, and decide on his own regulations.

Which decomposes into de-facto individual rights





This is why the only consequential meaning of the 2nd amendment is one which includes these aspects :
A) Does not define 'well regulated" as "government regulated".
B) Does not restrict the individual.
C) Protects militias.

Any other meaning for the 2nd amendment would result in an emergent status quo that would produce the same circumstances as if there was no 2nd amendment in the first place. This would erase any purpose in having a 2nd amendment.





But sure, maybe the 2nd amendment is moot.
Maybe it was written out of sheer boredom, just to have something inconsequential to do with one's time.
Maybe it was a farce designed to fool people into thinking that it means something, while it is actually pointless and ineffectual - like saying the sky is up.




In any case, I think we can agree that, if the 2nd means anything, it is intended for facilitating the defense of the state against invading armies.

The fallout of that is that if the 2nd particularly protects any given category of arms, it protects specifically those that are meant for use in military combat. Not hunting, not self defense, etc.

A pistol ban would be of little military detriment for open combat, but would be the greatest harm to people's capacity for insurgency (because pistols can be hidden on a person).

A hunting rifle ban would also be of modest military detriment for open combat (can serve DMR role), but probably the least meaningful.

Arms with particular military applicability would be large capacity+select fire (prototypical infantry arms), or accurized of any capacity (dmr/sniper).
Basically, the arms of greatest consequence to the 2nd amendment are precisely the ones most targeted for regulation.

-scheherazade

(I edited, and some stuff pertains to your reply)

Regarding well regulated, here's the sauce :
http://www.constitution.org/cons/wellregu.htm

Keep in mind that the 2nd amendment is 2 part.
1st the motivation for why the rule exists, 2nd the rule.

The rule exists, whether or not the motivation is provided (and it's nice of them to provide context - but not necessary).

Even if regulation was meant in the modern sense, it would not change the fact that the rule does not depend on the motivating factors.

But if you insist on motivational prerequisite, here's Hamilton regarding individual right to bear :

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "
[etc]

(That last sentence - there's your training requirement, tee hee. Not only that, but that they should assemble people 1-2 times a year to make sure that everyone is armed and equipped. That's more than an individual right to bear, that's an individual requirement to bear. Let's just be happy with it being a right.)


Laws are supposed to be updated by new laws via representative legislators (who may need to be coerced via protest facilitated by freedom of assembly).
Or challenged by juries (i.e. citizens, i.e. members of the state) via jury nullification (i.e. direct state democracy). That's why there are juries. You need direct state involvement so that the legal system can not run amok independent of state sanction. It's not just for some group consensus.
The system was architected to give the state influence, so that government can't run off and act in an independent non-democratic manner.

-scheherazade

According to separation of powers... and the roles defined for each branch.

Parsing words is fine.
Persons vs people is moot. People = multiple persons. Unless your intent is to give a right to a single individual, you're always dealing with people.

The flip side is that if the 2nd amendment only protects militias and their armament, then it protects militias. So you are free to start a militia and get armed.
(Again, by 1791 parlance, well regulated meant well adjusted. There is no prerequisite for government regulation re the 1791 English it was written in.).


"well, they wrote X, but clearly the intent was to also cover Y and Z" doesn't work when :
- Y and Z did not even exist at the time of X.
- Y and Z did exist, and the writers chose not to include them.
In either case, you end up legislating from the bench.

It's a simple matter to make a new law covering Y and Z. There is no need for a court to jump the gun. Just find the case by the classic scope, and inform the legislature of the circumstances so they can take it into consideration. Heck, there is no guarantee that the legislature even wants the scope expanded. They could even want it contracted.
If it becomes a complicated matter with parties arguing - then it clearly needs debating and would have been inappropriate to decide elsewhere.

As a republic, the people are the state, and the state has all authority. The government exists strictly to record, execute, and enforce the state's will, by the state's authority (govt. has no authority inherent to itself).
The legislature is the channel that codifies the state's will. No other functional element serves that purpose. To codify something, it must go through the legislature. Else it does not carry state authority.

