PDA

View Full Version : Question about the 2nd Amendment (well regulated militia)


honkylips
April 28, 2009, 02:36 AM
First off, let me preface by saying that I am 100% an advocate of the right to keep and bear arms. That being said, I've always wondered about the wording of the 2nd Amendment. The part about the 'well regulated militia' has always confused me a bit. They way I read it, I always take it to mean that the public has the right to keep/bear arms for the purpose of maintaining the aforementioned 'well regulated militia'.

Can somebody explain the significance of this part of the amendment. It's always kinda made me wonder. Like I said, the wording of amendment, to me, never translates to the right to keep/bear arms for all individual citizens.

Again, I am 100% pro gun, and I practice my right to carry. I've always wondered about this, and have never really seen a good explanation. Just looking for some enlightenment here. Thanks.

HiBC
April 28, 2009, 04:11 AM
This is my understanding,which could be wrong.

George Washington hired Baron VonSteuben to help make his men more effective.VonSteuben made up a training pictorial booklet that showed the steps of loading,aiming and firing in the fashion of the time.This booklet was called "Von Steubens Regulations"

And so,it seems,"well regulated" meant,in this context,a firearms proficiency which,if duty called on the citizen,would allow him to be militarily effective .
At that time,volley fire in ranks was still employed,I think.So,the rank might be well regulated if they all placed effective fire in the same general direction.

I'm thinking of how the term "regulated" was used if the folks at Holland and Holland were making a fine double rifle,and would make both barrels shoot true to the sights.

Then,in WW2 an aircraft crew cheif might regulate the 50 cals on a p-51 Mustang,making all the guns shoot to the same cone of fire,or "regulate the guns" might be applied to artillery,in all cases,it is about getting multiple guns to deliver effective fire.Thomas Jefferson might have a well regulated set of Manton duelling pistols.
And,for what it is worth,"security of the free state",perhaps,rather this means not the political entity "state" but "the state of being free.Liberty.

So,to paraphrase, To preserve a state of being free,the common citizens may need to drop the tools of trade,pick up their arms,and come together to be an effective fighting force,so,the right of the people to keep and bear arms shall not be infringed.

Actually sounds rather Swiss.

divemedic
April 28, 2009, 06:03 AM
Change the wording a little, and see if it makes sense now:

"A well trained faculty, being necessary to a good school; the right of the people to own and read books shall not be infringed."

Does this mean that the people only have the right to own and read books if they are students of the school?

Jofaba
April 28, 2009, 06:29 AM
The way I see it, punctuation is key here.

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.

Of course, couple that with the definition of "well regulated", "militia", "free state", & "the people" come into play.

Also, keep in mind that the Bill of Rights outline "INDIVIDUAL" rights, the rights of the individual. I hate to quote any one source online but as basic a search return as it is, Google's Answer.com worded it pretty well:

The Bill of Rights is commonly viewed as consisting of the first ten articles of Amendments to the Constitution of the United States of America. But it is the specific guarantees of individual liberties in the first eight amendments that the public normally regards as the Bill of Rights. The Ninth and Tenth Amendments provide generally that rights not specified and powers not delegated to the federal government in the Constitution will remain with the people and the states.

The Good: The Bill Of Rights is not very wordy, and is pretty direct.

The Bad: This simultaneously leads to absolutes and interpretations, depending on who is reading it and breaking it down for discussion.

The "Militia" part gets misinterpreted, even as a dated phrase, possibly because it appears elsewhere in the document about quartering. Depending on who you're debating, if they hark on this fact it makes it harder to explain the definition of a Militia because they may not be taking the historical timeline into account(assembly of a Militia, versus the existence of an active Militia).

But the point remains that your average Joe took his personal firearm and bullet casts, and went to war. If it wasn't for those personally owned firearms, we very well may have lost. So when they formed the structure of basic individual rights, they knew how important it was to be able to protect everything that they were about to create as a basis for living this free life that they so wanted. Without the 2nd amendment, there is no way to protect the other 9.

We were lucky to have such incredibly intelligent and far-seeing people designing this country.

--

Divemedic, wow that's a great point. I drove home a similar replacement argument with my father last night. Following an argument on how "these days" it's up to the cops to stop crime, my mother came home and he mentioned that he found a fire extinguisher while cleaning his truck and I proceded to argue "what in the world do you need a fire extinguisher for? The fire department is RIGHT DOWN THE STREET!" He brushed it off conversationally, but I could see that it struck home in his head. He made an immediate connection and even though he dismissed it, you could tell it unlocked a door or two against the argument.

Bud Helms
April 28, 2009, 06:38 AM
L&CR ... moving

BlueTrain
April 28, 2009, 07:19 AM
The early colonists had a fear of standing armies, they having had bad experiences with them, generally speaking, and some of those experiences they brought with them from Europe. The militia was considered necessary and they were used in fighting the French and the Indians. Many of the Revolutionary War officers and men had experience in that war. I do not know details of the colonial units that actually took part in the French and Indian War, however.

Mostly the members of the militia provided their own arms and equipment but evidently the colonial governments provided some as well, even though the arms were considered government property. It was the attempt to confiscate these arms by the British that really started the shooting.

The militia was not a voluntary thing. Participation was required. It was organized. It was regulated. There is no way round that. I can't imagine they were thinking of street crime when they wrote that, although if you've ever been to Philadelphia and the neighborhood where it (the Constitution) was written, you could be forgiven for thinking otherwise. One thing I do no know is where the militia district stopped. That is, there were people living in isolated rural districts that probably could not have managed a militia. There wasn't a quorum, if you follow me. As it was, in a few places I am aware of, there were actually colonial troops, later state troops, stationed on what we think of as the frontier, which at the time was roughly 300 miles from the ocean or a little further. In the next twenty years or so it had reached the Mississippi. These state troops along the frontier were sometimes known as rangers but there were never many of them. The Indians were a source of trouble along the frontier until they were defeated by Wayne.

I believe that the people who wrote the second admendment were more concerned with actually having a militia and that it was under the control of the government than with citizens carrying hideout pistols. The last thing they wanted was private armies. They didn't care much for standing armies either and the Continental Army was effectively disbanded. The existance of the militia was a given and the fact that the officers would have been the local gentry was probably assumed, though none of that was mentioned in the admendment.

