"A Well Regulated Militia"

Rainsford

Lifer
Apr 25, 2001
17,515
0
0
Even though I don't own a gun, I support the right to own gun because I believe that people should have a right to defend themselves and because I don't think taking guns away from people will make things any safer. But one thing I've always wondered about the gun ownership debate is what exactly the 2nd amendment means for gun ownership. Pro-gun groups love to cite the 2nd amendment, but they seem to just completely ignore the first part of that amendment, which says "A well regulated militia, being necessary to the security of a free state..." while quoting at every possible opportunity the second part of the amendment, "...the right of the people to keep and bear arms, shall not be infringed."

I'm not among those who believes "the people" in the 2nd amendment refers to the people as a whole (ie, the state), mostly because several other amendments use the same wording and are obviously not giving out group rights. But I do wonder about the first part about the "well regulated militia". It almost seems like an aside, except that I doubt the framers just threw something into the bill of rights as a point of interest. Clearly it was put there for a reason, and while I'm not sure that it says individuals don't have a right to own a gun, it seems like unnecessary wording if the NRA is right.

I have no axe to grind here on gun rights, so please leave the gun debate for the 11 other threads we have about it...I'm just curious what people think about the wording of the 2nd amendment.
 

Genx87

Lifer
Apr 8, 2002
41,095
513
126
Originally posted by: Rainsford
Even though I'm not a big fan of guns personally, I support the right to own gun because I believe that people should have a right to defend themselves and because I don't think taking guns away from people will make things any safer. But one thing I've always wondered about the gun ownership debate is what exactly the 2nd amendment means for gun ownership. Pro-gun groups love to cite the 2nd amendment, but they seem to just completely ignore the first part of that amendment, which says "A well regulated militia, being necessary to the security of a free state..." while quoting at every possible opportunity the second part of the amendment, "...the right of the people to keep and bear arms, shall not be infringed."

I'm not among those who believes "the people" in the 2nd amendment refers to the people as a whole (ie, the state), mostly because several other amendments use the same wording and are obviously not giving out group rights. But I do wonder about the first part about the "well regulated militia". It almost seems like an aside, except that I doubt the framers just threw something into the bill of rights as a point of interest. Clearly it was put there for a reason, and while I'm not sure that it says individuals don't have a right to own a gun, it seems like unnecessary wording if the NRA is right.

I have no axe to grind here on gun rights, so please leave the gun debate for the 11 other threads we have about it...I'm just curious what people think about the wording of the 2nd amendment.

If you look at how it is written there is clearly a comma seperating the well regulated militia and the right to bear arms. IMO they are two seperate statements.

Before we get into proper english as we speak it today. I suggest reading wealth of nations by Adam smith, written at the same time, and note the rampant use of comma's, where we would most likely use periods today.

I would guess if it was written today it would look something like this.

"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."

 
Feb 24, 2001
14,550
4
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I read it as the first 9 applying to individuals, the last one going to states when otherwise not included in the first 9. A simple one sentance answer.
 

CycloWizard

Lifer
Sep 10, 2001
12,348
1
81
Originally posted by: Genx87
"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."
If it were written today, it would be written in one of these forms:
1. A well regulated milita is necessary to the security of a free state. Therefore, the right of the people to keep and bear arms shall not be infringed.
2. A well regulated militia is necessary to the security of a free state. Further, the right of the people to keep and bear arms shall not be infringed.

At least, those are the two "translations" that I can pick out when reading it. The two have very different meanings, however. In either case, I think it's clear simply from historical context that the authors never would have presumed to remove the right to guns from the common citizenry simply because owning a gun was a basic necessity at the time for hunting and what have you.
 

ProfJohn

Lifer
Jul 28, 2006
18,251
8
0
According to one site that deals with the 2nd amendment there are NO writings at all from the constitutional period that link gun ownership and militia membership.

But there are several that deal with gun ownership in general. When you read those and if you understand the British attempts to limit gun ownership you understand the basis of the 2nd. The constitution was written by a bunch of people who 10 years earlier were a band of rebels fighting for their freedom with their guns. I imagine to them the right to own a gun meant the right to fight tyranny.

Alexander Hamilton in the Federalist, No. 29
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
James Madison in Federalist No. 46 wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
 

daveymark

Lifer
Sep 15, 2003
10,576
1
0
Originally posted by: CycloWizard
Originally posted by: Genx87
"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."
If it were written today, it would be written in one of these forms:
1. A well regulated milita is necessary to the security of a free state. Therefore, the right of the people to keep and bear arms shall not be infringed.
2. A well regulated militia is necessary to the security of a free state. Further, the right of the people to keep and bear arms shall not be infringed.