-scheherazade

Both. They must interpret the meaning/definition of the law before they can interpret whether actions are in compliance.
No, that IS judicial scope. It's what those that lose call 'judicial activism', but you never hear a winner call it that.
Judges interpret the words AND the meaning of laws. They often 'read between the lines' to determine what they think was intended, not just what was specifically written. That's not new or out of line, it's how it's always worked.
True, it creates a minefield of interpretation of written laws that may not completely jibe with the exact verbiage in the written laws, but they are documented in the decisions.
No, I'm not forgetting those laws, I'm disputing your statement that "Again, it's a matter of what people are willing to enforce.....If everyone is on board with twisting the rules, then that's the norm." Populist feelings do NOT effect the law, only legislation and interpretation do.
Until recently, there was nothing to show that the 2nd amendment addressed individuals. That's why Washington DC had a complete hand gun ban, and that case is what changed the meaning to include individuals instead of simply regulated militias.
Eminent is a word I might use to say 1) conspicuous or 2)prominent (especially in standing above others in some quality or position). I think the latter is how it's used in this case, not the former. EDIT: I expect most people confuse it with the word "Imminent".
My mother is a professional editor, so I admit I'm more familiar with odd words than many people. (Most people didn't have to read the dictionary or encyclopedia while they sat in a corner for being bad as a child). I think if you ask the populace about many legal terms, or really any >3 syllable word, most people won't know the actual definitions.

The crux of the matter is 'shall not infringe' vs shall not infringe - unless <name exception>'.

If you obey that law literally (constitution is law after all), then most prerequisites to gun ownership are non-starters.

Historically, legislators break that [constitutional] law here and there, but the absoluteness of the statement makes it hard to put up much in the way of hurdles.

As an aside, statements in the bill of rights are terse and without exception for a reason. When you enshrine exceptions, you allow for recategorization of legal constructs as subsets of those exceptions. Which in effect neutralizes the protection, and makes it meaningless.

So, if there was "freedom of speech - unless it causes distress" : then anything that people want to silence would simply be judged as distressing, and that would be the end of freedom of speech (you'd only need people hearing the case to consider it distressing in their opinion). The lack of exceptions empowers people to more easily argue against laws that infringe on those rights - given that there is no real 'easy-out' for infringing laws.

The NRA is the force that guards the 2nd amendment, backed by the people that want it protected (gun owners and gun industry alike). It's their place to push for the strongest 2nd amendment possible. That's their rightful purpose. Other entities can argue against them. We have an adversarial legal system, and that's the nature of the beast.

I'm confident that if there was an amendment protecting the right to drive a car on public roads, then driver's ed requirements would be under legal challenge, too.

-scheherazade

To address your points

"Did you even read the article I linked?"
Sorry, I didn't. I opened it, but I really don't have time to read a 40-page law review article.

"In other words, you're flat out wrong when you say the 2nd amendment wasn't about self-defense".
Ok, we can agree to disagree there, but the point still stands that the statement "The WHOLE point of the second amendment... is so we can defend ourselves" (emphasis mine) is incorrect. I'll grant you it might be PART of it.

"I'm not sure why your tone is so dismissive in this thread."
Because I'm tired of trying to convince Americans to stop murdering each other.

"you're quite lucky to live in a country where your government protects you from growing your own food by throwing all those dangerous gardeners in prison. "
Please tell me you realise that's satire because your tone kinda makes me think you're taking that seriously. No, gardens are not illegal in NZ. Almost everyone I know grows some of their own food (at least, those of us lucky enough to afford a house with a garden).

"New Zealand has a shit-ton of guns (about one for every four people)"
Agreed. I even previously brought this up myself.

"people own them for a variety of reasons, from sport"
I know, I have friends who target shoot and hunt

"to self-defense"
cue wrong buzzer sound effect.

To get a gun in NZ you need a Firearms licence. To get this , you will be interviewed, and

You will have difficulty being deemed 'fit and proper' to possess or use firearms if you have:
...
indicated an intent to use a firearm for self-defence.

Have some people (shock, horror) lied to the cops to get a licence? Probably, but in general, no-one here actually wants a gun for self-defense.

Look, I have no problem with people using guns. I just think that maybe you could all stop fetishising them so much and realise that you live in the 21st century and not the old west.

Personally, I'm with Jim Jeffries on this one.
*related=http://videosift.com/video/Jim-Jefferies-on-gun-control

@ChaosEngine

Did you even read the article I linked? It makes a pretty strong case that at the time the wording was intended to imply every citizen's responsibility as well as right for "collective self-defense," as in everyone should own a gun so they can help out in the event of an invasion.