I also believe the view of the citizenry towards the militia, it not being voluntary, began changing almost right away. By the time the frontier was beyond the Mississippi, you read very little about militias. The army was doing everything by then and curiously, the army was voluntary. There was a movement in the 1850s with state military units but I'm not sure if that would be called the militia.

Other places around the world that we sometimes like to point to when discussing this subject, like the Boers in Africa and the Swiss (in Switzerland), unfortunately also end up being the same story. They aren't (or weren't) voluntary and they used government issued arms, if nothing else. And the worst thing is, no matter how you define it, I'm too old to qualify.

wjkuleck
April 28, 2009, 07:28 AM
"Well regulated" in the 18th Century meant that the militiaman was to have a weapon suitable for military use, the accompanying accouterments, and clothing and gear of a suitable nature.

"Well regulated" meant that every citizen should have the current military weapon on hand, and to be proficient in its use. The Swiss have had a "well regulated" militia, with a military rifle in each militiaman's closet at home (this may have changed/be changing, but the example is still valid).

"Well regulated" had little or nothing to do with the 21st or even 20th century definition of "regulation."

Regards,

Walt

alloy
April 28, 2009, 07:29 AM
If i was giving an uneducated layman's detailed analyzation, i read it 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.

An actual official militia, might be required one day for defense from XYZ, so folks have the right to keep arms, don't fool with it.

I try not to read too much into things, i don't think they were speaking pig-latin. I have alternative readings depending on the commas, definition of state and phrase placement swaps, but all of them still hinge on that last shall not be infringed bit.:)

Al Norris
April 28, 2009, 08:58 AM
It's rather amazing, to me at least, how many times we have to explain this. It's not a slam on any individual, more it's a slam on our educational system, that the founding documents of this nation are so well hidden from (students) view. sigh.

Back in the 18th century and for much of the 19th century, the English Language was bereft of standardized punctuation (as we know it today). It was more of an individualized stylistic device. Therefore, to try to use punctuation as a means to understanding the words, is at best a faulty premise to begin with. At worst, it's plain futile.

"A well regulated militia, being necessary to the security of a free state,"[i] is a prefatory clause and of and by itself, an incomplete statement. A sentence fragment, as it cannot stand alone, without adding some wording to complete the thought.

[i]"The right of the people to keep and bears arms, shall not be infringed," is however, a complete thought and stands alone as a complete sentence.

The nature of crafting a prefatory clause to such a statement, merely provides one reasoning (justification) behind the function of the statement. Is it the most important reason for the operative clause? That's a debatable point.

Law Professor Eugene Volokh, has written an excellent paper on the subject of prefatory clauses, their uses in Colonial law and legal writings. You can read it here (http://www.law.ucla.edu/volokh/common.htm).

The operative clause, on the other hand, emcompasses the actual right, and was written to prohibit the national government. The legal debate will, in time, detail the scope of this right, as it is applied to its citizens and what prohibitions it contains to the government.

What is not debatable, at this point in time, is that the Supreme Court has decoupled the prefatory clause from the operative clause.

BlueTrain
April 28, 2009, 09:02 AM
So what some of you folks think it means is that the 2nd admendment gives you the right to carry a concealed weapon with no government regulation. Right? Or am I misreading some of the comments here. Maybe the commas are in the wrong place or something.

vranasaurus
April 28, 2009, 09:27 AM
So what some of you folks think it means is that the 2nd admendment gives you the right to carry a concealed weapon with no government regulation. Right? Or am I misreading some of the comments here. Maybe the commas are in the wrong place or something.

No right is absolute. What regulation of individual rights is permissible is not dependant ont he prefatory clause. The first amendment has no such clause but it is certainly not absolute.

The point being made above is that "well regulated" in the second amendment has nothing to do with allowing gun control.

Absent the prefatory clause some gun control would still likely be allowed. I can almost assure you that "well regulated" will not be cited as the reason for allowing it. The arguments and reasons used to regulate the first amendment will probably be used in some fashion to allow regulation of the second.

ZeSpectre
April 28, 2009, 09:40 AM
in the parlance of the day, 'well regulated' meant "properly equipped and trained".

So what some of you folks think it means is that the 2nd admendment gives you the right to carry a concealed weapon with no government regulation.

Well, think about this. If the ultimate purpose of the 2'nd Amendment was to act as a "check and balance" on the Government, does it make any sense that said Government has the power to regulate that "check and balance"?

or, as I saw quoted once someplace...

The citizens of the United States are a free people who might need to be armed in order to defend the Nation. Disarming the people is, therefore, not allowed.

sundog
April 28, 2009, 09:41 AM
Read the amicus briefs for Heller. For that matter, read the decision also. Good lesson in American history.

azredhawk44
April 28, 2009, 09:59 AM
Here's the text:

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.

Here's the interpretation of HCI, VPC, Brady and friends:

A well regulated State shall not be infringed.

They seem to forget quite a few words when reading it. :p

Just another voice in the dark (with dawn on the horizon), shouting out that "regulated" means well practiced and equipped, "people" means people like everywhere else in the Constitution, and Militia has the same connotation as the Minutemen, Training Bands, and Alarm Lists that were familiar to the Colonials of the day.

"Militia" membership or lack thereof does not preclude the "people" from keeping and bearing arms, or seeking regulation (traditional interpretation, not modern) of their arms.

Brian Pfleuger
April 28, 2009, 10:04 AM
So what some of you folks think it means is that the 2nd admendment gives you the right to carry a concealed weapon with no government regulation.

There's more to the 2A than concealed weapons. The anti's want to eventually ban all firearms of all kinds.

So far as "no government interference", just like the first amendment is regulated to make for reasonable safety for the people, so must be the second. In the case of The First, it might mean no shouting "Fire!" in a crowded theatre. In the Second, it might mean restrictions on RPGs and similar weapons. On the opposite end, banning items like "handguns" or "assault rifles" is the equivalent of prohibiting free exercise of religion or shutting down newspapers that oppose government policy.

In short, there are limits... on both ends.

ZeSpectre
April 28, 2009, 10:11 AM
In the case of The First, it might mean no shouting "Fire!" in a crowded theater.
I'm always puzzled by this example since it isn't actually illegal to shout "FIRE" in a crowded theater (especially if there IS a fire).

