what are the two schools of thought on second amendement rights?

Question

what are the two schools of legal thought on 2nd amendment rights

Answer 1

That's an incredubly broad and vague question...are there only two schools of thought??

According to wikipedia, it's an interpretation issue in the text of the amendment itself...some parties infer that the amendment preserves an individual right to bear arms while others say it preserves a self-defense right.
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

Personally, I think it's broader than that. The text of the Amendment itself is a mess:
"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. ”"

So...some people may think the right only attaches to the militia, which they interpret to be the Nat'l Guard. Others obviously think it's about an individual right to keep and bear weapons.

Case law on 2nd Amendment issues is notoriously sparse. The Supreme Court just heard arguments on a 2nd Amendment case (Parker v. District of Coumbia) and will hopefully clarify the issue soon (when the opinion is released).

Answer 2

The primary controversy, which is being considered shortly by the Supreme Court, is whether the right to keep and bear arms set out in the 2nd amendment is an individual right, or a collective right.

The individual point of view is that at the time of the writing of the 2nd Amendment the "militia" referred to in the amendment was basically all able-bodied men who, if needed, could assemble to provide a military force. Since militia had to provide their own weapons, individuals had to be free to keep weapons.

The collective point of view is that the 2nd protects the right of the States to have militia which today have morphed into the National Guard, and since the government arms the Guard there's no need for individuals to have weapons.

Richard

Answer 3

This question is easy to answer because they have gone through the federal court system. However both are wrong.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=dc&navby=title&v1=shelly+parker

will take you there, you need to log in.

However, one side (DC) says basically that the RKBA is only for those in the militia, and as the militia does not exist any more therefore guns can be banned.

Two fatal flaws. A) The militia does still exist and most people are in it, the unorganised militia sits alongside the national guard which together make up the milita.
B) If the militia does not exist, then there is even more reason to protect individuals to have arms, and for individuals to be in the militia in a time of need, because you never know when the govt is going to turn bad.

The other side, (Shelly parker et al) are using only the bear arm part of the case, to argue why citizens are allowed to KEEP arms!!! Go figure!!! However they won last time because there argument is less radical than the other DC argument.

"Essentially, the appellants claim a right to possess what they
describe as “functional firearms,” by which they mean ones that
could be “readily accessible to be used effectively when
necessary” for self-defense in the home. They are not asserting
a right to carry such weapons outside their homes. Nor are they
challenging the District’s authority per se to require the
registration of firearms."

Brings me to another point. Self defence and the 2A have nothing to do with each other. An individual can defend himself legally with an illegal weapon. Having self defence does not mean that guns are protected, and an individual has to be able to carry them. In fact, self defence is using whatever is at hand to protect oneself. Yes, you can use a gun to defend yourself, but it does not mean that the 2A protects self defence or that self defence protects guns, it is simply not sound logic.

Basically there are two schools, they are wrong, the "right" to keep arms is just that, no action possible, (with exceptions such as selling and buying and transport to or from the sale unloaded) the "right" to bear arms is the "right" to be in the militia, carry and conceal is not protected. It is there to protect the militia so it had personell and arms to defend the people against the govt.

It is simple, but people just don't seem to get it.

Answer 4

Basically, there is a collectivist interpretation that asserts the right to bear arms applies only to the various state units of the National Guard and an individual rights interpretation that asserts the right to bear arms is an individual right.

The collectivist interpretation arrives at it's conclusion by a convoluted line of reasoning, equating the 18th century militia with the modern-day National Guard. The argument is patently absurd. Today, the National Guard is essentially an extension of the Army and can be nationalized at any time with a stroke of the pen by the President, as its deployment to Iraq unequivocally demonstrates. The collectivist interpretation, therefore, reduces to the assertion that the military have a right to weapons, surely a proposition that needed no constitutional amendment to secure. The Bill of Rights is meant to codify certain limits on governmental power. The collectivist interpretation would have us believe that the Second Amendment actually confers power on the government--the right to keep and bear arms.

The individual rights interpretation is supported by every other fact we know about the Founders. Whenever the Constition speaks of "the right of the people" it means an individual right. For example: "the right of the people peaceably to assemble" and "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..." indisputably refer to individual rights.

The Second Amendment reads: "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."

The language is tortured and the punctuation incorrect, which is what opened the door to the collectivist interpretation. The reason it is so poorly written is Madison derived the Bill of Rights from the Virginia Declaration of Rights, Article XIII of which reads:

"XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power."

Madison thought the standing army and civilian control of the military were covered in the main body of the Constitution, so he used the rest of Article XIII to include a right to bear arms.

Answer 5

Good question. I think you may have misunderstood the intentions of that amendment written by our country's founding fathers. Yes, although the British were a potential threats, the main purpose of the amendment was for civilians to be able to defend themselves from an oppressive government. (Our founding fathers were much more involved with civil liberties than our current day presidents.) There are many scenarios where this may be necessary. In an emergency where police can not protect you (Katrina comes to mind), guns may be your last line of defense against looters and rioters. Another scenario may be if the police and the government decides to illegally arrest all political dissidents, such as when Hitler ordered the arrests of all Jews, guns may be your last hope. Although one may argue they are useless against an organized military, I would argue it is better than nothing. Nations with lower homicide/suicide rates have greater gun control? I would have to see some of your proofs. Even if this is true, you must look at other variables such as education, GDP, geography, culture, etc. I must question, if guns were unavailable, would the violent offenders have been able to commit similar crimes with other types of weapons?

Answer 6

there is more than two. like all con. law issues, there is originalist, constructionalist, and the progressionalist. there are more, but i can't remember them. i also can't remember if progressionalist is exactly the right term, but it is the same idea as the right term.

for 2nd amendment issues, the big split is whether the right is absolute. eg., are laws against concealed weapons etc., constitutional is the question., and can guns be made illegal w/o offending the 2nd, and to what extent can we burden the purchase or ownership of guns?