Has "Don't Ask, Don't Tell" ever been challenged on 2nd Amendment grounds?

[xiphias]

Some terms, mainly for non-USAians:

"Don't Ask, Don't Tell" is the current anti-gay policy in the United States armed forces -- the idea is that, while it's still not allowed to be gay and in the military, they're not supposed to make any attempts to find out whether folks are gay or not. It doesn't work very well.

The Second Amendment to the United States Constitution, part of our Bill of Rights (which is the first ten amendments to our Constitution), reads, in full,

"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."

Now, there are constant arguments about what, exactly, that means, but I think almost everyone agrees that part of it includes the notion that people have a right to serve in the military.

Has anyone attempted to challenge the exclusion of gays from the military on the grounds that military service is a right, not a privilege?

Comments

[tylik.livejournal.com]

It's an interesting notion. But a very large one, considering that many other people are barred from service.

[mattblum.livejournal.com]

Considering that the courts have ruled that the policy doesn't violate First Amendment rights, I very seriously doubt that they would agree that it violates Second Amendment rights. I mean, the First Amendment has some exceptions (and I mean legitimate ones, like libel and slander and yelling "Fire" in a crowded theatre), but really not that many. I don't think anyone would agree that everyone should be allowed to serve in the military—due to physical limitations, mental limitations, age, etc.—so that makes it that much easier to limit that freedom for other reasons.

[redbird]

I don't know, but if someone were considering such a lawsuit, the obvious legal precedent-search would be for women attempting to enlist openly and/or to serve in combat rather than as nurses and other unarmed support staff.

[beardedone.livejournal.com]

A thing to keep in mind is that any such challenge would come before a military tribunal if the individual challenging such a ban were a serving member of the military, in which case the military would resoundingly vote no, and the individual would have little or no appeal rights.

[voltbang.livejournal.com]

I think almost everyone agrees that part of it includes the notion that people have a right to serve in the military

I've never heard that arguement. I don't see it. Are you looking at "militia" or "bear arms" to get that meaning from that sentence? I would certainly accept that military service is a right, but I don't know that it's recognized in the bill of rights, or the constitution.

[navrins]

That's the usual interpretation from people trying to say, "No, it doesn't mean everyone gets to have guns; it's the 'militia' part that's important."

Which adds up to, stereotypical liberals think gays (and everyone) should be allowed to serve in the military, and stereotypical conservatives think everyone should be allowed to have guns. Which changes nothing.

[the-editor.livejournal.com]

under this administration?

you'd have a better chance if you were dressed as a Yale Cheerleader, I suppose.

[beardedone.livejournal.com]

Yale has cheerleaders? Do they have a football team?

Semantics

[(Anonymous)]

I'm not sure the idea that this amendment gives everyone the "right" to serve in the military would hold up under semantic analysis. The right conferred is the right to keep and bear arms. The reason for conferring the right is the necessity of having a well-regulated militia. To be technically picky, a regular army of professional soldiers isn't mentioned in the amendment at all. According to Dictionary.com, a militia is:
1. An army composed of ordinary citizens rather than professional soldiers
2. A military force that is not part of a regular army and is subject to call for service in an emergency
3. The whole body of physically fit civilians eligible by law for military service

While the National Guard and Reserve started out meeting definition #2, it could be argued that under the present administration, they've become just another wing of the regular military. Even if they still fit the definition of "militia", the amendment wouldn't guarantee everyone's right to be a member, if strict semantics are applied. However, it does guarantee the right to "keep and bear arms". I wonder how the government would respond if a large number of gay and lesbian citizens decided to form a private militia for defense of their communties.

Re: Semantics

[(Anonymous)]

Oh, yeah... previous post was from Felis Sidus.