Brian Pfleuger
April 28, 2009, 10:16 AM
I'm just using it as an example. It would be illegal if there was not a fire and you create a panic/riot. It just shows that the right to speak freely is not absolute. We could just as easily use the example of religious ceremonies which use illicit drugs as being illegal, generally. Another good example is that you can not make threats against the President, which is also "technically" a free speech violation.

ZeSpectre
April 28, 2009, 10:36 AM
EDIT - Realized I was about to hijack this thread.

jfrey123
April 28, 2009, 10:42 AM
I am not an expert, but I did stay at a Holiday Inn once....

Short answer: No standing army back in those days. Army was a group of citizens coming together to form a militia, and they all needed to bring their own guns, hence why the need for armed citizens.




Long answer: British had tried to disarm the colonist prior to the revolution. After we won the war, the new Federal Government wanted states to sign the contract to be under the new United States of America. The States wanted to retain the right for the citizens to bear arms, because we never had a standing army before. The "army" back then was a General going from farm to farm, saying "I need Militia Men" and the men would grab arms and come fight as needed.

maestro pistolero
April 28, 2009, 10:42 AM
What is not debatable, at this point in time, is that the Supreme Court has decoupled the prefatory clause from the operative clause.

Do you mean to say that the operative clause may stand on it's own, or that the prefatory clause is no longer valid, or both?

maestro pistolero
April 28, 2009, 10:44 AM
So what some of you folks think it means is that the 2nd admendment gives you the right to carry a concealed weapon with no government regulation.

If you mean like in Vermont or Alaska, then yes.

BlueTrain
April 28, 2009, 10:55 AM
George Mason, gentleman planter and neighbor to George Washington, had a hand in drafting some of the ideas that were covered in the bill of rights. I take particular delight in pointing that out because my wife is a direct decendant of George Mason (which I have no doubt mentioned here before many times), she being the great-granddaughter of his great-grandson. One of Mason's granddaughters married General Samuel Cooper, CSA, and another married Robert E. Lee's brother and was the mother of Fitzhugh Lee. This, after all, is Virginia, where we worship ancestors. Most of that has absolutely no bearing on the issue at hand but I enjoy teasing my wife over George Mason's role in the bill of rights.

Mason had more than a little to say on the subject of the right to bear arms, unfortuately most of which was not voted on by any legislative body. But it is still interesting reading. In any event, I suspect that they would have all found our present twisting of words, commas, and meanings to be amusing.

honkylips
April 28, 2009, 11:28 AM
So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

Again, don't misread my intentions, as I am all for the RKBA, I just always wondered about this and have never heard the appropriate answer.

Thanks for all the replies. Very interesting/informative reading.

Brian Pfleuger
April 28, 2009, 11:31 AM
So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

Because, as stated above, the "Militia" is only an example, one reason among many, it is not the singular, defining purpose for the amendment. If it were then I suppose it would make a lot more sense to have it written as:

"So long as there is a well-regulated militia,..."

azredhawk44
April 28, 2009, 11:32 AM
since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

Joe Citizen has an inherent right to lobby his community and raise a militia or posse in support of law or in defiance of tyranny.

Just because he is not currently a member of a Militia does not mean he cannot come to join a Militia. He needs to be well practiced (regulated) so that he can be of use to that militia.

And... Joe is a member of the "unorganized Militia" mentioned in US Code.

ZeSpectre
April 28, 2009, 11:35 AM
So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

They didn't call themselves "militia" but when hurricane Andrew slammed Florida you sure saw local groups form pretty damned quickly to keep the peace in the absence of "official" .Gov intervention.

I guess what I'm saying is that the need for a localized, grass roots, ability to respond to an emergency hasn't gone away in spite of political brainwashing attempts to say it has and that only "the government" could possibly handle situations.

The media demonizing of the term "militia" has been very effective so folks shy away from that term now, but go out into rural America and you'll find that local "committees" still exist aplenty.

Tennessee Gentleman
April 28, 2009, 12:00 PM
The Militia that the 2A speaks of no longer exists. It has become the National Guard. The anti-gunners knew this and so tried to link the private ownership of firearms with the said defunct militia. Heller took care of that problem by decoupling the two clauses and declared that the individual citizen had the RKBA independent of service in the militia.

The "unorganized" militia defined in the Militia Act of 1903 is but a statutory construct that has no rights, duties, or responsibilities. It is merely a pool of people that might be drawn from to fill the organized militia which is the National Guard. BTW that pool by law is defined as able bodies males between the ages of 17 and 45.

USAFNoDak
April 28, 2009, 12:08 PM
peetzakilla posted:So far as "no government interference", just like the first amendment is regulated to make for reasonable safety for the people, so must be the second. In the case of The First, it might mean no shouting "Fire!" in a crowded theatre. In the Second, it might mean restrictions on RPGs and similar weapons. On the opposite end, banning items like "handguns" or "assault rifles" is the equivalent of prohibiting free exercise of religion or shutting down newspapers that oppose government policy.


Here's an example I've come up with that may help to explain things. Let's look at the first amendment and the right to free speech.

1. can the government prevent you from expressing your opinion, with a pencil and paper, in your own house? No way! (analogous to the right to "keep" arms").

2. can the government prevent you from having a pencil and a notebook to write your opinion, in plain view, in public, even if your opinion disagrees with a government policy? No way. (analogous to the right to "bear arms").

3. can the government prevent you from flying an airplane, for which you do not have a pilots license, and sky writing your opinion above New York City airspace? Yes they can! "analogous to "can I keep and bear any arms I darn well please".

Now, on point #3, you can certainly "keep" an airplane on your property with no pilots license. You could probably legally fly it on your own property without a license. But you can not necessarily fly it off of your own property, even it you intend to use it to skywrite a political message. Also, you could not have a nuclear bomb on board that aircraft, whether it left your property or not.

I know this is not a perfect explanation, but it has some relevance, IMHO.

BlueTrain
April 28, 2009, 12:53 PM
I think there still exists a need for a good, old-fashioned militia, at least in places. It might be that very few people would care to be part of it but it might be that was the case in 1800, too, but that's a different problem, though not insignificant. On this particular point, it could be noted that during the colonial period in North America, not counting Mexico, there weren't many people and everyone was needed when called. That's not so much the case anymore and that puts the whole concept of the militia as the whole body of the people, otherwise limited by age, etc., up in the air.

