Well, this is currently done through the commerce and taxing powers that Congress is enumerated with. But again, I have to admit that the recent Supreme Court cases have made it such that I honestly don’t have a clear idea of what they think can be regulated and what can’t (and by whom). But if we were going to realize our dream of a new amendment, maybe that type of thing could be addressed?
We both know that clause was never intended to give the fed carte blanche over anything and everything, which is exactly what the expanded (after 150 years as a nation) "interpretation" does. Banning particular goods across the land is not regulating commerce. It completely shuts down commerce, rather than ensuring it functions smoothly. Regardless, it doesn't supersede the Bill of Rights. If it did then the feds can similarly outlaw whatever news stories they like. And pornography. And religions organizations.
We certainly did not “obliterate” it in any form or fashion. Let’s look at the Constitution. When one begins to read the Bill Of Rights, you will first encounter individual rights, which “Congress shall make no law” to abridge: things like the right to free speech, or freedom of religion. These are individual rights: I have the right to free speech, and likewise so do you. But then it introduces the phrase “The People,” to assert a collective right: the right to peacefully assemble. The group that is peacefully assembling would of course be made up of individuals—but the right is collective.
Why include the opening clause at all? Scalia calls this a “prefatory clause.” I’m no groundhog expert, but I understand it instead to be an “absolute phrase”—a group of words that modifies the clause as a whole. If the 2A was an individual right, then why not just: “The right of the people to keep and bear arms, shall not be infringed”? Why have the opening clause at all?
It’s interesting that you bring up US v Miller, as it’s Miller that lead to this “collective rights theory” being understood as precedent. You said that Miller was about the weapon—but what specifically about the weapon? If Miller was a federal case, and the federal government can’t infringe an individual right to bear arms, then why was Miller decided as it was? It’s because the weapon bore no resemblance to common use weapons used in militia service, and that’s where the 2A Protections lie—with the collective right.
Your first paragraph is a distinction without a difference. As you point out, to disallow the individuals from assembling is to disallow assembly altogether. Saying that the group can exist but no individuals may join is absurd. Fwiw, free speech and freedom of the press are not solitary activities. Both require a listener or audience. It's the conveyance of ideas from an individual to another, or group of individuals, that's protected. In isolation, an individual can keep and bear arms far more meaningfully than one can partake in freedom of the press.
Regarding your second paragraph,
here's about a 15 minute read that answers why the mention of well-regulated militia was included. As to Miller, you've left me a little confused. In the very short decision rendered, there is no claim that Miller (who was unconnected to any militia) had the right to keep and bear arms. What the federal government asserted was that his short-barreled shotgun was not among the arms protected by the 2nd. Whether you agree or disagree with the decision, it's not about him as an individual having the right, it's about what he exactly has a right to.
This is tough. There are some similarities with the abortion issue, but also some key differences. In both issues, we have very controversial court decisions that people don’t want to abide by and want overturned. Here are the key differences that I see:
- Before Roe, the issue had never been decided before. When it came back before the Court in Planned Parenthood v Casey, it was upheld, and we have a framework for it (viability). So when someone passes a Fetal Heartbeat Bill, they do it specifically to chip away at the right and they know damn well that the Heartbeat Law runs afoul of it.
With the 2A, several things were decided in Presser, Cruikshank, and Miller. From 1934 until 2008, no 2A case came before the Court. When it did, they overturned key parts of all 3 cases, and gave us no framework to understand their interpretation. Scalia mentions limits, but only gives examples that we already know (felons not having the right, or mentally ill, etc). If you and I decided that we wanted to write a bill to curtail gun violence that did not violate the 2A, could we do it? I honestly don’t know. It’s very hard to know.
- With the 2A, we have what I consider to be a “broken” amendment. It’s become obsolete, and it’s causing great problems. If we try to pass a new amendment but fail, that unfortunately doesn’t solve our issue. I don’t know what the answer is in that situation. Again, a better framework from the Court would be helpful. We’re essentially depending on them atm, because how the 2A applies to today’s society is nebulous at best. There’s no such issue with abortion.
We don't need to go down the rabbit hole comparing these rights and to what extent they are protected. The important point of comparison is folks not accepting the rights of others, not making an honest attempt to amend the Constitution as prescribed, and driving a big wedge between the population in the process.
I didn’t say that citizens never have to defend their home or business with force—that certainly happens from time to time. And certainly, I support the right of a person to use a firearm in certain instances for self defense. Regarding militias, you, me, and Scalia all agree that the opening clause sets out the purpose of the amendment: the reason that “the people” have the right to keep and bear arms is to serve in a well-regulated militia, as it’s “necessary for the security of a free State.” Even Scalia (in the Heller decision agrees) with the previous Presser decision and acknowledges that the 2A “does not prevent the prohibition of private paramilitary organizations.” Presser stated that there was no 2A violation when a state prohibited private organizations from forming military groups. And these are prohibited, in some fashion, in all 50 states. In WI—where I live, incidentally—it is illegal to act as a private militia. This source from a Georgetown Law states (regarding WI), “Groups of armed individuals that engage in paramilitary activity or law enforcement functions without being called forth by a governor or the federal government and without reporting to any government authority are acting as unauthorized private militias.”
https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2020/09/Wisconsin.pdf
Further, US code states that the organized militia is the National Guard. So I don’t think Rittenhouse has any argument at all for having 2A rights related to a militia. None whatsoever.
Rittenhouse—who may have his bond modified for recently flashing a White Power sign—
may have some argument for self defense, but I am not even so sure of that.
https://www.nbcnews.com/news/us-new...ed-white-power-signs-bar-prosecutors-n1254250
It’s a tough case. This isn’t a store owner defending his shop like in the Rodney King riots, or a person defending his home from a violent burglar.
I agree that's the stated purpose as to the 2nd's inclusion, not that it's the sole reason for protecting the right (eg. self-defense, hunting, target shooting). Just the reason that pertains to the formation of the federal government. I agree with Presser on a couple things. One is that the 2nd imposes a restriction on only the federal government. The other is that the militia system relies on an individual's right to keep arms.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Believing "the people" really means state governments, the above would make no sense. One would have to believe the federal Bill of Rights contained an Amendment that prohibited the state from disarming itself. The states' role in national defense is outline elsewhere in the Constitution, and this sort of provision is a duty owed to the federal alliance, not a freedom from it.