The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
“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.”
As written, the right to bear arms only applies to people who are in a well regulated militia.
To me it seems like that statement is broken down into two parts, divided by the second comma.
What it’s premise is is that a militia could be formed at any time when the need arises (the Minutemen, etc.), so all the citizenry can have guns so that they are armed when the militia is formed.
Now if back then militias always existed, and they were not formed/disbanded as needed, then ignore what I just said, as it’s incorrect.Edit: just realized if they’re always formed or not wasn’t the issue, its if they were given guns to fight or if they had to bring their own guns to the fight.Interesting, I’d never read it that way before. A lot of interpretation sure does seem to hinge on those little commas.
This is how I’ve always read it, especially given the historical context of the minute men being ready to go within a minute should the continental army/US call them to service.
The US wasn’t intended to have a standing army when we were founded, it was supposed to be militias.
The current constitution was created in part to allow a standing army to exist. It turns out not having a standing army and relying in 13+ militias to become an army doesn’t actually work.
The difference between an army and a milita being premeditation.
But if you follow this logic, how does it apply to the modern world? At the time, there was no standing army, but people could be called up to serve at anytime. There was no all-powerful military industrial complex, so people may need to supply their own gear. Hunting was common and war technology was primitive, so the gear you might keep anyway was directly applicable to war. The goals of this amendment really don’t apply anymore, so how can this topic best serve the people?
To protect against domestic tyranny?
But it doesn’t. Second amendment is not sufficient to protect against domestic tyranny, even from local police with radios and swat teams. Second amendment has a goal of supporting a people’s militia, but there isn’t any such thing nor could it possibly prevent domestic tyranny. At least if you define national guard as that people’s militia, it is equipped to make a difference and somewhat independent of the federal command structure …. But the second amendment in no way supports that
To protect against domestic tyranny, we mostly have the legal system and really need to reinforce its checks and balances, we have the federal system where states have some degree of independence, and we have national guard mostly per state. The very existence of the political stunts around immigration is a demonstration of that protection from domestic tyranny. It may be misguided and seriously flawed but it is “fighting back”, at least in the Don Quixote sense
This provision is completely irrelevant because we now have literal national guard in every state. The 2nd needs to be removed entirely. There is no need for militias anymore to defend the US against Britain or any other country.
Well, that’s a whole other different conversation to be had. I just replied with an interpretation of the actual amendment.
Our forefathers expected us to modify and enhance the Constitution over the centuries, and not that it would be static forever, mired in the time frame of when it was written.
Modify through amendments, not malicious interpretation
I wasn’t suggesting anything malicious. /shrug
Having said that, the amendments themselves are interpreted, which gets us to where we are today, since they were written so long ago. Time has a way of distorting both language and meaning.
I wasn’t saying you are, just what I hear argued from most people in support of a living constitution. Basically that the text of the law doesn’t matter, if it’s considered outdated. But IMO thats the place of the elected legislature to change, not judges, who’s job is to best apply what was written.
That’s definitely true, but there are more genuine honest interpretations, and more dishonest ones. IMO, looking at what the intent was at the time of writing is best, but I can understand the argument of only wanting to follow what is explicitly written.
Not disagreeing with anything that you wrote, but as far as what I quoted above, I just wanted to say that ‘dishonesty’ tends to be in the eye of the beholder, and people tend to distort their reality based on their own personal worldview/bias’, so it’s hard to get a ‘pure’ interpretation.
But I do agree that we should all strive for honest interpretations, the best we can.
Yeah definitely true, but I think we agree that just because 100% fair impartial judging is impossible doesn’t mean it shouldn’t be strived for.
Repealing the second is the logical conclusion to the insane path the right has taken us down.
That’s always been my take as well, but then I’m not from the US, and I don’t think that it’s possible anyway with the country’s political mechanisms.
The monkey paw curls. Gun control laws that do not exempt people who are in a well regulated militia are unconstitutional.
This would…be good actually? The scary thing about guns isn’t revolutions, it’s random sad men poisoned with conservatism doing a mass shooting.
It would invalidate every firearm regulation at the federal level. None of them include carve outs for militia.
Do you need to explicitly include carve-outs or are those implicit? Don’t laws just get interpreted with the constitution in mind, without having to be completely thrown out? Genuinely asking!