Sometimes I think "we" (gun owners) think that government is the problem and that, somehow, "we" have nothing to do with government, which is simply not so. If "we" are just a small minority, then, well, that's a different problem. But I really don't care to see any sort of local self-appointed group of people start enforcing their own laws. No such group is a militia in the American sense of the word. That sounds like something from a third-world country, complete with war lords.

I wrote in another thread some of my thinking on the militia a few months ago but it went nowhere. I guess may it is irrelevant these days. But private ownership of firearms should not hang on an interpretation of the 2nd admendment.

USAFNoDak
April 28, 2009, 01:30 PM
The states should still be able to call forth their citizens to help protect vital areas in case of emergencies. Those citizens may need firearms and could bring their own. Will we always be able to rely on the federal govt. to keep us safe? Ask the folks down in New Orleans. Ask the folks in LA during the Rodney King riots. Ask the folks in Florida who defended their neighborhoods after a hurricane devasted them. Should we always rely on the federal government to keep us safe? God, no! If it comes to repelling a foreign enemy attacking our shores, then yes, they are our first line of defense. But what if the federal govt. would fail at some point? It's not likely to happen at this point in time, but what about at some point in the future? Hubert Humphrey had a famous quote about the second amendment.

"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
-- Hubert H. Humphrey, Senator, Vice President, 22 October 1959


The militia referenced in the Second Amendment was not about the national guard. It was about citizens showing up with their own arms to perform necessary, though temporary, military type functions and duties. It was to hold the federal, standing army in awe so as to avoid any usurpation of power by the feds through the force of their army.

In the nation we live in today, the militia has become an anachronist idea for the most part. However, there could be a future event where it will be required that men stand up and be counted to defend their families, their communities, their states, and their lives. No one holds a crystal ball.

At the very least, militia or no militia, the right of the people to keep and bear arms still exists in the United States. The right was deemed a natural right by the founders and they claimed that governments were formed to SECURE those natural rights. The right exists outside of any government, even though certain forms of governments do not seek to SECURE it.

Hellbilly5000
April 28, 2009, 01:36 PM
mi·li·tia Listen to the pronunciation of militia
Pronunciation:
\mə-ˈli-shə\
Function:
noun
Etymology:
Latin, military service, from milit-, miles
Date:
1625

1 a: a part of the organized armed forces of a country liable to call only in emergency
b: a body of citizens organized for military service
2: the whole body of able-bodied male citizens declared by law as being subject to call to military service

Hellbilly5000
April 28, 2009, 01:37 PM
The term militia is commonly used today to refer to a military force composed of ordinary citizens[1] to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with multiple distinct but related meanings. Legal and historical meanings of militia include:

* Defense activity or service, to protect a community, its territory, property, and laws.[2]
* The entire able-bodied population of a community, town, county, or state, available to be called to arms.

* A subset of these who may be legally penalized for failing to respond to a call-up.
* A subset of these who actually respond to a call-up, regardless of legal obligation.

* A private, non-government force, not necessarily directly supported or sanctioned by its government.
* An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or State Defense Forces.

Tennessee Gentleman
April 28, 2009, 01:38 PM
The states should still be able to call forth their citizens to help protect vital areas in case of emergencies.

The default position is the National Guard which is under state control unless Federalized. Failing that I think most states have such provisions BUT only IF called up by the proper elected authority. Until that point no militia type right exists to those who just wish to call themselves militia and want to have military arms.

The militia referenced in the Second Amendment was not about the national guard.

Correct, but that militia became the National Guard in 1903.

The rest of your statements about RKBA I agree with.

Tennessee Gentleman
April 28, 2009, 01:41 PM
A private, non-government force, not necessarily directly supported or sanctioned by its government.

This is not what the founders wrote the 2A about. That is nothing more than a mob with guns.

USAFNoDak
April 28, 2009, 01:42 PM
Tenn. Gentle. wrote:Failing that I think most states have such provisions BUT only IF called up by the proper elected authority. Until that point no militia type right exists to those who just wish to call themselves militia and want to have military arms.



I agree, that the militia must be called out by elected authority before they can just start performing military duties. Private militias/armies are not what the militia in the Second Amendment is about. However, I'd be careful about saying that us citizens cannot have "military" arms. The antis consider the 1911 to be a "military" arm.

USAFNoDak
April 28, 2009, 01:49 PM
Tenn Gentle wrote:Correct, but that militia became the National Guard in 1903.


I disagree. Where is this written? The National Guard become part of the reserve military forces for the federal govt. and could be used by the states when not in the service of the federal govt. Thus, in a hypothetical situation, the national guard could not be used by the states to battle a federal government which had gone out of control and become tyrannical. The Feds own the Guard. The states would be left with nothing but their armed citizens to defend themselves. Also, the feds may be using the guard in foreign battles, again leaving the states with no recourse but to call forth their armed citizens if required.

This is not taking into account the fact that many military personell and members of the guard would defect or refuse to obey orders which they believed were in violation of their oath to faithfully defend the US Constitution. I don't believe you can just wave a magic wand and say that in 1903, the national guard became the citizen militia referred to in the Second Amendment.

Outside of that, it's a moot point as to whether individuals retain the right spelled out in the second amendment. Militia or no militia, individuals still own the right, and the USSC has concurred. The Ninth US Circuit Court has stated that the Second Amendment also applies to the states and local governments. We are steadily making progress on this issue.

Al Norris
April 28, 2009, 01:58 PM
Do you mean to say that the operative clause may stand on it's own, or that the prefatory clause is no longer valid, or both?
The operative clause may indeed stand upon its own merit, without regard to any militia involvement.

Way too many folks, both pro-gun and anti-gun seem to be stuck in some sort of time-warp. The entire militia clause is now a moot point. It no longer has anything to do with the RKBA, in the context the battles we are and will be engaged in.

Yes, at some point this clause may be visited by the Supreme Court. But not today, nor in any reasonable and foreseeable future.

Get over it. Continued discussion of this clause shows a distinct lack of understanding the current situation. A situation placed in motion by the Heller decision.

BlueTrain
April 28, 2009, 02:25 PM
I don't think the militia clause is a moot point any more than the part about a free press would be if newspapers disappeared. Imagine that!

