Tim,
I was just about to beg off the discussion (time constraints and the risk of circular
argument) and ask
other people for their point of view when Melanie jumped in. Good. I hope she will
inspire others.
I just want to comment on the the trend in the interpretation of the second article of
the Bill of Rights
and that is that I believe this is an artefact of the elected Judiciary. Elected
judges have to be sensitive
to the loudest community opinions and they also have to raise the funds to run. The
NRA fills both these
positions very well. I dare say that if judges were appointed and had the ability to
be more concerned about
the intent of the law and not their reelection they would find differently with
respect to article two (the
right to bear arms).
Cheers,
Trudy
tdunlop wrote:
> Apologies in advance for the length of this, but I tried to keep the context
> throughout and it starts to get a bit unwieldy! Anyway, it's good to have a
> forum for such discussions.
> >
> >tdunlop wrote:
> I thought this was the case too, but it isn't true. The idea that the 2nd
> ammendment is about the right to be armed within a militia as opposed to as
> an individual citizen is not supported by virtually any current legal
> opinion in the US. I only know this because I happen to a have read a few
> things about it recently, including a brilliant article by Daniel Lazare who
> wrote a book called The Frozen Republic: How the Constitution is Paralyzing
> Democracy. He quotes chapter and verse of the historical and current
> interpretation of the 2nd and it is clear beyond a shadow of a doubt that it
> bestows the right to bear arms on the individual. I'll just quote a little
> to show the (to me surprising) extent to which this "individualist"
> interpretation has grown recently. Lazare writes: "Although the Supreme
> Court has not ruled on the Second Amendment since the 1930s, it has
> repeatedly upheld gun control measures. But there is evidence that judicial
> sentiment is beginning to take heed of the academic change of heart. Two
> years ago, Supreme Court Justice Clarence Thomas indicated that he thought
> it was time to rethink the Second Amendment; Justice Antonin Scalia
> apparently thinks so as well. Then, just this past April, two weeks before
> Eric Harris and Dylan Klebold shot up Columbine High School, a federal judge
> in a Texas gun case issued a ruling so enthusiastically "individualist" that
> it was virtually a brief in favor of what is now known in academic circles
> as the "Standard Model" of the Second Amendment. "The plain language of the
> amendment," declared Judge Sam R. Cummings, "shows that the function of the
> subordinate clause [i.e., the portion referring to a well-regulated militia]
> was not to qualify the right [to keep and bear arms], but instead to show
> why it must be protected." Rather than mutually exclusive, the collective
> right to join a state militia and the individual right to own a gun are,
> according to Cummings, mutually reinforcing. Although anti-gun groups
> predicted that the decision would soon be overturned, it is clear that a
> purely collectivist reading is becoming harder and harder to defend; the
> individualist interpretation, harder and harder to deny."
>
> As to how easy it is in the US to change the constitution: it takes a 2/3
> majority of both houses plus three quarters of the states to, as Lazare puts
> it 'change so much as a comma'. So "as few as thirteen states -
> representing...as little as 4.5 percent of the total US population - would
> be sufficient to block any change." His conclusion, at least about the 2nd
> is that "we the people" are "powerless" to change it.
>
> The overall point I'm making - and it doesn't really contradict anything
> Trudy has said - is that a bill of rights is no panacea. I'd like to see us
> have one, but I would still like to see parliament retain the final power of
> ammendment. That way we are less likely to have the impass described by
> Lazare over the 2nd.
>
> So I just hope that, however the referendum goes, we get an ongoing chance
> to look at constitutional issues. In the meantime I'll vote yes to break
> the British monarch nexus and deal with other matters after that - and
> hopefully sooner rather than later.
>
> Tim
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