At least, those are the two "translations" that I can pick out when reading it. The two have very different meanings, however. In either case, I think it's clear simply from historical context that the authors never would have presumed to remove the right to guns from the common citizenry simply because owning a gun was a basic necessity at the time for hunting and what have you.

this pretty much sums it up. all of the sudden, over 200 years later, someone wants to take issue with the meaning of the word "militia" in the second amendment? If there was a substantial issue with the definition of the word, wouldn't it have been clarified long ago?
 

ProfJohn

Lifer
Jul 28, 2006
18,251
8
0
Another great quote, this one from a court case:
"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))
 

Lemon law

Lifer
Nov 6, 2005
20,984
3
0
Its my understanding that it originally more applied to State or even locally run militias rather than individuals. The idea that if only the Federal government could raise an army, the rights of States could be trumped by the might of the Federal Government. But its one issue the NRA chooses to take poetic license on and SCOTUS has always ducked on clarification.
 

Harvey

Administrator<br>Elite Member
Oct 9, 1999
35,052
30
86
Originally posted by: Genx87
If you look at how it is written there is clearly a comma seperating the well regulated militia and the right to bear arms. IMO they are two seperate statements.

Before we get into proper english as we speak it today. I suggest reading wealth of nations by Adam smith, written at the same time, and note the rampant use of comma's, where we would most likely use periods today.

I would guess if it was written today it would look something like this.

"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."

I'm afraid your analysis fails. In your constructino, the words before the first period are:

"A well regulated Militia, being necessary to the security of a free State."

That is not a complete sentence, and it should not be punctuated with a period. It is an introductory conditional phrase. The difference between a clause and a phrase is that a clause can stand alone as a sentence whereas a phrase cannot. The complete original sentence is:

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.

The first phrase establishes the condition or reason for the declarative statement in the clause that follows, "the right of the people to keep and bear arms shall not be infringed."

What exactly is meant by the words, the people is another question. This statement from the Wikipedia article on the Constitution is intstructive:

The language "We, the People of the United States", is of singular importance in that it provides that the power and authority of the federal government of the United States of America does not come from the several states, or even the people of the several states, but from an entity identified as the People of the United States of America, with the Constitution serving as a compact or contract between the People of the United State of America, the several States, and a newly created entity: the federal government of United States of America. What is important about this language is the clarity with which it attributes the authority of the federal government not to the assent of the states, but to that of the people.

Those favoring unrestricted gun ownership could interpret "the people" as meaning every individual citizen.

Some rational thinking about the nature of firearms, today, raises other questions. For example, light weight, high powered, fully automatic weapons, such as Uzis and AK47's weren't even a concept when the Constitution was written. It's important to consider what those founding fathers would have written if such portable, concealable firepower existed at the time, especially if there were also widely publicized examples of horrific events involving their use.
 

ProfJohn

Lifer
Jul 28, 2006
18,251
8
0
Originally posted by: Lemon law
Its my understanding that it originally more applied to State or even locally run militias rather than individuals. The idea that if only the Federal government could raise an army, the rights of States could be trumped by the might of the Federal Government. But its one issue the NRA chooses to take poetic license on and SCOTUS has always ducked on clarification.
Your understanding is wrong as evidenced by the quote directly above yours.

If they meant it to apply to the states they would have said "states" and not "people."

No one would ever look at the fourth amendment which says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and some how claim it applies to the state. Yet some how the word 'people' has a different meaning in the second amendment? huh? :confused:
 

ProfJohn

Lifer
Jul 28, 2006
18,251
8
0
Originally posted by: Harvey
Some rational thinking about the nature of firearms, today, raises other questions. For example, light weight, high powered, fully automatic weapons, such as Uzis and AK47's weren't even a concept when the Constitution was written. It's important to consider what those founding fathers would have written if such portable, concealable firepower existed at the time, especially if there were also widely publicized examples of horrific events involving their use.
I agree with that 100% which is why the courts have allowed limited gun control laws.

Just as the courts have upheld that laws that limit speech in instances such as yelling fire in a crowded theater.
 

JD50

Lifer
Sep 4, 2005
11,630
2,015
126
Originally posted by: Harvey
Originally posted by: Genx87
If you look at how it is written there is clearly a comma seperating the well regulated militia and the right to bear arms. IMO they are two seperate statements.

Before we get into proper english as we speak it today. I suggest reading wealth of nations by Adam smith, written at the same time, and note the rampant use of comma's, where we would most likely use periods today.

I would guess if it was written today it would look something like this.

"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."

I'm afraid your analysis fails. In your constructino, the words before the first period are:

"A well regulated Militia, being necessary to the security of a free State."

