2nd Amendment Militia Clause

[highland145]

Who is this that has the potential ability to infringe that an amendment is necessary to protect the people from them doing so?

I that a serious question?

 

[werepossum]

As I believe our OP in Rainsford has it right in quoting the second amendment to our constitution has it right in saying, "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."

Vague language to be sure, but methinks the singular clause of well regulated militia does not and cannot apply to individuals American Citizens.

As our founding fathers had a fear, that a dictatorial Federal government that must have a standing army could run ruff shod over the rights of individual US States unless those individual US States did not have the right to form standing armies too. To jointly oppose a dictatorial US central army.

As it led to a constitutional test of that very concept during our American civil war. And maybe best tested by a member of the US Federal army named Robert E. Lee. As he had the wrestle with the question of where his loyalty should lie. Should it lie with the US Federal army he was already proudly serving, or with the State of Virgina he was a member of?

As history teaches the answer, when both the US Federal army and the State of Virgina both offered Robert E. Lee a leadership role. Robert E. Lee rightly or wrongly choose to side with the Army of Virginia. As the state of Virgina and other confederate States used their well regulated State militias to forge a large army to oppose the army of the Federal government, who majority decided to not permit or allow an individual US State to succeed from the Federal government. As we also had agreed to join four score and seven years ago. As that final outcome question was settled in blood by 1865.

As subsequent SCOTUS rulings usually sided with the fact, individual gun owners, since they had no standing regarding a well regulated militia, had no real standing in the right to own unlimited arms. And thus the argument stuck until activisits and idiotic judges in MhO, extended that second amendment right to every kook who owned a gun

If we are to accept that by "the people" the Founding Fathers meant "the government", then we literally have no rights. The right of the people to peaceably assemble becomes the right of government to assemble them. The right of the people to be secure in their persons, houses, papers, and effects becomes the right of government to be secure in its persons, houses, papers, and effects. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people becomes the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the government. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people becomes the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the United States.

One can certainly quibble about the meaning of "well regulated" or "militia" - although in historical terms these are quite clear - but if we're to accept the asinine suggestion that "the people" now means "the government" because of the Civil War then we've given up any pretense of being free or indeed, even being human. We are simply government possessions to be used for government's best interests.

 

[piasabird]

Maybe people will confuse the goverment and every town will have a gun club malitia. This reminds me of the blue laws in Kansas and how they had private clubs where people would meet to drink on Sunday. It was a way of getting around the law.

 

[Zorkorist]

One must remember, that the Bill of Rights, were Amendments to the Constitution, when it was decided to be FAVORING the Government too much.

The Constitution, is Government, with every sneaky thing you would think about Government. Taxes, Police, etc.

The Bill of Rights, is saying, woah! I may give you some power, but understand this. I have rights. I can speak my mind. I can have a weapon. I can, I can... jeeze how limiting this feels, in the face of the all powerful Government.

I barely feel safe, speaking freely today. I barely feel safe brandishing a weapon, etc.

Government is winning, and all of you that care for freedom, need to speak up now.

-John

 

[Zorkorist]

And I might say, some philosopher once called America's Government an exercise in freedom, because he knew, that all Government's eventually, squash freedom.

-John

 

[Triumph]

The preferred liberal view of the Second Amendment is that it refers to the right of states to have militias. The right of government (whether local or national) to impress its citizens to fight on its behalf was universal - couldn't have a nation without it - so guaranteeing states the right to keep militias (especially given that we had no standing army) would be nonsensical, and enshrining it in the Bill of Rights would be an offense at least equal to that of King George when he attempted to disarm his American subjects. Seriously - you have the RIGHT to fight for your state?

If this is true, then why is it not accepted that ANY federal firearms regulation is necessarily unconstitutional because it trods on the rights of the states to run their militias how they see fit? Say my state wants to have a militia of private citizens armed with fully automatic weapons. They realistically can't because of the very high cost of them due to the NFA. Another argument is that the militia clause really only means the National Guard as it is in existence today. But the NG is so intertwined with the Federal military as to be nearly indistinguishable/inseperable.

 

[highland145]

If this is true, then why is it not accepted that ANY federal firearms regulation is necessarily unconstitutional because it trods on the rights of the states to run their militias how they see fit? Say my state wants to have a militia of private citizens armed with fully automatic weapons. They realistically can't because of the very high cost of them due to the NFA. Another argument is that the militia clause really only means the National Guard as it is in existence today. But the NG is so intertwined with the Federal military as to be nearly indistinguishable/inseperable.

Some would argue that it is unconstitutional.

I don't think the $200 is too onerous. If someone is going to pay for an automatic weapon, surely they can put up $200 more. Same goes for suppressors.

