"A Well Regulated Militia"

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Fern

Elite Member
Sep 30, 2003
26,907
173
106
Originally posted by: Rainsford
-snip-...I'm just curious what people think about the wording of the 2nd amendment.

To put it quite simply, I believe that the 2nd embodies both a collective right (militia) and an individual right (people).

The SCOTUS hasn't given us much an insight to their thinking. I believe there have only been two 2nd Amendment cases. The last one, which was fairly early in the 1900 IIRC involved a guy transporting a sawed-off shotgun (illegaly too short).

The SCOTUS could have, but did not, ruled he had no right to the weapon because he was not part of any militia. Instead, they ruled that a sawed-off shotgun was not not known to used in or suitable for use in any militia.

IMO, they have a problem on their hands - in today's militia a fully auto assault weapons (as well as granade launchers etc) are what is suitable for use, and what is commonly used.

How they square their last ruling with any assualt weapon ban is difficult to forsee (or any claimed right to own a .22, too small for use in militia).

Fern
 

Nebor

Lifer
Jun 24, 2003
29,582
12
76
Originally posted by: Fern
How they square their last ruling with any assualt weapon ban is difficult to forsee (or any claimed right to own a .22, too small for use in militia).

Fern

Eh? Our military uses .22 caliber rifles almost universally. :p
 

Druidx

Platinum Member
Jul 16, 2002
2,971
0
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One of my favorites regarding the 2nd Amendment

"The People" in the First amendment means The People.
"The people" in the Fourth amendment means The People.
"The People" in the Tenth Amendment means The People.

But to gun control adovcates....
"The People" in the Second Amendment (ratified in 1791)
means the National Guard (created by act of congress in 1903)



While I completely support the right of gun ownership.
I would also support
1) A longer waiting period before purchase.
2) A required safety test. ( similar to to a hunter safety test.)
3) Require the person to show a minimal level of proficiency with it.
 

QuantumPion

Diamond Member
Jun 27, 2005
6,010
1
76
Originally posted by: HardWarrior
"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.

Beat me to it. Back then, regulated meant practiced, drilled, trained, etc.

I find it scary that lefties don't think that "the people" refers to every individual. In their mind they must be thinking "well the people is everyone, and the government represents everyone, therefore the 2nd amendment must be protecting the government's right to bear arms!". Which is precisely the opposite of what the founding fathers intended. I guess it is consistent that lefties think "the people" refers to the government, after all is that not the calling card of communist regimes?

Anyway, assuming that "the people" does indeed refer to the people. the second amendment could be clearly interpreted today as:

A well-trained militia is necessary for the security of a free state. The militia is composed of all of the people. In order for the people to be well-trained, they must have their own arms. Therefore, the right of the people to bear arms shall not be infringed.
 

SirStev0

Lifer
Nov 13, 2003
10,449
6
81
Originally posted by: Druidx
One of my favorites regarding the 2nd Amendment

"The People" in the First amendment means The People.
"The people" in the Fourth amendment means The People.
"The People" in the Tenth Amendment means The People.

But to gun control adovcates....
"The People" in the Second Amendment (ratified in 1791)
means the National Guard (created by act of congress in 1903)



While I completely support the right of gun ownership.
I would also support
1) A longer waiting period before purchase.
2) A required safety test. ( similar to to a hunter safety test.)
3) Require the person to show a minimal level of proficiency with it.

As a gun owner and hunter I agree with you to keep the riffraff from giving us a bad name... As a future gun collector (when I have a cash flow) I can see problems. I see what happened to gun collectors in the UK and all the problems they had when gun control was increased and I am worried about all the choas that will come about.

One point I want to make is this...
Right now I would very much like some gun control legislations to be passed. Our current state we are not in a crisis or some other event that will cause a knee-jerk bill to be passed that will destroy all our rights. I would very much like if some of the little things like the poster mentioned to be cleared up so that we don't end up with a "Patriot Act" of Gun Control. (In case I wasn't clear enough, by Patriot Act, I mean a knee-jerk law after a traumatic event that destroys our freedoms)
 

1prophet

Diamond Member
Aug 17, 2005
5,313
534
126
Originally posted by: Druidx
One of my favorites regarding the 2nd Amendment

"The People" in the First amendment means The People.
"The people" in the Fourth amendment means The People.
"The People" in the Tenth Amendment means The People.

But to gun control adovcates....
"The People" in the Second Amendment (ratified in 1791)
means the National Guard (created by act of congress in 1903)



While I completely support the right of gun ownership.
I would also support
1) A longer waiting period before purchase.
2) A required safety test. ( similar to to a hunter safety test.)
3) Require the person to show a minimal level of proficiency with it.