I try to be nice to people asking questions.
edit: I mean, if you don’t understand, and I didn’t answer your question, please feel comfortable to ask more questions.
If you have a law that says “a person cannot carry a gun in a courthouse”, that would mean everyone, including police, cannot carry a gun in a courthouse. You can say, “felons cannot possess firearms.” I guess that “exempts” people who are not felons implicitly.
I’m not sure if I understand your question correctly. A portion of a law can be struck down without the whole law being struck down as unconstitutional.
Thanks, I think you answered with your last sentence. They could conceivably just make the part of the law that affects militia members invalid, and keep the rest. Or do they have to literally strike out clauses in the language of the law? If it’s worded too generally it would be impossible to do so without gutting it.
I think that depends on how the law is written and in what way the law is unconstitutional.
Monkey’s toe curls: well regulated means heavy government oversight and oh, so many sensitivity and diversity equity trainings
I would support an affirmative action firearm ownership program.
In this context “well regulated” meant “in proper working order” not heavily overseen.
I’d argue our militias don’t seem to be in proper working order.
Every single gun control law out there exempts police officers and service members in the course of their duties.
I don’t think that is how rights work.
Go look at the gun laws. It’s there in black and white. If a soldier has written orders then civilian police can’t do anything. (Of course, the military can and that officer better have a very good reason related to the military’s needs)
And police officers are largely exempted from any sort of gun control.
Would requiring written orders to vote violate a soldier’s right to vote?
That’s not what’s meant in there. Soldiers can carry on their own off base with a privately owned weapon, according to local laws. But when the military is doing something like transporting serious goods, (nuclear waste, etc) they need to be able to protect it. So they get written orders allowing them to mount belt fed machine guns on the convoy vehicles. Or in lesser cases, just carry a service pistol. Obviously that machine gun breaks literally gun control law we’ve ever made, so there needs to be an exception in that laws for it.
*- I have no clue if the military actually transports nuclear waste, it’s just a hypothetical example.
*- Due to federal laws there is no right to carry a private weapon on base or keep a private weapon stored outside the armory.
The rest of the world considers it INSANITY, that Americans think guns and RIGHTS belong in the same sentence
The “rest of the world” is entitled to their opinion.
Other countries have rights to gun ownership you know
Gun PRIVILEGES? Sure, its the RIGHTS part that is insane and uniquely American
I said rights
Now whether the law is followed depends on the country. But the country I live in does.
Well I stand corrected on it being UNIQUELY American, but not by much, and of those that share similar laws, I’m not sure the states should be striving to be compared to many of them. It’s still however insane as a right
Are US police officers well regulated though?
Lmao, I see what you’re doing there and I agree with it.
The modern use of “regulated” isn’t the same as it was then.
Regulation had to do with training and equipment. The idea was that militias, as opposed to a standing (“Regular”) army, weren’t always trained and armed when they were called to arms. The idea of a “well-regulated militia” was for civilians to already have weapons and understand their use if they were needed.
So a requirement for a well-regulated militia is for civilians to have the right to own and use weapons.
Is it antiquated? Maybe. But saying that “well-regulated” militia was meant to limit access to firearms is an argument based on either ignorance or dishonesty.
Well not quite. Well regulated did also include training and they did not consider the average person to be well trained enough to qualify for the phrase.
It’s both. Without weapons with which to train, a well-regulated militia made up of ordinary civilians isn’t possible.
It’s saying, with a weird comma out of place, that civilians can be armed so that a militia is possible.
Fun fact, you don’t need guns on you 24/7 for training. You don’t even need to store them at home.
False, George Mason quote “I ask, sir, what is the militia? It is the whole people except for a few public officials.” George Mason wrote a draft of what became the second amendment
Well yeah, a militia is a bunch of armed people with a goal.
A well regulated one knows how to use those weapons effectively, and as a group. In my opinion the law as it stands falls short of the mandate: The US should provide public weapons training and make sure its citizens know what the hell they’re doing. That might actually save a few lives that are currently lost to accidents.
The USA should just do what many other countries do: universal compulsary military service for a time during early adulthood. That’d meet the mandate.
We have the man who wrote those words expanding upon them to say what he meant, and you’re still saying “actually he meant something else.”
I’m saying the words that made it into the bill of rights he championed explicitly say more than that, probably because it was written by James Madison and then cut down by Congress.