In other words, you're flat out wrong when you say the 2nd amendment wasn't about self-defense--that's precisely what it was about. It wasn't about personal (i.e. individual) self-defense at the time of its inception but it has since been found to include that meaning because the idea that people should keep guns at home but only use them to defend against foreign attackers and not domestic ones, such as a home invader, was found to be patently absurd. And yes, eventually militias faded away, but the idea that citizens have a right to own firearms for sport or protection--whether it be from wildlife or other humans--had already been legally established for a long time.

I'm not sure why your tone is so dismissive in this thread. You live in New Zealand, am I correct? Yes, you're right, you're quite lucky to live in a country where your government protects you from growing your own food by throwing all those dangerous gardeners in prison.

Look, New Zealand has a shit-ton of guns (about one for every four people) as well and people own them for a variety of reasons, from sport to self-defense. You have a lower crime rate, which can be attributed to a variety of factors but not conclusively to the strict gun laws, as people in New Zealand do in fact still commit crimes with guns.

So... what's the point you're trying to make?

You should read the prince. Look at what people did throughout history, and look at what we and other nations do today.

At some point, you have to realize that nothing has changed. Technology has moved on, but we're still the same monkeys that were around before, and we're still behaving the same way.

Nations don't last. You can be on top for a couple centuries, but afterwards you fall down the totem pole. Most places on earth spend most of their time getting crapped on. It's a special time when they get to crap on others.

Regardless, the 2nd amendment was made with the awareness of the human condition. The perpetual dissatisfaction that drives people to strife. Peace is not everlasting. Even if you behave well, there's always a group that comes along to bring trouble.

A gun behind every blade of grass is the best possible method for national security there is. A nation with a broke government in turmoil will not have an organized military. But an armed people still represent a massive discouragement to any candidate occupier.

The west has had a good run for the past few decades. But it's never lasted before, and it won't last this time. It may not be in our lifetime, but things will eventually go belly up.

Then again, it could be in our lifetime. Europe is getting rapidly nationalistic under immigration pressures. US/Europe are poking Russia in the eye with missile installations and military exercises (maybe to rile them up and get people focused more on Russia and less on the immigrant crisis - common enemies are the best unifiers). You never know. Historically, when things go to hell, they were ~always fine not so long prior.

You don't have to worry about these things. They'll happen when they happen. History doesn't care either way.

2nd amendment can look like an anachronism during a period of quiet. But eventually it will make perfect sense again.

-scheherazade

Look... let's all agree on this...

The american founding fathers did some really great stuff. Wonderful.

But they're fucking human, and the 2nd amendment was unbelievably short-sighted.

The constitution is not something to mess with willy-nilly, but it CAN and it SHOULD be updated from time to time.

Lawrence Wilkerson's dismissive comments about self defense are very disrespectful to people who have had to resort to self defense. He wouldn't say things like that had he been unfortunate enough to have had such a personal experience. (As one parent of a Fla victim said - his child would have given anything for a firearm at the time of the event.)

Re. 2nd amendment, yes, it's not for pure self defense. The reasoning is provided within the text. The government is denied legal powers over gun ownership ('shall not be infringed') in order to preserve the ability of the people to form a civilian paramilitary intended to face [presumably invading] foreign militaries in combat ('militia').

It's important to remember that the U.S. is a republic - so the citizens are literally the state (not in abstract, but actually so). As such, there is very little distinction between self defense and state defense - given that self and state are one.

Personally, I believe any preventative law is a moral non-starter. Conceptually they rely on doling out punishment via rights-denial to all people, because some subset might do harm. Punishment should be reserved for those that trespass on others - violating their domain (body/posessions/etc). Punishment should not be preemptive, simply to satiate the fears/imaginations of persons not affected by those punished. Simply, there should be no laws against private activities among consenting individuals. Folks don't have to like what other folks do, and they don't have to be liked either. It's enough to just leave one another alone in peace.

Re. Fla, the guilty party is dead. People should not abuse government to commit 3rd party trespass onto innocent disliked demographics (gun owners) just to lash out. Going after groups of people out of fear or dislike is unjustified.







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As an aside, the focus on "assault rifles" makes gun control advocates appear not sincere, and rather knee-jerk/emotional. Practically all gun killings utilize pistols.

There are only around 400 or so total rifle deaths per year (for all kinds of rifles combined) - which is almost as many as the people who die each year by falling out of bed (ever considered a bed to be deadly? With 300 million people, even low likelihood events must still happen reasonably often. It's important to keep in mind the likelihood, and not simply the totals.).

Around 10'000 people die each day out of all causes. Realistically, rifles of all sorts, especially assault rifles, are not consequential enough to merit special attention - given the vast ocean of far more deadly things to worry about.

