No, the beatings will continue for as long as you fail to respect the law. If you want to forbid gay marriage, it's very simple: repeal the fourteenth amendment. (Good luck with that.)
It's like I tell my liberal friends: if you want to regulate guns, it's very simple: repeal the second amendment.
So according to this ruling, the right for two men to marry has been "lurking" in the Constitution since 1868, right? But we just now discovered it? What I mean is that if someone had brought this case before the Supreme Court in 1870, the legally correct decision would have been to allow gay marriage? Things like that make me wonder what other "rights" (scare quotes because they are things that would not be considered rights today) are hidden in the Constitution, that will be discovered 150 years hence but would shock the conscience of nearly everyone alive today.
Alright, I'll bite: Historically, the second Amendment was meant to to refer to guns being allowed inside of a well-regulated militia. This is accomplished by the states' National Guards. It was not intended to mean that each person gets to have a gun.
This, according to America's Constitution: A Biography by Akhail Reed Amar. Great read, it walks the reader in a novel-type way through each part of the Constitution.
But, we've expanded the 'meaning' of the Constitution several times in ways the founders would have never anticipated. This in like with the 'living document' aspect, and a direct result of our veneration of document that is quite short.
> It was not intended to mean that each person gets to have a gun.
Actually, that is exactly what it was intended to mean. And that's exactly what it does mean according to the Supreme Court. The whole point of the second amendment is that The People do not need permission from the government to have arms. (Don't forget, the country was founded on the basis of a violent revolution against the then-exitisting government!) It's unfortunate the that founders confused the issue by putting some of their rationale into the text of the amendment. But the operative language of the amendment is clear: the right of the People to keep and bear arms shall not be infringed. Full stop.
Back then there were technological limits to how much damage one crazy person could do even if they did have a gun (and economic limits too -- guns were expensive. Only the rich could afford them.) It's unfortunate that the founders did not have the prescience to foresee the day when these limits would go away and a single crazy person could do an awful lot of damage. But for better or worse, that's our legacy.
Let's keep in mind that the Supreme Court, though we rely on them to interpret the Constitution, very often does so against what the founders had intended: take the example in my other comment, Heart of Atlanta Motel v. U.S., where the court unanimously decided that the state can force a business to serve black people under the Interstate Commerce Clause. The Supreme Court ruled that the Second Amendment allows people not members of militias to own guns. This was not the intention of the Amendment. My objection to your comment is that it betrays an attitude that whatever we do with the Constitution is what was Meant To Have Been Said, when in fact the Constitution is a living, breathing document that is constantly re-interpreted to meet our current needs.
Also, I do not find your dual argument -- that the Founders made their intention clear and also convoluted their intention -- particularly convincing. The Founders made quite a few mistakes when they drafted the Constitution[0], so their veneration as authors of the document seems quite overblown.
[0] Ackerman, Bruce. "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy"
I didn't say the founders' intent should be venerated, or even necessarily taken into account. But you made a claim about their intent ("It was not intended to mean that each person gets to have a gun") and I was responding to that.
People can (and do) argue about the founders' intent, and people can and do argue about the consequences of controlling weapons, or failing to do so. But two things are inarguable: 1) the plain text of the amendment, notwithstanding the explanatory preamble, says that "the right of the People to keep and bear arms shall not be infringed", period, end of story. And 2) the currently operative Supreme Court ruling supports #1.
The real problem with this debate is that both sides are hypocritical. The liberals argue that the 2nd amendment doesn't mean what it plainly says, while conservatives argue that it does mean what it says while tacitly conceding that some limits on personal weaponry (like nukes or ground-to-air missiles) are nonetheless necessary and reasonable. The only real disagreement is over where to draw the line. But until everyone agrees that that's what the argument is really about we're not likely to make any progress.
>I didn't say the founders' intent should be venerated, or even necessarily taken into account.
Hm. I'm a little confused. How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?