In reading over these posts you might think the only government is the Federal government. There are state governments, county governments, city governments, town governments, and so on. All of these entities exist for the benefit of the population and, in theory, the whole population. All government is local. Which government failed in New Orleans--or was it just the levee that failed?

Unfortunately I might agree that perhaps in some instances all of them may have failed (not referring here to New Orleans) for the simple reason that governments seem to be avoiding their responsibilities. It isn't so easy to say why that might be the case but it might be a matter of elected (mostly elected, I suspect) officials taking the easy way out. There's always the little matter of money and we all know how people hate paying taxes. It isn't the same everywhere, to be sure, but sometimes you have to wonder just who runs the government. Who the government answers to, that is.

It certainly doesn't answer to people who want nothing to do with government.

publius42
April 28, 2009, 02:33 PM
http://www.guncite.com/second_amendment_commas.html

There is no single version that anyone can identify as "THE" official version that was ratified, because the amendment was floating around with anywhere from 1 to 4 commas, and sometimes even different wording, during the ratification process.

Sorry, Antipitas, couldn't resist, though I know it's over.

Webleymkv
April 28, 2009, 03:00 PM
A very slight rephrasing of the Second Amendment makes its meaning much clearer. Scalia noted in the Heller decision that, in slightly more modern language, the Second Amendment could be read as "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people. Therefore, as Scalia noted, membership to the militia, organized or otherwise, is not necessary to enjoy the rights enumerated by the Second Amendment.

USAFNoDak
April 28, 2009, 03:29 PM
I've forgotten the math theorems by name but I seem to recall that there is one that states:

If A=B, A=C, and C=D, then B=D.

Maybe we can apply this to the Second Amendment in some way.

A well regulated militia (A) is necessary to a free state (B). A=B

A well regulated militia (A) must be comprised of an armed section of "the people" (C). A=C

To ensure that there is always an armed section of "the people" (C), their right to keep and bear arms shall not be infringed (D). C=D.

Thus, what is necessary to a free state (B) is that the people's right to keep and bear arms shall not be infinged (D). B=D.

Well, it works for me anyway.

Tennessee Gentleman
April 28, 2009, 03:36 PM
I disagree. Where is this written?

The Militia Act of 1903. The National Guard replaced the state militias that were in existence when the COTUS was written.

Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people.

That is incorrect. The militia the 2A is talking about were the state militias. Governments (state or federal) in the USA organize, train, arm and call out the militias. There is no such thing as a "people's militia". There are today unauthorized paramilitary organizations (some are illegal) but they are not militias.

Tennessee Gentleman
April 28, 2009, 03:38 PM
The entire militia clause is now a moot point. It no longer has anything to do with the RKBA, in the context the battles we are and will be engaged in.

Well said Al!

USAFNoDak
April 28, 2009, 04:12 PM
As far as who the miltia are or what it is comprised of, this article below might help.

http://armsandthelaw.com/archives/2005/06/militia_act_of.php

Militia Act of 1792
Posted by David Hardy · 22 June 2005 05:02 PM
RKV suggested a reference to the original militia statute adopted by the First Congress might be interesting, with regard to showing what "militia" meant to the framing generation. Here's the Militia Act of 1792, and the Calling Forth Act. The former's relevant portion is:

"An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside....

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."

The Act remained on the books until 1903, when the Dick Act replaced it with the language now found in 10 U.S. Code sec. 311:

"Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(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."



The way I read the new act of 1903, there is still a requirement that every able bodied male 17-45 years old and any female who is part of the national guard are still members of the militia in some aspect. They would belong to one of two classes:

1. those who are in the national guard or Naval Militia, including any females.

2. all males 17-45 who are not part of the national guard or the Naval Militia.

So, it would seem to me that there is still a body of armed citizens who are not part of the national guard, who are able to be called up by states or the federal government, if necessary, to perform localized military type duties and tasks. Thus, they are militia members and they are specifically a part of what the term militia refers to in the 2nd A.

To reiterate, this has nothing to do with who has the right to keep and bear arms. It is only one part of the reasoning as to why the people's right to keep and bear arms shall not be infringed. The people have the right. This means each individual has the right. It was given to them by God, or their creator, or naturally, depending upon how each individual looks at how they got here to this good earth. But the right exists outside of any established government. Government was established to protect those natural rights which are inalienable and are bestowed by our creator. Any knot head who believes that the right to keep and bear arms is some priviledge offered to us by the government, or is somehow tied to military service of some kind, is blowing peanut oil up their own colon with a hose. I hope they have an allergic reaction.

Tennessee Gentleman
April 28, 2009, 04:27 PM
So, it would seem to me that there is still a body of armed citizens who are not part of the national guard, who are able to be called up by states or the federal government,

And you would be mistaken. Nothing in that act refers to anyone in the unorganized militia being "armed". The unorganized militia is nothing more than a pool of people who might be called up to be part of the organized militia or the National Guard. The "people's militia" is a pipe dream.

Here is a good link for you to use concerning the militia: http://www.adl.org/mwd/faq1.asp

Webleymkv
April 28, 2009, 06:02 PM
Quote:
Originally Posted by Webleymkv
Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people.

That is incorrect. The militia the 2A is talking about were the state militias. Governments (state or federal) in the USA organize, train, arm and call out the militias. There is no such thing as a "people's militia". There are today unauthorized paramilitary organizations (some are illegal) but they are not militias.


I think we are both well aware of each other's position regarding the militia and I see no reason to rehash it. It is a fact, however, that at the time the Second Amendment was drafted, every able bodied male citizen between the ages of 17 and 45 was considered a part of the militia and no distinction was made between the organzied militia and unorganized militia, it was just the militia. Being that members of the militia were expected to provide their own arms, it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia. Whether or not that remains the purpose of the Second Amendment today is another issue that we've already discussed at length. It is, however a simple fact that this was its purpose at the time of its drafting.

Regardless, it doesn't make all that much difference now because according to SCOTUS our membership and/or eligibility for the militia has no bearing on whether we enjoy 2A rights or not.

Tennessee Gentleman
April 28, 2009, 06:13 PM
it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia.