This post is for anyone that considers the National Guard as the 2nd amend. militia not for the poster above

Is this the same national guard that can be called up by the president to fight as part of the US military no matter if the war is just or not and continually extend their tours?;)

So is it the Peoples guard or the Presidents guard?:D
 

JEDIYoda

Lifer
Jul 13, 2005
33,982
3,318
126
Originally posted by: 1prophet
Originally posted by: Druidx
One of my favorites regarding the 2nd Amendment

"The People" in the First amendment means The People.
"The people" in the Fourth amendment means The People.
"The People" in the Tenth Amendment means The People.

But to gun control adovcates....
"The People" in the Second Amendment (ratified in 1791)
means the National Guard (created by act of congress in 1903)



While I completely support the right of gun ownership.
I would also support
1) A longer waiting period before purchase.
2) A required safety test. ( similar to to a hunter safety test.)
3) Require the person to show a minimal level of proficiency with it.

This post is for anyone that considers the National Guard as the 2nd amend. militia not for the poster above

Is this the same national guard that can be called up by the president to fight as part of the US military no matter if the war is just or not and continually extend their tours?;)

So is it the Peoples guard or the Presidents guard?:D

There is some debate as to who has final authority over the national Gueard-- the states or the president...
 

SilthDraeth

Platinum Member
Oct 28, 2003
2,635
0
71
Though I am completely for individuals being able to own firearms. I do believe that laws that exist to limit the type of firearms do not infringe upon the constitution.
 

Fern

Elite Member
Sep 30, 2003
26,907
173
106
Originally posted by: SilthDraeth
Though I am completely for individuals being able to own firearms. I do believe that laws that exist to limit the type of firearms do not infringe upon the constitution.

Question: If there is a "collective right" (right to have citizen militias to counter federal government power), how can you limit the weapons to people/militia without gutting the intent of the constitution?

If the fed solders get machine guns, and we get handguns and single fire rifles, how we gonna be an effective or even functioning militia?

The SCOTUS is, IMO, scared shitless of that question.

Fern
 

kylebisme

Diamond Member
Mar 25, 2000
9,396
0
0
A well regulated militia is one that will only act on consent of its ruling authority, a free state is one that derives its powers from the consent of the governed, and only a people who keep and bear arms have the power to deny such consent to an armed militia. Hence, any infringement on that right is an invitation for tyranny; and yeah, we are practically begging for it.
 

SilthDraeth

Platinum Member
Oct 28, 2003
2,635
0
71
Originally posted by: Fern
Originally posted by: SilthDraeth
Though I am completely for individuals being able to own firearms. I do believe that laws that exist to limit the type of firearms do not infringe upon the constitution.

Question: If there is a "collective right" (right to have citizen militias to counter federal government power), how can you limit the weapons to people/militia without gutting the intent of the constitution?

If the fed solders get machine guns, and we get handguns and single fire rifles, how we gonna be an effective or even functioning militia?

The SCOTUS is, IMO, scared shitless of that question.

Fern

Maybe, I didn't think that statement through clearly enough. For the most part though, if we where to attempt an overthrow of our federal government, we would need the military to back the people and not the government, or we would get slaughtered, irregardless of whether or not the laws limit what type of firearms we are allowed to own. But thats getting off topic.
 

brandonb

Diamond Member
Oct 17, 2006
3,731
2
0
This is my opinion.

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 law is written a certain way but what was the spirit of the law. Why was it written? Using the foresight of the people at the time, it was plainly obvious they wanted to give us the following rights:

1) The ability to form militias to fight off invaders.
2) Protect us from our own government provided it became corrupt.

Remember, "we the people"? If our government has rights that the people did not have (to own guns, to form armies) then our government is no longer "we the people." The government was "the people" at the time. In order to form armies, we need a line in the constitution to permit "the people" to form armies. The government is "the people" therefore, everybody has the right to form armies in this country.

If the government was no longer "the people" and was restricting citizen rights while they were gaining power, our government would be corrupt according to our own constitution. Today that is the case, militias can't be formed anymore. We can't create a new branch of the millitary completely run by the people.

Anyways. Thats why our 2nd amendment is there. It's all about checks and balances. A corrupt government is going to outlaw a way to fight against them, so thats why that was placed into our consitution.

Getting back to the constitution, alot of people in that time (and still do) write things backwards with commas, so this is how I read it:

Shall not be infringed, the right of the people to keep and bear arms, being necessary to the security of the free state, [can form] a well regulated militia.