National Firearms ActBrought about by the lawlessness and rise of gangster culture during prohibition, President Franklin D. Roosevelt hoped this act would eliminate automatic-fire weapons like machine guns from America's streets. Other firearms such as short-barreled shotguns and rifles, parts of guns like silencers, as well as other "gadget-type" firearms hidden in canes and such were also targeted. All gun sales and gun manufacturers were slapped with a $200 tax (no small amount for Americans mired in the Great Depression; that would be like a tax of $2,525 today) on each firearm, and all buyers were required to fill out paperwork subject to Treasury Dept. approval.

Read more: Federal Gun Control Legislation - Timeline — Infoplease.com http://www.infoplease.com/spot/guntime1.html#ixzz2GM0UqAsF
​

Anyone know is state police have access to/carry full auto rifles?

 

[TerryMathews]

Some would argue that it is unconstitutional.

I don't think the $200 is too onerous. If someone is going to pay for an automatic weapon, surely they can put up $200 more. Same goes for suppressors.

Read more: Federal Gun Control Legislation - Timeline — Infoplease.com http://www.infoplease.com/spot/guntime1.html#ixzz2GM0UqAsF
​

Anyone know is state police have access to/carry full auto rifles?

Some argue it never passed. Rangle fudged the voice count. You can listen to the whole thing on CSPAN.

 

[Triumph]

Some would argue that it is unconstitutional.

I don't think the $200 is too onerous. If someone is going to pay for an automatic weapon, surely they can put up $200 more. Same goes for suppressors.

Read more: Federal Gun Control Legislation - Timeline — Infoplease.com http://www.infoplease.com/spot/guntime1.html#ixzz2GM0UqAsF
​

Anyone know is state police have access to/carry full auto rifles?

Maybe I'm confusing the laws, the 200 tax stamp isn't bad but the law prohibiting the importation or manufacture of new full auto firearms means the existing ones cost 10-20,000 each.

 

[fskimospy]

If we are to accept that by "the people" the Founding Fathers meant "the government", then we literally have no rights. The right of the people to peaceably assemble becomes the right of government to assemble them. The right of the people to be secure in their persons, houses, papers, and effects becomes the right of government to be secure in its persons, houses, papers, and effects. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people becomes the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the government. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people becomes the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the United States.

One can certainly quibble about the meaning of "well regulated" or "militia" - although in historical terms these are quite clear - but if we're to accept the asinine suggestion that "the people" now means "the government" because of the Civil War then we've given up any pretense of being free or indeed, even being human. We are simply government possessions to be used for government's best interests.

While I believe the 2nd amendment should confer an individual right to self protection, there's not really any evidence that the founders believed this. The original idea was for local militias to protect the town and also to keep the federal government in check, but again in the form of an organized local militia, not that individuals should be able to have a personal armory. There's a reason why no court ever read the 2nd amendment to confer an individual right for more than 200 years, and it's not because they were all part of some liberal conspiracy.

Of course what's funny about all that is that if you take an originalist view of the Constitution you should be against the individual right to bear arms. Something tells me that those people who think we should follow the Constitution in that way won't be doing that, however.

 

[Pr0d1gy]

No matter how much you people want to pretend you're the political & legal Einstein, the people of this country will not stand for you trying to talk them out of their uninfringeable right to bear arms. Don't believe me? Go to your local gun permit office right now in one of the larger cities in your state and look at the line.

End of discussion.

 

[JTsyo]

I think the Civil War proved that simply bearing arms is not enough to be free of the Federal government. The only way any current revolution is going to succeed is to have a portion of the armed forces support it.
Now if for some reason the Federal government falls apart, then having armed citizens around to be able to form militias for protection is what this allows for now. Maybe the Founding Fathers feared the zombie apocalypse too.

 

[Dari]

The Afghans analogy always struck me as an excellent, but flawed, reason for the 2nd Amendment. That's because Afghanistan has NEVER been unified. It has been difficult to conquer, even for Afghans. So the analogy is not perfect by any means. If a foreign army invaded our country, the war of attrition would be brutal but short-lived. Why? Because, unlike the Afghans, we don't have a history of invasion and internal warfare. Like any modern nation, our resistance will succumb to the will of our prior convenience. The Afghans have been fighting each other and outsiders for THOUSANDS of years. They live and die for the fight. We live and die for McDonalds and reality tv.

 

[Charles Kozierok]

We live and die for McDonalds and reality tv.

We have lots of flaws, but give us a break. People tend to go soft and become trivial when they can get away with it. They can get hard and serious again when needs demand it.

Americans on the whole are a very complex people, not easily pigeonholed or understood.