That is not a complete sentence, and it should not be punctuated with a period. It is an introductory conditional phrase. The difference between a clause and a phrase is that a clause can stand alone as a sentence whereas a phrase cannot. The complete original sentence is:

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.

The first phrase establishes the condition or reason for the declarative statement in the clause that follows, "the right of the people to keep and bear arms shall not be infringed."

What exactly is meant by the words, the people is another question. This statement from the Wikipedia article on the Constitution is intstructive:

The language "We, the People of the United States", is of singular importance in that it provides that the power and authority of the federal government of the United States of America does not come from the several states, or even the people of the several states, but from an entity identified as the People of the United States of America, with the Constitution serving as a compact or contract between the People of the United State of America, the several States, and a newly created entity: the federal government of United States of America. What is important about this language is the clarity with which it attributes the authority of the federal government not to the assent of the states, but to that of the people.

Those favoring unrestricted gun ownership could interpret "the people" as meaning every individual citizen.

Some rational thinking about the nature of firearms, today, raises other questions. For example, light weight, high powered, fully automatic weapons, such as Uzis and AK47's weren't even a concept when the Constitution was written. It's important to consider what those founding fathers would have written if such portable, concealable firepower existed at the time, especially if there were also widely publicized examples of horrific events involving their use.

Please, show us all of this crime being committed by Uzis and AK47s. Also, at the time of the constitution, there was no internet, radio, TV, cable TV, sat. radio, etc... would you use that as a valid argument against the freedom of speech?

And to answer the OPs question, I don't think that the framers were talking about the modern day national guard when they were talking about the "militia". So it would make sense (to me at least) that it is absolutely neccessary for every citizen to have the right to own a firearm, even if it is just for a militia.

 

Nebor

Lifer
Jun 24, 2003
29,582
12
76
The 2nd amendment only affirms the intrinsic right to self defense, IMO.

Second amendment or not, interpret it however you want, I say it's every free man's right to own whatever guns he wants, and if anyone should try to take those guns from him, they ought to be killed.
 

Atomic Rooster

Golden Member
Apr 23, 2004
1,914
0
0
Militia: The entire able-bodied male population of a community, town, or state, available to be called to arms against an invading enemy, to enforce the law, or to respond to a disaster.

So as one can naturally surmise, in order to have a militia, it is necessary for the people to keep and bear arms. :D
 

wirelessenabled

Platinum Member
Feb 5, 2001
2,190
41
91
Originally posted by: Atomic Rooster
Militia: The entire able-bodied male population of a community, town, or state, available to be called to arms against an invading enemy, to enforce the law, or to respond to a disaster.

So as one can naturally surmise, in order to have a militia, it is necessary for the people to keep and bear arms. :D

Keep and bear arms as long as they are a member of a well regulated militia, not just some bozo off the street. So are all gun owners members of a well regulated militia? National Guard? Great! More Iraq fodder.
 

HardWarrior

Diamond Member
Jan 26, 2004
4,400
23
81
"A well regulated militia" means two things: At the time the 2A was penned it meant people like you and I, with our own firearms, drilled and ready to defend the country. It now means the national guard by statute interpretation. This take on things in no way invalidates the second clause of the 2A. "The People" means just that according to the supreme court.
 

fleshconsumed

Diamond Member
Feb 21, 2002
6,483
2,352
136
Originally posted by: wirelessenabled
Originally posted by: Atomic Rooster
Militia: The entire able-bodied male population of a community, town, or state, available to be called to arms against an invading enemy, to enforce the law, or to respond to a disaster.

So as one can naturally surmise, in order to have a militia, it is necessary for the people to keep and bear arms. :D

Keep and bear arms as long as they are a member of a well regulated militia, not just some bozo off the street. So are all gun owners members of a well regulated militia? National Guard? Great! More Iraq fodder.

Read it again: "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."

I really don't understand how so many people can't wrap their mind around one single sentence, and I wasn't even born in the US. The second amendment reads, "A well regulated militia is necessary to the security of a free State, therefore the right of the people (who will be called to form said well regulated militia) to keep and bear Arms shall not be infringed". At the time constitution was written there was no regular army, every able bodied man, farmers, merchants, craftsmen WERE the militia, you needed your own gun to fight, therefore second amendment was written to ensure that every man could have a gun so that if duty called he could actually fight.

Now, if you think that this amendment is outdated, go ahead and pass another one, but don't try to deny people guns because you're reading it wrong.


PS: I DO NOT own a gun
 

DangerAardvark

Diamond Member
Oct 22, 2004
7,581
0
0
Originally posted by: JD50
Originally posted by: Harvey
Originally posted by: Genx87
If you look at how it is written there is clearly a comma seperating the well regulated militia and the right to bear arms. IMO they are two seperate statements.