Militia at the time was another word for army but it was formed by "the people". (Which is the premise of our country.) In order to form a militia, we need the previous statements, the right to keep and bear arms. You can't have a militia without the right to keep and bear arms.
 

K1052

Elite Member
Aug 21, 2003
46,286
33,564
136
?I ask, sir, what is the militia? It is the whole people except for a few public officials.?
-George Mason, Virginia delegate to the Constitutional Convention - 1788
 

zephyrprime

Diamond Member
Feb 18, 2001
7,512
2
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."
I don't think that's correct at all. And the first sentence is just a fragment, not a full sentence. Also, I have read the federalist papers so I know what the writing style of the day was like.

I think the sentence is actually pretty clear and probably a lot clearer than some of the more arcane sentences from the era. If the sentence were written today, it would be written as:

"The right of the people to keep and bear Arms shall not be infringed because a well regulated Militia is necessary to maintain the security of a free State."

I think we have difficulty interpreting the constitution because the conception of states rights as envisioned by the founders was totally different than what it is now. Basically, I think the constitution was not meant to directly apply to the states except for the parts that directly addressed that states. So for example, things like the freedom of speech law only applied to the federal government and the state government could override such laws within their own territory. Of course, we all know that there was that famous Supreme Court case that changed all that.

So I think the original meaning of the second amendment is that the federal government will not prohibit guns to any of it's citizens because citizens having guns is important to prohibit tyranny and foreign invasion. However, not everyone should have guns so we leave it to the militias of the individual states to regulate gun ownership.

I also think that they just assumed that every able bodied man would be in the militia and that the professional army would be minimal.
 

zephyrprime

Diamond Member
Feb 18, 2001
7,512
2
81
Originally posted by: KB
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.


Originally posted by: moonbeam
Isn't a well regulated militia unconstipated conscripts?
I guess it does. I guess what all that means is that everyone who has registered for selective service and has not disqualified himself by committing a crime is part of the "militia".
 

jonks

Lifer
Feb 7, 2005
13,918
20
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"...shall not be infringed."

Well, we already infringe on this right by passing any law at all that restricts gun or weapon ownership in any way. Some might argue all gun related laws violate 2A, but as has been pointed out, even 1A has limits. (BTW, it's FALSELY yelling fire in a crowded theater that's prohibited. If there truly is a fire, it's permitted.)

So the question is, how much infringement are the people willing to allow? "Arms" is vague, but I don't believe it applies only to guns. But I don't want my neighbor harboring nukes/rockets/etc either.

 

Fern

Elite Member
Sep 30, 2003
26,907
173
106
Originally posted by: SilthDraeth
Originally posted by: Fern
Originally posted by: SilthDraeth
Though I am completely for individuals being able to own firearms. I do believe that laws that exist to limit the type of firearms do not infringe upon the constitution.

Question: If there is a "collective right" (right to have citizen militias to counter federal government power), how can you limit the weapons to people/militia without gutting the intent of the constitution?

If the fed solders get machine guns, and we get handguns and single fire rifles, how we gonna be an effective or even functioning militia?

The SCOTUS is, IMO, scared shitless of that question.

Fern

Maybe, I didn't think that statement through clearly enough. For the most part though, if we where to attempt an overthrow of our federal government, we would need the military to back the people and not the government, or we would get slaughtered, irregardless of whether or not the laws limit what type of firearms we are allowed to own. But thats getting off topic.

In all fairness, I posed a question that no one can really answer at this time. Mostly I did so to illustrate what I think is a big problem for the SCOTUS, and why they exhbit so much reluctance to hear 2nd Amendment cases.

They have a big problem, IMO if they uphold assualt weapon (clearly a militia suitable arm) ban they must reverse themselves in the prior case. Something they are loath to do.

And If they reverse themselves they are effectively disavowing the *collective rights* interpretation of the 2nd, thus leaving us with only the *individual right*. They must then contrust some reasoning for putting limitations on individual gun ownership. Since no plain reading of the 2nd provides for any limitation, this must constructed from the penumbra of the Constitution, itself an invention of the Warren Burger Court (IIRC).

But I expect if they ever decide to hear an assualt weapon ban type case, they'll finesse the jeebus outta it somehow.

Fern
 

jonks

Lifer
Feb 7, 2005
13,918
20
81
Originally posted by: SilthDraeth
Originally posted by: Fern
Originally posted by: SilthDraeth
Though I am completely for individuals being able to own firearms. I do believe that laws that exist to limit the type of firearms do not infringe upon the constitution.