If they were calling for a ban+confiscation of all pistols, with a search of every home and facility in the U.S., then I'd consider the advocates to be at least making sense regarding the objective of reducing gun related death.

Also, since sidearms have less utility in a military application, a pistol ban is less anti-2nd-amendment than an assault rifle ban.







As a technical point, ar15s are not actually assault rifles - they just look like one (m4/m16).
Assault rifles are named after the German Sturm Gewehr (storm rifle). It's a rifle that splits the difference between a sub-machinegun (automatic+pistol ammo) and a battle rifle (uses normal rifle/hunting ammo).

- SMG is easy to control in automatic, but has limited damage. (historical example : ppsh-41)

- Battle rifles do lots of damage, but are hard to control (lots of recoil, using full power hunting ammo). (historical example : AVT-40)

- An 'assault rifle' uses something called an 'intermediate cartridge'. It's a shrunken down, weaker version of hunting ammo. A non-high-power rifle round, that keeps recoil in check when shooting automatic. It's stronger than a pistol, but weaker than a normal rifle. But that weakness makes it controllable in automatic fire. (historical example : StG-44)

- The ar15 has no automatic fire. This defeats the purpose of using weak ammo (automatic controlability). So in effect, it's just a weak normal rifle. (The M4/M16 have automatic, so they can make use of the weak ammo to manage recoil - and they happen to look the same).

Practically speaking, a semi-auto hunting rifle is more lethal. A Remington 7400 with box mag is a world deadlier than an ar15. An M1A looks like a hunting rifle, and is likewise deadlier than an ar15. Neither are viewed as evil or dangerous.

You can also get hunting rifles that shoot intermediate cartridges (eg. Ruger Mini14). The lethality is identical to an ar15, but because it doesn't look black and scary, no one complains.

In practice, what makes the ar15 scary is its appearance. The pistol grip, the adjustable stock, the muzzle device, the black color, all are visual identifiers, and those visuals have become politically more important than what it actually does.

You can see the lack of firearms awareness in the proposed laws - proposed bans focus on those visual features. No pistol grips, no adjustable stocks, etc. Basically a listing of ancillary features that evoke scary appearance, and nothing to do with the core capabilities of a firearm.

What has made the ar15 the most popular rifle in the country, is that it has very good ergonomics, and is very friendly to new shooters. The low recoil doesn't scare new shooters away, and the great customizability makes it like a gun version of a tuner-car.

I think its massive success, popularity, and widespread adoption, have made it the most likely candidate to be used in a shooting. It's cursed to be on-hand whenever events like Fla happen.

-scheherazade

Perhaps the 2nd amendment has just been taken out of context, maybe it's the right to "bear arms". So when you hunt bears you get to keep it's arms.


Or maybe it was a spelling mistake, and it's the right to "bare" arms. So everyone has a right to roll up their sleeves and wear singlets.


Either way basing your lifestyle on a out-dated document that is clearly not relevant to modern society, you might as well be praying to Zeus.

2nd amendment.... why can't they just amend it again?

True, the constitution has some screwed up parts. However, there is a process in place to make or change amendments. If the bulk of the United States decides to repeal the 2nd Amendment, using the methods in place to do so, so be it. I'd give my guns up in that case. If the legislature decides to pass an unconstitutional law as a knee jerk reaction to a terrorist act, then they aren't getting them. The problem with unconstitutional laws, by the way, is that SCOTUS can always wink at the bill of rights and say that it is constitutional. I don't care for that, but again, it is a legal interpretation of the document if they do it. I'd give up my guns if that happened.

I don't even really have an issue if we go back to the assault weapon ban of the 90's. I get that we can make some changes and cut down on these incidents. I'm just extremely leery of package deals like lets ban everyone who ends up on a list from having weapons based on a government decision. You give someone due process to avoid being on the list, like we do to people accused of felonies before they are convicted, no problem. But as it stands, our President is just tossing an idea out there that absolutely violates multiple rights and people are eating it up like it was candy.

Of course no one is talking about a full gun ban. However, once you compromise the 2nd Amendment, you place the decision in the hands of our legislature. You know, the super functional branch of our government that never makes mistakes. You also allow them to decide 'what' you need.

I've not been to NZ, but I seriously doubt that the cultural dichotomy that is present in the USA is remotely represented in NZ.