 

[highland145]

Some argue it never passed. Rangle fudged the voice count. You can listen to the whole thing on CSPAN.

Maybe I'm confusing the laws, the 200 tax stamp isn't bad but the law prohibiting the importation or manufacture of new full auto firearms means the existing ones cost 10-20,000 each.

Firearms owners protection act, 1986.

As debate for FOPA was in its final stages in the House before moving on to the Senate, Rep. William J. Hughes (D-N.J.) proposed several amendments including House Amendment 777 to H.R. 4332 [4] that would ban a civilian from ownership or transfer rights of any fully automatic weapon which was not registered as of May 19, 1986. The amendment also held that any such weapon manufactured and registered before the May 19 cutoff date could still be legally owned and transferred by civilians.
In the morning hours of April 10, 1986, the House held recorded votes on three amendments to FOPA in Record Vote No's 72, 73, and 74. Recorded Vote 72 was on H.AMDT. 776, an amendment to H.AMDT 770 involving the interstate sale of handguns; while Recorded Vote 74 was on H.AMDT 770, involving primarily the easing of interstate sales and the safe passage provision. Recorded Vote 74 was the controversial Hughes Amendment that called for the banning of machine guns. Rep. Charles Rangel (D-N.Y.), at the time presiding as Chairman over the proceedings, claimed that the "amendment in the nature of a substitute, as amended, was agreed to." However, after the voice vote on the Hughes Amendment, Rangel ignored a plea to take a recorded vote and moved on to Recorded Vote 74 where the Hughes Amendment failed.[5][6] The bill, H.R. 4332, as a whole passed in Record Vote No: 75 on a motion to recommit. Despite the controversial amendment, the Senate, in S.B. 49, adopted H.R. 4332 as an amendment to the final bill. The bill was subsequently passed and signed on May 19, 1986 by President Ronald Reagan to become Public Law 99-308, the Firearms Owners' Protection Act.

 

[soulcougher73]

With all the squabbles over "interpretation" of the Constitution/Bill of Rights, you'd think we wrote a 2nd bible Maybe we need to rewrite them and make it very clear what we actually mean

 

[Dari]

We have lots of flaws, but give us a break. People tend to go soft and become trivial when they can get away with it. They can get hard and serious again when needs demand it.

Americans on the whole are a very complex people, not easily pigeonholed or understood.

This country isn't what it used to be. Remember when people used to say "So sue me!". Can't say that anymore. Everybody has their hand in someone else's pocket. We've gone soft. Most people don't know hard work or what it's like to struggle anymore. Everything has become convenient. An invading force would just have to make things a little inconvenient and many in this nation will roll over. They won't last. Americans may be many things but we're no Afghans...

 

[ivwshane]

Is there anything in the constitution about a federal army?

It seems to me that a national army isn't something the founding fathers wanted unless we were in a authorized conflict. Otherwise it sounds like the states were to have state level armies for day to day protection.

So to me if you are pro 2nd amendment you should be anti national military, at least in its current form.


Were there any laws at the state level at the time that talked specifically about allowing citizens to arm themselves and the reasoning being to fight a tyrannical government?

 

[fskimospy]

Is there anything in the constitution about a federal army?

It seems to me that a national army isn't something the founding fathers wanted unless we were in a authorized conflict. Otherwise it sounds like the states were to have state level armies for day to day protection.

So to me if you are pro 2nd amendment you should be anti national military, at least in its current form.


Were there any laws at the state level at the time that talked specifically about allowing citizens to arm themselves and the reasoning being to fight a tyrannical government?

Yes there is a section in the Constitution about an army. (article I section 8)

 

[corwin]

Wow, this is actually a reasonable discussion...I'm impressed

Anyone know is state police have access to/carry full auto rifles?

Yes they have them but they aren't issued to just anyone, SWAT teams are usually the only ones, no real need for them 99.9% of the time and regular officers are barely trained on their handguns let alone the time it would take to get them ready to use anything in full auto:\

 

[Fern]

While I believe the 2nd amendment should confer an individual right to self protection, there's not really any evidence that the founders believed this.

Ridiculous.

That right was long established under English common law centuries before the USA revolted.

The original idea was for local militias to protect the town and also to keep the federal government in check, but again in the form of an organized local militia, not that individuals should be able to have a personal armory. There's a reason why no court ever read the 2nd amendment to confer an individual right for more than 200 years, and it's not because they were all part of some liberal conspiracy.

Nor have the courts upheld that such a right does not exist.

Of course what's funny about all that is that if you take an originalist view of the Constitution you should be against the individual right to bear arms. Something tells me that those people who think we should follow the Constitution in that way won't be doing that, however.

