"[I]ncorporating the Second Amendment so that it has authority over states will not stop localities from tailoring individual solutions."

Yes it will.  Basic constitutional law:  If a given prhobition on gun ownership or posession is deemd unconstitional as to the federal government, and the 2nd Amendment were made applicable to the states via the 14th Amendment due process clause (something which would make no sense -- more below), then no municipality would be able to pass any local law that is the equivalent of that unconstitutional prohibition.  Municipalities would be bound just as states would be bound, because municipalities are creatures of state law -- all of their authority derives from a grant of limited power by the state.  They have no power over their citizenry that is greater than that of the state's because such local power would be beyond the ability of the state to grant.  Put it this way:  The City of Chicago can't tailor "individual solutions" to free speech questions or search and seizure restrictions -- rights that have been held applicable to state governments.  It must abide by those amendments just as state governments must.

In any case, it would be very strange to hold that the 2nd Amendment is applicable to state governments, beause the clearly stated purpose of the amendment (a well-regulated militia being necessary for the security of a free state) is to safeguard the security of the individual states -- not the safety of individuals against criminals.  Aren't the democratic state governments in the best position to judge what's in the ibest ntererst of the security of the state as a whole and pass or permit laws on weapons use and possession accordingly?  Think of it this way:  In setting up its militia, would the state be allowed to say that it's members may use x gun but not y gun and maybe no handguns at all?  After all, it is to be "well-regulated."

If that all sounds silly, it's because the reason that this weird amendment is in the Constitution is entirely obsolete.  It was an outgrowth among some opponents of the Constitution who feared that a federal government may overwhelm state governments and who wanted to ensure the ability of the states to resist .... *militarily*.  This should seem nuts given that we live in 2007.  We have a standing army now -- a vast professional military with nuclear weapons.  Any civil war today would depend on capturing *that* and not on some guys with handguns.  And do we want to maintain this right to make civil war anyway?  This is cult territory -- the only place the 2nd Amendment has a legitimate home today.

The answer is: Supreme Court, stay out.  Let DC do what they want, and Texas can do what it wants.  What's wrong with that?

If the preamble is considered as critical to the interpretation of the 2nd amendment and as a justification for upholding the DC law then isn't there also a good argument that current copyright law is unconstitutional?  Did the latest extension of the length of copyright (Bono bill) do anything to "promote the Progress of Science and useful Arts" and isn't it an excessive time being that copyright is  supposed to be "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"?  Does the DMCA serve that purpose by inhibiting people from creating works that use audio or visual snippets from preexisting works and which in the past would have been considered fair use?   (If you can't already tell I have little regard for current copyright law.)

How much of constitional law and SCOTUS decisions have used preambles in the decision making or it an argument made primarily with respect to the 2nd amendment?  

Were state militias considered to be an important check on federal power?  If so, does the Presidential authority to federalize state National Guards mean that they do not fulfill that function and that private citizens do have a fundamental right to bear arms for that purpose; and when is exercising that check not to be considered an act of rebellion?  

jhildner,

"We have a standing army now -- a vast professional military with nuclear weapons.  Any civil war today would depend on capturing *that* and not on some guys with handguns."

Two words - asymmetric warfare.  An irregular force can't defeat an organized professional military, but it may prevent victory, i.e imposing its will on the populace.  

(A cross post, but I realized too late that the other thread was dead.)

Since when is the right to bear arms the right to bear a particular type of arms?  Is it legitimate to ban private citizens from owning RPGs or land mines?  Of course.  Then it's equally legitimate to ban individuals from owning handguns.  

Why can't the government say, "Okay, you're free to exercise your right to bear arms within the following parameters: no machine guns, no explosives, and the weapon must have the following minimum length, X" thereby limiting arms-bearing to rifles and shotguns, both of which have a legitimate use--hunting--that handguns lack and are, in the case of shotguns, equally or more effective for personal defense and, in the case of rifles, are more effective for military combat, i.e. in the "maintenance of a well regulated militia."

And to respond specifically to agent 007, citizens would be expected to wage asymmetric warfare more effectively with rifles than with handguns.  A Kalashnikov, either semi-auto or full, is a weapon of war, and a .30 06 hunting rifle comes close; handguns, on the other hand, are for robbing liquor stores and for shooting your wife, your wife's lover or yourself.

For the second time in a TNR Talkback gun conrol debate, I find myself quoting that unlikely advocate of handgun control, Ronnie Van Zant of Lynyrd Skynyrd:

"Hand guns are made for killin

Aint no good for nothin else

And if you like your whiskey

You might even shoot yourself

So why dont we dump em people

To the bottom of the sea

Before some fool come around here

Wanna shoot either you or me"

The above quoted lyrics are from "Saturday Night Special" by Lynyrd Skynyrd

BTW, Lynyrd Skynyrd has to be one of the most under-appreciated bands of the last 40 years.  Too many repetitions of "Free Bird," I suppose.  That and "Sweet Home Alabama."  