Where we disagree here is that the reason to arm the people was so that the state government could form the militia if needed. This is a crucial part of the clause and the 2A. The fairytale that many adhere to today that a militia is an unorganized, untrained, unassociated and self forming group of people who own guns was never either true or desired by the founders.

Regardless, it doesn't make all that much difference now because according to SCOTUS our membership and/or eligibility for the militia has no bearing on whether we enjoy 2A rights or not.

With this I agree.:)

maestro pistolero
April 28, 2009, 06:21 PM
Antipitas and Tennessee Gentlemen,

If the militia is a completely dead issue, how would you characterize the capacity in which the hypothetical citizens mentioned in the Nordyke opinion are serving, when defending the country against foreign invaders, as described by the court?

Isn't the preservation of the ability to raise a militia, inherent in the amendment? And if not, what about all that talk by the court of resisting a tyrannical government? Or are you suggesting that the national guard would do that on our behalf?

Jofaba
April 28, 2009, 06:37 PM
I don't know if the punctuation remarks are for me, but if you're saying that I am uneducated about American History, the Constitution, and the Bill Of Rights, then you are correct. That's why I joined this forum, to learn. It's all very interesting and while it's new to me to find history "fun", I am perhaps overly enthusiastic. But you'll see from my posts that I am open to admitting fault.

If you're saying that I am uneducated about English structure, then I do take offense. Not much, but some.

Regardless, I think you mistook what I was trying to say (if indeed that was aimed at me). I'm not talking legally the punctuation is important. I actually learned a lot from your post and it was incredibly interesting.

I was saying that it's important for the argument between an anti and a pro, so that you can get it out of the way. The anti is arguing based on the wording, so you have to get over that first hurdle. I'm saying exactly what you are, in simpler terms, that the punctuation of the statement negates that argument.

No bad blood here, I just wanted to clear that up. Dunno if I managed to do that though... =P

Webleymkv
April 28, 2009, 06:42 PM
Quote:
Originally Posted by Webleymkv
it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia.

Where we disagree here is that the reason to arm the people was so that the state government could form the militia if needed. This is a crucial part of the clause and the 2A. The fairytale that many adhere to today that a militia is an unorganized, untrained, unassociated and self forming group of people who own guns was never either true or desired by the founders.


You're reading something that isn't there. This is all I'm trying to say:

The militia was composed of the people. It doesn't matter who regulated it, authorized it, called it forth, or disbanded it. It was made of the people. No people = no militia.

At the time the Second Amendment was drafted, there was no distinction between the organized and unorganized militia. Male citizens between the ages of 17 and 45 were the militia, everyone else was not.

Members of the militia were expected and required to provide their own arms. The government did not provide the arms to the militia, but everyone who was considered a member of the militia, meaning every male citizen between the ages of 17 and 45, was still expected and required to be armed.

The preferatory clase states that because the militia is necessary, the people cannot be deprived their right to arms. Because the people, or at least a large segment of them, were the militia, the purpose of the Second Amendment at the time of its drafting was to ensure that the militia could be armed. Whether or not that remains its purpose is another issue that we've already debated, but it is a simple fact that at the time of its introduction, arming the militia was the purpose of the Second Amendment.

Webleymkv
April 28, 2009, 06:52 PM
Antipitas and Tennessee Gentlemen,

If the militia is a completely dead issue, how would you characterize the capacity in which the hypothetical citizens mentioned in the Nordyke opinion are serving, when defending the country against foreign invaders, as described by the court?

Isn't the preservation of the ability to raise a militia, inherent in the amendment? And if not, what about all that talk by the court of resisting a tyrannical government? Or are you suggesting that the national guard would do that on our behalf?

I can't speak for Antipitas and Tennessee Gentleman (though I am interested to see their replies).

It would appear to me that while the preferatory clause is not meaningless (I believe that the original purpose of the Second Amendment is still a valid one), neither is it a condition on which guarantee of Second Amendment rights hinges. Therefore, I would say that while the purpose of the Second Amendment is to guarantee the right of the militia to be armed, it also guarantees the rights of all the people to be armed.

Tennessee Gentleman
April 28, 2009, 07:06 PM
If the militia is a completely dead issue,

It is a dead issue as to the individual RKBA. Prior decisions and law was interpreted to mean that the right was related only to service in the militia and not for personal self defense.

Isn't the preservation of the ability to raise a militia, inherent in the amendment?

Yes and the states can still do it if they wish and arm them too but they don't need to because of the National Guard.

what about all that talk by the court of resisting a tyrannical government?

Dicta. The belief then (1789) was that we would have little or no standing army and that the state's militias would resist tyranny as they would be more loyal to the state and would resist a tyrannical central government. Since the militias would be larger than the standing army and controlled by the states the central government would not be able to take over.

Or are you suggesting that the national guard would do that on our behalf?

If it came to that yes, but it would not because of our democratic institutions.

Tennessee Gentleman
April 28, 2009, 07:21 PM
arming the militia was the purpose of the Second Amendment.

Actually the 2A was the result of fears by the anti-federalists that under the articles of the COTUS that the federal government had taken control of the militias and the states were afraid that the states militia would be disarmed.

Here is a good video: http://www.youtube.com/watch?v=jPBm_Tk08lo&feature=channel and even though the Professor is not progun he is historically correct.

Webleymkv
April 28, 2009, 07:31 PM
Quote:
Originally Posted by Webleymkv
arming the militia was the purpose of the Second Amendment.

Actually the 2A was the result of fears by the anti-federalists that under the articles of the COTUS that the federal government had taken control of the militias and the states were afraid that the states militia would be disarmed.


So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia and thusly ensures that the militia can be armed.

Tennessee Gentleman
April 28, 2009, 07:45 PM
So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia.

Militia of the state. The state through it's elected government had raised and armed militias (going back to their colonial charters) and 2A protected those militias. The state's choose to (probably because of cost) require the members of the militia to provide their own arms. Sometimes however, the state would provide arms to those who had none. Today, that militia is the National Guard.

Al Norris
April 28, 2009, 07:55 PM
... it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia.
Remembering that the prefatory clause was but one explanation, then yes, this is loosely correct.

I say loosely, because at that time, it was necessary for folks who lived out in the frontier, voluntarily associated and trained with one another. This was the local militia.