Before we get into proper english as we speak it today. I suggest reading wealth of nations by Adam smith, written at the same time, and note the rampant use of comma's, where we would most likely use periods today.

I would guess if it was written today it would look something like this.

"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."

I'm afraid your analysis fails. In your constructino, the words before the first period are:

"A well regulated Militia, being necessary to the security of a free State."

That is not a complete sentence, and it should not be punctuated with a period. It is an introductory conditional phrase. The difference between a clause and a phrase is that a clause can stand alone as a sentence whereas a phrase cannot. The complete original sentence is:

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.

The first phrase establishes the condition or reason for the declarative statement in the clause that follows, "the right of the people to keep and bear arms shall not be infringed."

What exactly is meant by the words, the people is another question. This statement from the Wikipedia article on the Constitution is intstructive:

The language "We, the People of the United States", is of singular importance in that it provides that the power and authority of the federal government of the United States of America does not come from the several states, or even the people of the several states, but from an entity identified as the People of the United States of America, with the Constitution serving as a compact or contract between the People of the United State of America, the several States, and a newly created entity: the federal government of United States of America. What is important about this language is the clarity with which it attributes the authority of the federal government not to the assent of the states, but to that of the people.

Those favoring unrestricted gun ownership could interpret "the people" as meaning every individual citizen.

Some rational thinking about the nature of firearms, today, raises other questions. For example, light weight, high powered, fully automatic weapons, such as Uzis and AK47's weren't even a concept when the Constitution was written. It's important to consider what those founding fathers would have written if such portable, concealable firepower existed at the time, especially if there were also widely publicized examples of horrific events involving their use.

Please, show us all of this crime being committed by Uzis and AK47s. Also, at the time of the constitution, there was no internet, radio, TV, cable TV, sat. radio, etc... would you use that as a valid argument against the freedom of speech?

And to answer the OPs question, I don't think that the framers were talking about the modern day national guard when they were talking about the "militia". So it would make sense (to me at least) that it is absolutely neccessary for every citizen to have the right to own a firearm, even if it is just for a militia.

Yes, please show me all this automatic weapon crime. I can only think of one off the top of my head. And that resulted in no fatalities other than the criminals. Highly publicized? Yes. Fairly publicized? No.
 

Jaskalas

Lifer
Jun 23, 2004
33,425
7,485
136
Originally posted by: Atomic Rooster
Militia: The entire able-bodied male population of a community, town, or state, available to be called to arms against an invading enemy, to enforce the law, or to respond to a disaster.

So as one can naturally surmise, in order to have a militia, it is necessary for the people to keep and bear arms. :D

Correct, but in today's world we surmise that a people must first be owned by their government. Why do I say this? Based on their view of militia, a state determined and enlisted group of trained soldiers, a selected few and probably only when officially doing government bidding.

Where as the entire PURPOSE of the founding of this country was to protect us from that very same government. Therefore the militia would obviously be the average person, because in those days the average person WAS the militia.
 

Blain

Lifer
Oct 9, 1999
23,643
3
81
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."


- "A Non-American Reading Of the American Declaration of Independence" -
 

smack Down

Diamond Member
Sep 10, 2005
4,507
0
0
If the first part "A well regulated militia ..." means anything it means the people have the right to form militia. Other then that it is just a statement of fact. Nothing implies that people only have the right to keep and bear arms when part of a militia.
 

KB

Diamond Member
Nov 8, 1999
5,396
383
126
Since the 2nd amendment allows the militia to own guns, you need to know who is in the militia.
http://en.wikipedia.org/wiki/Militia_(United_States)

The reserve militia[3] or unorganized militia, also created by the Militia Act of 1903 which presently consist of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia. [2]


http://www4.law.cornell.edu/us..._00000311----000-.html

(b) The classes of the militia are?
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
 

SirStev0

Lifer
Nov 13, 2003
10,449
6
81
The bill of rights were written to protect the people from the government. It was a set of rules that were never to be messed with that kept the constitution and the people in power under it from becoming tyrannical. Is it a huge surprise that the second amendment comes second on the list? I hope not. This amendment in essence give the people (not the government) the right to keep themselves armed in order to defend their other rights and If they feel there is no other way to defend their rights, be able to overthrow the government if necessary. They wouldn't have made it second, right after the first and most important, if it wasn't also epiccaly necessary. It is the right of the people to have arms in order to hold off or stand against the state or federal armies.

I say again, the bill of rights is for the people not for the state or federal government. They wrote them for the people.
To say that "militia" is meant to signify a government regulated and controlled army is a huge misunderstanding of why they wrote the bills to begin with...