But just check out "Gimme Three Steps" or "That Smell."  They're classics!

The comments to the Second Amendment posts, particularly jhildner's first post, provide a good basis for a Supreme Court brief--at least an amicus brief.  I have long referred to the Second Amendment as Jefferson's Folly.  What was he thinking when he wrote that?  Jhildner succinctly explains Jefferson's rationale.  Does any sane person, even a right wing nut case like Levy, believe that there is an individual constitutionally protected right to maintain weapons to assist the states in protecting themselves against the Federal government?  Didn't the Civil War in crushing the rebellion of the southern states render this interpretation of the Second Amendment obsolete?  The prescience of the founding fathers in drafting the Constitution is wholly lacking in the Second Amendment.  After reading jhildner's post, I think I will start referring to the Second Amendment as the most obsolete amendment.

I neglected the Third Amendment--quartering soldier, which is clearly the most obsolete amendment.

jhildner:  You forget the rule RE: home rule cities, whose authority often trumps the state in which they reside.  A home rule city is any city with more than 5,000 residents.  A home rule city can do anything not strictly prohibited by their state's constitution.  The US Federal Constitution has no say.  Therefore, Cass Sunstein's analysis was correct.

I agree with the other posted comments that even an individual right to bear arms does not necessarily preclude regulation (i.e., gun control). Even the First Amendment right to free speech, which most people believe is absolute, really isn't absolute.

That said, perhaps anti-gun advocates should more strongly encourage gun training and safety rather than merely trying to ban guns altogether.

Whether we like it or not -- whether the perspective is right or wrong -- there is growing sentiment in many communities that life, especially urban life, is dangerous and crime-ridden and people want to protect themselves, especially in their homes.

At risk of sounding right-wing, the preference to ban guns rather than promote their responsible use, seems very condescending and elitist, as people cannot be expected or encouraged to act responsibly.

Unfortunately, individuals and groups in our society seems to grow more and more unwillingly to promote their causes through persuasion and would rather attempt to use the blunt force of government to impose various solutions without respect to basic freedoms provided in the Constitution.

scott looper:

First, I didn't see Cass Sunstein say that cities could do what they wanted.

Second, to say that cities, including home rule cities, can violate the U.S. Constitution is absolutely wrong.

Third, home rule cities are merely those municipal corporations *granted* a certain level of autonomy by the state government.  They have no authority that is greater than that of the state government.  If the state must abide by a federal constitutional restriction (such as most, but not all, of the rights guranteed by the first 8 amendments), then the cities must too.

scott looper 2:

Think of it as a delegation of power.  The states permit some municipalities to exercise the general police power -- the repository of power states have to regulate for the general welfare -- within their boundaries.  But the police power is limited by both the state and federal constitutions.  States can't delegate power they don't have, and they don't have the power to violate constitutional rights which have been held applicable to state governments.  One more point: no law may ever "trump" the U.S. Constitution within the U.S.  It's the "supreme law of the land."

whimsy:

The clause you refer to authorizes Congress to create intellectual property rights for the purpose of providing an incentive for the creation of such works.  Any copyright and patent scheme of general applicability that secures those rights for limited times (i.e., not forever), will fulfill that purpose in a broad sense.  When it comes to details, the Constitution is (naturally) silent, just as it is silent as to how exactly Congress should exercise its enumerated powers generally.  The details -- how it exercises its power -- is up to Congress.  The Constitution doesn't define what criteria should be used to determine whether the copyright and patent laws do in fact promote the progress of science and useful arts, and I don't see courts as the ones to create them and test the laws against them.  Do you think courts should undertake that kind of analysis?

In answer to your question, the statement of a purpose is very unusual in the Constitution, so it's hard to say whether courts look at "preambles."  However, I wouldn't characterize the first part of the 2nd Amendment as a "preamble."  It defines the nature of the right guaranteed in the second part.  I look at it more as an "insofar as" clause.  The second part says, roughly, the right of the people to keep and bear arms shall not be infringed.  This is very vague, as are most rights guaranteed in the Constitution.  What exactly does that right entail?  The first part conveniently answers that question for us.  Let's presume that all agreed that a well-regulated milita were not in fact necessary for the security of a free state.  One better:  Assume that every state government in the union freely passed a resolution to that effect.  Is there any more right to keep and bear arms?  I would say no.  It seems to me that the interest being protected, given the first part of the amendment, is that of the states to resist federal encorachment.  Aren't states in the best position to make that judgment?  Let's say Connecticut really isn't too worried about federal encroachment and decides that it doesn't need any milita at all and therefore doesn't require its citizenry to be, in any significant portion, armed.  Let's say further that it has a problem with gang violence in New Haven and wants to outlaw handguns.  Does this provision of the Constitution really prohibit Connecticut (which is supposedly the entity needing protection) from making that decision?  I don't think so.