Often, a call to arms was given by the local magistrate or sheriff (for those jurisdictions that had them), when needed to enforce local laws against villains, ruffians or Indians (there were no such things as police, as we know them now). The call to arms was answered by the local people acting as a militia.

That was then. Nowadays, most States have legislation in place to call up the militia, even if never used.

Isn't the preservation of the ability to raise a militia, inherent in the amendment?
Preserving the Right of the People to keep and bear arms, is integral to the authority of the State to call up a defensive force in case of invasion. This authority of the State is over and above the abilities of the US Armed Forces and the National Guard.

This also answers your part about resisting a tyrannical government. How?

The thing to keep in mind is that at the time this nation was founded, people trusted their local (as in State) government much more than this new creation, the central government (as it was called in those times). Most were not concerned over rights violations by the States. It was the Federal Government that people feared. In the context of the times, these thoughts were undisputed.

Nowadays, I suppose a scenario could be made that the Feds turned against the people and the State called the upon its citizens to defend the State. If the citizens agreed with this reasoning, then they would pose a huge obstacle to a federal takeover. However remote this possibility may be, the RKBA would stand in its (the States) stead.

However, I don't believe the scenario, above, would actually play out in that manner, as we would effectively be in another civil war. Not something to think lightly upon. Also something off topic to this thread.

Webleymkv
April 28, 2009, 07:55 PM
Quote:
Originally Posted by Webleymkv
So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia.

Militia of the state. The state through it's elected government had raised and armed militias (going back to their colonial charters) and 2A protected those militias.

While the Second Amendment did indeed protect the state militias, it did so by protecting the rights of the people (who comprised the militia). It is impossible to disarm the militia if you cannot disarm the people who compose it.

maestro pistolero
April 28, 2009, 07:56 PM
TG,

Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?

Assuming arguendo that the militia is dead, isn't this nevertheless exactly the kind of contribution to the security of the state that the second amendment was designed to protect?

Tennessee Gentleman
April 28, 2009, 08:09 PM
it did so by protecting the rights of the people (who comprised the militia).

No I think the preferatory clause protected the right of the state to arm the militia (so the Feds couldn't disarm it) and that the operative clause protects the right of individuals to bear arms in their own personal self defense.

Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?

I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible. We will not fight an enemy of the United States with a militia but a standing army, and navy (or air force).

Two things killed the militia; first most Americans do not like military service and didn't want to serve (this attitude is where the term "unorganized militia" first came from, which was created to get people out of serving in the militia), and second the nature of modern warfare rendered them obsolete.

44 AMP
April 28, 2009, 08:12 PM
I think we would do well to remember that the Founders considered our right to arms, assembly, free speech, and others, as "natural" rights, frequently expressed as "God given rights". In other words, rights that we, the people (as individuals) possessed, simply because we are living breathing human beings. And they considered these rights as something separate from rights pertaining to the "state".

And that the amendments of the "Bill of Rights" did not, and do not give us anything we did not posess before it was written. The BOR is a listing of restrctions, what the government is not allowed to do, and why.

Consider the important phrases such as "Congress shall make no law..." and "shall not be infringed", among others.

Tennessee Gentleman
April 28, 2009, 08:31 PM
that the Founders considered our right to arms

I think the real right there is one of self defense.

Consider the important phrases such as "Congress shall make no law..." and "shall not be infringed", among others.

That's OK as long as we acknowledge that all rights are subject to restriction and if those restrictions meet certain constitutional tests then there is no infringement of said right.

Webleymkv
April 28, 2009, 08:32 PM
Quote:
Originally Posted by Webleymkv
it did so by protecting the rights of the people (who comprised the militia).

No I think the preferatory clause protected the right of the state to arm the militia (so the Feds couldn't disarm it) and that the operative clause protects the right of individuals to bear arms in their own personal self defense.

The preferatory clause is simply an explanation of the purpose of the operative clause. The preferatory clause in and of itself protects nothing.

Quote:
Originally Posted by maestro pistolero
Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?

I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible. We will not fight an enemy of the United States with a militia but a standing army, and navy (or air force).


Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

The salient policies underlying the protection of the right to
bear arms are of inestimable importance. The right to bear
arms is a bulwark against external invasion. We should not be
4508 NORDYKE v. KING
overconfident that oceans on our east and west coasts alone
can preserve security. We recently saw in the case of the terrorist
attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.1 Second, the right to bear arms is a protection against
the possibility that even our own government could degenerate
into tyranny, and though this may seem unlikely, this possibility
should be guarded against with individual diligence.

ZeSpectre
April 28, 2009, 08:34 PM
I have to say that this has been a lot more interesting than the previous couple of discussions I've followed on this topic.

Tennessee Gentleman
April 28, 2009, 08:43 PM
The preferatory clause is simply an explanation of the purpose of the operative clause.

Which was the right of the state to arm a militia and the right of the individual to protect himself personally.

Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

Again it is dicta and not law. He is free to his opinion which in the issue here IMO he is no better informed than I. However, he is talking about small scale incursions by terrorists and not a conquering large scale invasion from another nation state which is what I thought MP was talking about. In the case of a terrorist the issue is self defense as would apply to a citizen not repelling a foreign army which would be opposed by our own.

Webleymkv
April 28, 2009, 09:05 PM
Quote:
Originally Posted by Webleymkv
The preferatory clause is simply an explanation of the purpose of the operative clause.

Which was the right of the state to arm a militia and the right of the individual to protect himself personally.


The amendment does not specifically protect the right of the states to arm militia nor the right of the militia to be armed because it is not neccessary. By protecting the right of the individual to be armed, the amendment makes it impossible to disarm the militia. The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.

Quote:
Originally Posted by Webleymkv
Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

Again it is dicta and not law. He is free to his opinion which in the issue here IMO he is no better informed than I. However, he is talking about small scale incursions by terrorists and not a conquering large scale invasion from another nation state which is what I thought MP was talking about. In the case of a terrorist the issue is self defense as would apply to a citizen not repelling a foreign army which would be opposed by our own.


So you disagree with the Judges opinion? Maestro Pistolero asked about the capacity to which armed citizens would serve in situations described by Nordyke. Apparently, you do not think they would serve at all. While you are certainly entitled to your opinion, that of Judge Gould carries a bit more weight that those of people who post anonymously on the internet.

Tennessee Gentleman
April 28, 2009, 09:18 PM
The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.