Additionally, it's not pertinent to disclude the "explanator preamble" because, as you say, it's explanatory. The clause and the Amendment itself comes before an Amedment that speaks of quartering troops in peace time. It's clear that the writers intended the clause to be read in the context of militas.
"Equally anachronistically, individual rightists read “the people” to mean atomized private persons, each hunting in his own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of “the people” rather than “persons,” the collective connotation was primary. In the Preamble, “the People” ordained and established the Constitution as public citizens meeting together in conventions and acting in concert, not as private individuals pursuing their respective hobbies.”
[..]
“Founding history confirms a republican reading of the Second Amendment, whose framers generally envisioned Minutemen bearing guns, not Daniel Boone gunning bears. When we turn to state constitutions, we consistently find arms-bearing and militia clauses intertwined with rules governing standing armies, troop-quartering, martial law, and civilian supremacy. A similar pattern may be seen in the famous English Bill of Rights of 1689, where language concerning the right to arms immediately followed language condemning unauthorized standing armies in peacetime. Individual-rights advocates cannot explain this clear pattern that has everything to do with the military and nothing to do with hunting. Yet states’ rightists also make a hash of these state constitutional provisions, many of which used language very similar to the Second Amendment to affirm rights against state governments.”
Amar, Akhail-Reed. "America's Consitution: A Biography." 736-737
I'm not making any claim about how the clause "should" be read, only pointing out that the current reading of it was decidedly not the intention of the writers themselves. Further, to pull it out of context and make a claim about its meaning 'full stop' is to ignore the nuance of the document as well what those words would have meant when the document was drafted.
> How can you make a claim about what the intention of the clause was ("Actually, that is exactly what it was intended to mean") without claiming that Founder's intent should be taken into account?
It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.
> It's clear that the writers intended the clause to be read in the context of militas.
No, it is manifestly unclear. That is the only reason we're arguing about it, because it's unclear.
It depends on whether the question on the table is, "What did the founders think?" or "Should what the founders thought carry any weight?" The intent is obviously salient to the first question, not necessarily to the second.
The question on the table is "What did the Founders think?" I pretented cited, historical evidence of the context of the clause which make clear what the Founders thought. We're arguing about it because you do not find that evidence compelling, and I'm attempting to tease out where you've gotten your facts about this intent. I'll have to dig up the SCOTUS case for the DC handgun ban being overturned (2007?) to see why Roberts believed in an individual right, or believed that it was to be found in the Founder's intent. You appear to be basing yours on our 2015 grammar rules, which doesn't quite cut it if we're going all way back to 1787. Also, keep it mind it was manifestly clear for years before it was challenged in court :)
That's true, but it doesn't mean what you think it means. In context (both textual and historical) it means "well-functioning", not "constrained." i.e. it means "In order to have a well-function militia, the right of the people to keep and bear arms shall not be infringed." And the Supreme Court has (correctly IMHO) upheld this interpretation.
I'm all for repealing the Second Amendment. I am vehemently opposed to trying to do end-runs around it.
how are the rights of 8 year olds protected that they can't go to a gunshop unattended and buy a gun? or a convicted felon? how can something be a "right" if it's revocable? how is the word "arms" defined? Why can't I purchase a grenade launcher (after all, if you really want to build a "militia" capable of defending against the British re-invading, you're going to need them)? The 2nd amendment in practice is subject to tremendous levels of regulation. The kinds of regulations most Americans want, e.g. simple waiting periods to allow background checks, are a tiny frill of a regulation compared to how heavily regulated "the right to bear arms" already is.
Because the second amendment isn't really taken seriously by anyone, not even the gun nuts. If it were taken seriously, it would become immediately obvious to everyone that it has become horribly dated by the advent of modern weapons technology and it needs to be changed. And then we could have an honest debate about where we ought to draw the line between weapons that people not in the military ought to be allowed to have, because everyone agrees the line needs to be drawn somewhere, even if it's just at WMDs. But no one seems to want to actually have that debate.