I think you're right that the National Guard does not count as a state militia.  I think that some states actually do have little state guards that are not capable of being federalized -- not sure though.  In any case, the fact that states do not maintain significant militias should tell you something.  There is no need for them.  And, even if there were, why can't states regulate them totally as they wish, say, by not permitting their members from keeping or bearing certain types of weapons (e.g., hanguns) or only permitting that they keep or bear them at certain times or places and in certain ways or even not at all.  Once again, the plain purpose here is to protect states from the federal government, something the states can decide for themselves.  Meanwhile, D.C. isn't even a state, but rather a creature of the federal government, and therefore has nothing to fear from federal encroachment.  It has no independence (regrattably) to encroach upon.

As for treason, I think it raises an interesting question:  When is it permissible for U.S. citizens to fight the U.S. government?  I would have a very high threshhold, because the U.S. government is, by design, a pretty fair and just one.  It ensures democracy and fundamental liberties.  It would have to clearly and egregiously violate them on a very large scale to justify any sort of rebellion.  A minimum, though not sufficient, requirement would be getting a lot of people to go along with you.  If you can't even get that, your rebellion isn't justified because it's the people's interests you're supposedly vindicating.  Do you foresee any rebel meeting even that minimum requirement?

Besides, if you rebel, you would have to break laws anyway.  Why must the Constitution mandate that future rebels be permitted to *prepare* for rebellion?  It's crazy.  If a rebellion were ever justified -- last time, keep in mind, it wasn't -- the rebel forces would be justified in doing what was necessary to accomplish its goals, gun laws be damned.  It's been said in other contexts, sensibly enough, that the Constitution isn't a suicide pact.  And yet it *requires* that the people ready themselves to bring about its destruction?  Total nonsense.

jhildner -- Since you wish to rely heavily on a literal reading of the 2nd Amendment, where does it say that the only threat to a state's security is federal encroachment?

Do you have any suporting evidence that any of the states have "little state guards" that cannot be federalized?  Though you conclude that thought with "not sure though", you are proffering an important point and it would be interesting to know why you think they do.  I've not heard of states having any kind of state militia outside of the national guard system.  Of course, that doesn't mean there aren't such militias; I haven't done the research. Have you?

epackard:

From Cass Sunstein's article this issue:

"Of course we have a National Guard, and states continue to authorize militias. About half of the states even maintain militias. But contemporary state militias are marginal institutions. (Do you know anyone who is in one? Do you know if your state has one?) No one thinks of them as important safeguards against the United States Army."

The fact that we don't hear about these "marginal insttitutions" was the point I was trying to make.  The 2nd Amendment is premised on the notion that these state militias are essential for the "security of a free state."  And yet nobody thinks they are today.  We don't even know if they exist, and half the states don't even have one at all.  Given that the plain purpose of this provision -- plain from both the text and history -- is so far removed from any contemporary concern, it's hard for me to understand how it continues to be vital.

I don't think I'm engaging in an excessively "literal" reading.  I'm looking at all of the materials, starting with the text, as well as the original undertanding, as well as the history of its enactment, as well as the history of its interpretation following its enactment to understand what this provision is all about.  It's not just the text but the spirit of the law -- when you look at all of that stuff -- that seems to point pretty decisively away from the NRA's reading.  I just don't see how this provision establishes a fundamental right to own or carry a gun generally speaking.

I'm pretty agnostic on the policy arguments.  I'm willing to entertain all viewpoints and data about whether gun restrictions like those that have been passed or are contemplated actually reduce crime.  The question is whether the Constitution requires a permissive route because tough gun control violates fundamental liberties.  Given the 2nd Amendment we have and not the 2nd Amendment the NRA wishes we had, I don't see it and would prefer to let the policy debates play out in the federal, state, and local legislatures.

jhildner -- here you go:  www.sgaus.org/official.htm

jhildner -- I would also point out that the left can't really bemoan the Bush administration's "attack on the Constitution and liberty" and then claim that no one fears an encroaching federal government.

epackard:

Interesting re SGAUS.  2nd Am contemplates these institutions, which are to be well-regulated by the states.  At most, seems to me, 2nd Am guarantees right of members of these organizations to "keep and bear arms" (putting aside what kind of arms and when they may be "born") as against federal regulation but always subject to whatever state regulation the state may want to impose (including the election to not maintain these institutions at all).  In other words, at most, the federal government can't totally disarm these institutions.  Still, the feds must be permitted some regulation -- no state, it seems to me, would be permitted to establish a genuine modern military force, with, say, an air force, bombs, rocket launchers, nuclear weapons, etc.  Once again, we run into the absurdity of the notion of state militaries in the contemporary world -- a notion upon which the 2nd Am rests.

As for your second comment, I think there's plenty of room to criticize your government's actions, even very harshly criticize them, without advocating that the citizenry prepare for and, worse, engage in armed resistance.