Completely disagree. You seem to be of the opinion that the Constitution exists to enumerate our our rights, and if not listed (or found in the penumbra) it does not exist. The Constitution is to limit the power of the federal govt, not define ours, a completely different thing altogether.

Fern

 

[the DRIZZLE]

While I believe the 2nd amendment should confer an individual right to self protection, there's not really any evidence that the founders believed this. The original idea was for local militias to protect the town and also to keep the federal government in check, but again in the form of an organized local militia, not that individuals should be able to have a personal armory. There's a reason why no court ever read the 2nd amendment to confer an individual right for more than 200 years, and it's not because they were all part of some liberal conspiracy.

Of course what's funny about all that is that if you take an originalist view of the Constitution you should be against the individual right to bear arms. Something tells me that those people who think we should follow the Constitution in that way won't be doing that, however.

Can you point me to any court rulings before Miller that specifically rejected the individual rights interpretation of the 2nd Amendment? If not, your point about the lack of court rulings is meaningless.

edit: I see Fern beat me to it.

 

[TerryMathews]

While I believe the 2nd amendment should confer an individual right to self protection, there's not really any evidence that the founders believed this. The original idea was for local militias to protect the town and also to keep the federal government in check, but again in the form of an organized local militia, not that individuals should be able to have a personal armory. There's a reason why no court ever read the 2nd amendment to confer an individual right for more than 200 years, and it's not because they were all part of some liberal conspiracy.

Of course what's funny about all that is that if you take an originalist view of the Constitution you should be against the individual right to bear arms. Something tells me that those people who think we should follow the Constitution in that way won't be doing that, however.

Proof: http://avalon.law.yale.edu/18th_century/fed29.asp http://avalon.law.yale.edu/18th_century/fed46.asp

 

[Fern]

-snip-

One thing that I still don't quite understand about the gun debate is the way the pro-gun folks read the 2nd amendment...a reading that recently was explicitly backed up by the Supreme Court in Heller. That interpretation, as I understand it, says that individuals have the right to keep and bear arms and that government at any level may not infringe on that right (with some limitations). Or in other words, that the part of the amendment AFTER the comma is the only part that shapes our rights. The first part, when it's mentioned at all, is said to be a statement of purpose or general comment on the idea of gun ownership with no legal impact on the rights defined in the amendment.

No.

The courts have previously recognized the "collective right". It's been explicitly recognized and cited to uphold weapon convictions against sawed-off shotguns etc (a prohibition era case). SCOTUS ruled that such a weapon had no use or purpose in a militia, thus recognizing the "collective right".

Now regardless of how you feel about gun rights, it seems like this interpretation is a bit strange. After all, the interpretation would be EXACTLY the same if the amendment simply read "The right of the people to keep and bear arms shall not be infringed." I'm not a lawyer, but it's a little hard to believe that laws can be correctly interpreted by only reading half the words. The rest of the Bill of Rights doesn't seem to offer any examples of this construction, for example.

See above.

In addition, I know of no court case that disavows the collective right. I.e., forbids a state to assemble or maintain a militia.

The "statement of purpose" argument, as made by the majority of the Supreme Court, is that the militia clause says people are allowed to keep and bear arms so that a citizens militia could be formed...regardless of whether it is or not. Even if you agree with this interpretation, it seems like the "necessary to the security of a free state" purpose would need to apply to the theoretical militia. Given the changes in our country since the 1700s, I'm not entirely sure that is necessarily true. And if the statement of purpose no longer applies, what is the legal implication for the rest of the amendment? Would the framers have left out the second amendment if they didn't believe the first clause was true, or would they simply have reworded it? For that matter, can the legal argument be made that it IS true, that individuals owning weapons is a key part of our state/national security?

I'm hardly the most stalwart supporter of gun-rights, but I'm honestly curious about the arguments for the current interpretation of the 2nd amendment. Even if the interpretation is right, that still leaves room for limited, reasonable gun control (as suggested in Heller), but understanding the 2nd amendment itself is still a good first step. And I'm curious what you all think about it

Heller, the case your remarks seem aimed at, was taken up by the courts to explicitly address the "individual right" and, as usual, is narrowly focused on that issue. I think if you read the case you find that the individual right, revolving primarily around the inalienable or natural right to self-defense, does not necessarily encompass the right to arms suitable for militia purposes. In fact, the court specifically said it doesn't - e.g., the individual right does not extend to permit we citizens to own tanks and other weapons suitable for militia/military.

I.e., the 2nd amendment is of two parts - the "collective right" and the "individual right". SCOTUS has affirmed both.

Fern

 

[HumblePie]

Just to be clear, a gun club is considered a militia in technicality.