Question: If there is a "collective right" (right to have citizen militias to counter federal government power), how can you limit the weapons to people/militia without gutting the intent of the constitution?

If the fed solders get machine guns, and we get handguns and single fire rifles, how we gonna be an effective or even functioning militia?

The SCOTUS is, IMO, scared shitless of that question.

Fern

Maybe, I didn't think that statement through clearly enough. For the most part though, if we where to attempt an overthrow of our federal government, we would need the military to back the people and not the government, or we would get slaughtered, irregardless of whether or not the laws limit what type of firearms we are allowed to own. But thats getting off topic.

You want off topic? Irregardless isn't a word. Now that's off topic. Good thing my posts are inflammable ;)
 

Moonbeam

Elite Member
Nov 24, 1999
72,506
6,125
126
Originally posted by: sirjonk
Originally posted by: SilthDraeth
Originally posted by: Fern
Originally posted by: SilthDraeth
Though I am completely for individuals being able to own firearms. I do believe that laws that exist to limit the type of firearms do not infringe upon the constitution.

Question: If there is a "collective right" (right to have citizen militias to counter federal government power), how can you limit the weapons to people/militia without gutting the intent of the constitution?

If the fed solders get machine guns, and we get handguns and single fire rifles, how we gonna be an effective or even functioning militia?

The SCOTUS is, IMO, scared shitless of that question.

Fern

Maybe, I didn't think that statement through clearly enough. For the most part though, if we where to attempt an overthrow of our federal government, we would need the military to back the people and not the government, or we would get slaughtered, irregardless of whether or not the laws limit what type of firearms we are allowed to own. But thats getting off topic.

You want off topic? Irregardless isn't a word. Now that's off topic. Good thing my posts are inflammable ;)

Sorry, but irregardless is a word. So many idiots didn't know that they made it one.
 

cumhail

Senior member
Apr 1, 2003
682
0
0
Originally posted by: ProfJohn
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))

Since you like the site/page that you appear to have gotten all three of your quotes from, why not cite it?

http://www.guncite.com/gc2ndpur.html

cumhail
 

Triumph

Lifer
Oct 9, 1999
15,031
13
81
Excellent thread, a rational mature discussion on a heated topic. A rarity on this forum. :thumbsup:
 

Rainsford

Lifer
Apr 25, 2001
17,515
0
0
A lot of interesting responses here, and I actually think this has been one of the better discussions of gun rights (I take no credit for that, by the way, it was bound to happen sooner or later ;)). But I was discussing this with a friend offline and he brought up an interesting point...maybe the "militia" line has nothing to do with gun ownership at all, maybe it's about gun USAGE. After all, while a lot of people on both sides treat the issues as the same thing, it doesn't seem obvious to me that they are. A strict interpretation of the 2nd amendment says nothing at all about USING your gun, only that you may have a gun and you may carry it around with you. Perhaps this is implied in the language and intent of the framers, but then again, so is the argument for implied privacy even though that word is never used in the bill of rights...and a lot of pro-gun folks seem to disagree with reading anything at all into the bill of rights in that particular case :)

That's not to say that I don't think we have a right to self-defense, just that perhaps it's not the 2nd amendment that guarantees it. Is it possible that the first part of the 2nd amendment is saying that the usage of weapons is to be done as part of a well regulated militia, but that all Americans have a right to own a weapon and (if necessary) be part of that militia? That doesn't seem completely outside the realm of possibility to me... Just a thought, and like I said, I think a major part of this discussion is remembering that what the bill of rights strictly says is NOT the be all, end all of our rights...something the bill of rights does in fact make clear.
 

1EZduzit

Lifer
Feb 4, 2002
11,834
1
0
Originally posted by: Rainsford
A lot of interesting responses here, and I actually think this has been one of the better discussions of gun rights (I take no credit for that, by the way, it was bound to happen sooner or later ;)). But I was discussing this with a friend offline and he brought up an interesting point...maybe the "militia" line has nothing to do with gun ownership at all, maybe it's about gun USAGE. After all, while a lot of people on both sides treat the issues as the same thing, it doesn't seem obvious to me that they are. A strict interpretation of the 2nd amendment says nothing at all about USING your gun, only that you may have a gun and you may carry it around with you. Perhaps this is implied in the language and intent of the framers, but then again, so is the argument for implied privacy even though that word is never used in the bill of rights...and a lot of pro-gun folks seem to disagree with reading anything at all into the bill of rights in that particular case :)

Your stretching. Many people used their guns every day. Not only to win the war of independance and/or defend themselves, but to put meat on the table.

If you can't use the firearm then there is no logic in having a right to keep and bear a firearm.