I support abortion rights, I support gay marriage, I would love to be able to trip out to the local head shop and buy some weed, and I don't think heavily restricting guns would solve the issues we are looking at. The last two mass shootings were terrorist related. Prior to that, they have primarily been mental health related. We have one of the worst mental health policies and systems in the world. Medicate first, don't hospitalize, don't provide therapy, and other such bright ideas. Ever since we passed the Community Mental Health Centers Act of 1963, homelessness and acts of violence by the mentally ill have been on the rise. Inpatient centers have become rare and, like I said, most people get a pill and a swift kick in the ass out the door. I would be willing to bet if we fixed our health care issues in regards to the mentally ill and maybe put a 15 day waiting period on the purchase of ANY gun, we would stop 99% of these mass shootings.

It doesn't work like that. What you end up with is something akin to Australia's gun laws, which 'technically' still allow certain people to own guns, realistically most won't or can't

Category A: Rimfire rifles (not semi-automatic), circuit loaded firearms. shotguns (not pump-action or semi-automatic), air rifles including semi automatic, and paintball gun. A "Genuine Reason" must be provided for a Category A firearm. [AKA, you have to prove you have a reason to own these weapons. Newsflash, the majority of police will automatically deny you. Oh yeah, for a PAINTBALL gun as well.]

Category B: Centrefire rifles including bolt action, pump action, circuit loaded, and lever action (not semi-automatic), muzzleloading firearms made after 1 January 1901. [Same as Cat A, must have a 'genuine reason' to own one, be registered, have a fee, ton of other limitations, so basically hard to own]

Category C: Pump-action or self-loading shotguns having a magazine capacity of 5 or fewer rounds and semi automatic rimfire rifles. [Only Primary producers, farm workers, firearm dealers, firearm safety officers, collectors and clay target shooters can own functional Category C firearms.]

Category D: Self-loading centrefire rifles, pump-action or self-loading shotguns have a magazine capacity of more than 5 rounds. [Functional Category D firearms are restricted to government agencies, occupational shooters and primary producers in some states. Collectors may own deactivated Category D firearms.]

Category H: Handguns including air pistols and deactivated handguns. [This class is available to target shooters and certain security guards whose job requires possession of a firearm. To be eligible for a Category H firearm, a target shooter must serve a probationary period of 6 months using club handguns, after which they may apply for a permit. A minimum number of matches yearly to retain each category of handgun and be a paid-up member of an approved pistol club. Target shooters are limited to handguns of .38 or 9mm calibre or less and magazines may hold a maximum of 10 rounds. Participants in certain "approved" pistol competitions may acquire handguns up to .45", currently Single Action Shooting and Metallic Silhouette. IPSC shooting is approved for 9mm/.38/.357 sig, handguns that meet the IPSC rules, larger calibres such as .45 were approved for IPSC handgun shooting contests in Australia in 2014. Barrels must be at least 100mm (3.94") long for revolvers, and 120mm (4.72") for semi-automatic pistols unless the pistols are clearly ISSF target pistols; magazines are restricted to 10 rounds.]

Category R/E: Restricted weapons, such as machine guns, rocket launchers, full automatic self loading rifles, flame-throwers, anti-tank guns, howitzers and other artillery weapons [Obviously this class is right out...]

You can own some muzzleloading weapons without restrictions, although percussion cap pistols are restricted. In addition to these minor rules, all guns must be secured in a safe or other similar location, all must be fully registered so that the government knows the location of every single weapon/owner, and you can't sell them to another person, only to a dealer or the law to be destroyed.

After a few years of de-fanging and getting the citizens used to not having weapons, the Australian government and law enforcement routinely quietly hold gun buybacks to persuade more people to give up their weapons. They also do amnesty turn ins now and then.

So, that is the AMAZING suite of laws Australia put in place to stop mass shootings. Forgive me if, when combined, those type of laws would basically neuter the 2nd amendment. We've already neutered the 1st with 'hate speech' and the ability to sue over getting your feelings hurt. The 4th has been steadily under attack, because GOOD citizens shouldn't mind if the government rummages through everything you own or do. We haven't messed with the 5th amendment too much, so we could look at that next, maybe allow torture of everyone for confessions.

I'm getting tired of listing points, so let me just say this. I am incredibly sorry that people died, they shouldn't have and it is an utter shame. However, we are already fighting on a daily basis to keep a facsimile of the rights that were fought for when we built this country. Watering them down further only helps our government tighten the bonds of enslavement upon us. I can't agree with that.