Yeah that’s one of the pitfalls of the historical argument. There was more than one writer, and founding father. They absolutely did not agree on how widespread guns should be. However the term “Well Regulated Militia” was in common use to describe militias with extensive training to fight in the line and not just skirmish or be an extra force on the side. Alexander Hamilton states you cannot be a “Well Regulated Militia” training once or twice a year.
So it seems a bit disingenuous to now say it’s everyone and there’s no training or anything they would consider Regulation involved.
Aren’t there already limits on what firearms people can have? Also, if understanding their use is a requirement then why isn’t training necessary to purchase one?
Aside from the fact that “training” takes many forms, what the law is saying is that, at a bare minimum, people need the right to keep weapons so that it’s possible to form a militia. If you take a random person who has never owned a weapon and throw one in their hands they won’t even know how to hold the damn thing.
If you spend any time at a gun range, the absolute scariest people are adults who have never handled a gun before. Without the right to own private weapons, if a civil defense situation were to arise and weapons were handed out, that would be everyone. As a national defense strategy, it’s pretty awful.
So they made a law guaranteeing the rights for civilians to own and train on weapons.
As I said, we’re not in any real threat If the British invading these days, but if we’re talking about the original language there it is.
Training would not take many forms if they federally mandated a set of training guidelines.
We do have a national training organization dating back to the 1800s established by the federal government.
It’s called the Corporation for the Promotion of Rifle Practice and Firearms Safety, but is better known as the Civilian Marksmanship Program. Millions of gun owners participate in it in one form or another - including training and competition.
It is NOT required for owning a firearm, though participation is mandatory to buy a surplus military weapon (civilian-legal weapons only) from the government.
False, George Mason quote “I ask, sir, what is the militia? It is the whole people except for a few public officials.” George Mason wrote a draft of what became the second amendment
The federalist papers, and the entire body of US law prior to 2003 disagree with you.
Doesn’t matter who disagrees with me, I’m stating what a individual who helped draft the amendment said.
Except Mason didn’t help draft the Bill of Rights. Madison looked at the Virginia Bill of Rights along with a mountain of other documents to draft the Federal version. Madison’s proposal was then stripped down and reworded and argued over before being partially adopted.
Saying Mason drafted the 2nd amendment is like saying Lucas drafted the current Star Wars shows.
“the people” usually means the state, like in court.
As written, the right belongs to ‘the people’. That’s everyone. It can’t be infringed because that would interfere with their ability to form a well regulated militia, which is necessary to secure freedom.
English is hard sometimes, but not that hard if you try.
If it were so simple, there would be no reason to preface the statement with the clause about a well-regulated militia. No other amendment includes functionless explanatory language. Every amendment was looked over and debated with considerable care, and the language used was deliberately chosen with purpose. The clause was included for a reason, and was not removed for a reason.
No good-faith reading of the language can conclude that the drafters would have phrased it that way if they did not intend for “a well-regulated militia” to be functionally relevant to the interpretation. If they had intended the amendment to mean, simply, “The right of the people to keep and bear arms shall not be infringed” then that would have comprised the entirety of the text. Legal language is hard sometimes, but not that hard if you try.
Yes. It’s relevant in that it’s an explanation.
Noah Webster
Explanation is not function. No other amendment includes an explanation or justification for its functional text. They all simply state, in purely functional language, the right being affirmed.
I reiterate, if it was the intention of the drafters to affirm broadly that “The right of the people to keep and bear arms shall not be infringed” then they would have written that. The opinion of any individual is their own, the legislation as drafted is the legal consensus. As drafted, the consensus necessitated the insertion of the clause, or it would not have been so inserted.
If every amendment had been prefaced with an explanation, you’d have a point. But they weren’t. The entirety of the language used was specific and functional, so the only good faith reading of the second is that the entirety of the language is specific and functional. Explanation is not function.
Before 2003 the law agreed with me. It was Anthony Scalia who made the baseless assertion that they were two separate concepts.
That’s 230 years of history and legal basis on my side, countless judges and lawmakers, and one corrupt, greedy bastard 21 years ago on yours.
And those pesky federalist papers that explicitly clarified the intent significantly closer to the context of the period.
People forget that the founders were not of the same ideology. Plenty of founders disagreed with each other on the danger of military force, but generally agreed on popular gun ownership to protect against it.