I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both. I think there were two purposes at work when the 2A was written and the militia of the states were one and the individuals RKBA was the other. Heller clarified this and that is what Al meant when he said the miltia was no longer an issue with the individual right. I think you are trying to in a round about way come back to your views of the militia today which I thought we weren't going to rehash?:rolleyes:

So you disagree with the Judges opinion?

Do you understand the difference between dicta and law in a court opinion? His comments on terrorists were not the issue before the court and have nothing to do with the case. Webley, you have a tendency I have noticed to cherry pick comments from court cases that you think lend credence to your arguments that have no relavence to the issue. Anyway, I answered MP's question about the terrorist's threat. BTW the Nordykes lost.

that of Judge Gould carries a bit more weight that those of people who post anonymously on the internet.

Says you.:) You only like what he says and if he said something else you wouldn't give him such weight. I never heard of the guy and could care less what his dicta says. It isn't law. Anyway, Webley I am not trying to change your mind as it is already made up.

USAFNoDak
April 28, 2009, 09:29 PM
Tenn Gentle posted:Nothing in that act refers to anyone in the unorganized militia being "armed".

I agree that nothing in the Dick Act of the Militia Act of 1903 mentions anything about anyone being armed. However, the second amendment does mention the individual right to keep and bear arms. One reason is so that citizens may either be called forth or volunteer for militia duty, under authority of government or law enforcement officials, and bring their own arms to do so. Thus, the unorganized militia, is comprised of all males ages 18-45 and those women who are part of the National Guard. Those members are not required to have arms, however, they have a right to keep and bear arms. That was my point. I never said that the 1903 law stated that the unorganized militia was to be "armed". You misread my post.

maestro pistolero
April 28, 2009, 09:37 PM
I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible.

Nor answer the question directly, with all due respect, and there is much.

I fail to see how a nuclear weapon would prevent a surreptitious attack through our demonstrably porous borders. We haven't made so much as a dent in the wholesale flow of contraband and undocumented individuals from the south.

I am not suggesting an unprofessional force to deal with the border, only pointing out our vulnerability, and the irrelevance of a nuclear deterrent in domestic defense.

We forget so quickly how a determined, creative enemy is capable of wreaking untold havoc in a single day. If 9/11 was only the start of an invasion, and not an isolated set of planned atrocities, we might be thinking a little differently about the role of armed citizens for immediate defense of communities. But our sense of invincibility is resilient, and illusory, in my opinion.

Certainly the professional forces are the real deterrent, but they are slow to mobilize. The people, on the other hand are everywhere. That, in part, is why I believe the founders considered the whole of people the militia.

I think we overlook the wisdom of that idea at our own peril. I am not ready to decide that the whole idea of the militia, or at least the capability of raising one, is useless and outdated.

Tennessee Gentleman
April 28, 2009, 09:40 PM
One reason is so that citizens may either be called forth or volunteer for militia duty, under authority of government or law enforcement officials, and bring their own arms to do so.

Again, that is not the purpose of the unorganized militia, it has no other purpose than the one I reported earlier. Did you take a look at the link I provided?

The unorganized militia laid out in the Militia Act of 1903 is not the well-regulated militia that the 2A refers to. You are mixing up militias. The proper historical lineal descendent of the 2A militia is the National Guard.

Also, IF and that's a huge one, such a militia were ever called I suspect the states would supply the weapons if for no other reason pure logistics.

Tennessee Gentleman
April 28, 2009, 09:54 PM
Nor answer the question directly, with all due respect, and there is much. I fail to see how a nuclear weapon would prevent a surreptitious attack through our demonstrably porous borders. We haven't made so much as a dent in the wholesale flow of contraband and undocumented individuals from the south.

You said "foreign invaders" and since I did not see what you were talking about (I didn't look at Nordyke for the specific quote) I assumed you were talking about invasion of a foreign army. I would suggest next time to provide the quote directly so I know what you mean.

As to our vulnerability to terrorists I have no argument there. However, I see that as a LE job and not one for an unauthorized untrained miltia. I would be concerned about a "citizen militia" trying to do a LE job and getting caught inbetween the two and causing needless havoc.

The people, on the other hand are everywhere.

And generally untrained and unorganized to resist much more than attacks against their direct person. But I do support RKBA and CCW very much so do I think that helps us in general? Sure, but that is not a militia.

I am not ready to decide that the whole idea of the militia, or at least the capability of raising one, is useless and outdated.

I would talk to your state government then and see why they won't raise one. They can if they wish. Why do you think they don't?

USAFNoDak
April 28, 2009, 09:55 PM
The Second Amendment "grants" nothing. The right to keep and bear arms is not a right granted by the Second Amendment, nor is it in any way dependent upon it for it's existance.

A right is a natural thing that individuals possess. The right to keep and bear arms exists outside of any government entity. A state is a government entity. The states had the "power" to arm their militias which were comprised of a subset of "the people" at the time. The Second Amendment stopped the "Central Government" from disarming the people, and one reason for this was to make sure that the states had well regulated militias, which could not be disarmed since the people could not be disarmed. If the state militias were comprised of a subset of the people, and all of the people had their rights to keep and bear arms secured by the Second Amendment, then the subset of people comprising the state militias also had their rights to be armed protected. By logic then, the state militias could not be disarmed by the "Central Government".

The Second Amendment prevents disarmament of the state militias through the protection of the people's right to keep and bear arms. The two clauses are connected, but the operative clause is not dependent upon the prefatory clause as some of the anti gun folks have tried to argue. The Heller case should put that arguement on the trash pile as we go forward with the debate. Nordyke also makes a point that the Second Amendment holds against the states as well. Thus, the states cannot disarm their citizens if this holds and gets a hearing at the USSC, eventually.

Tennessee Gentleman
April 28, 2009, 10:06 PM
The Second Amendment "grants" nothing.

I did type too fast and used grant when I meant protect. My Bad:o

The two clauses are connected, but the operative clause is not dependent upon the prefatory clause as some of the anti gun folks have tried to argue.

Agree. However, the reason the antis argued that was because the militia is defunct. Therefore if they could make them dependent on each other then they could restrict guns anyway they chose.

BTW, the 2A only protected the states and individuals from the Feds. The states, however, could disarm anyone they wished and did so with freed slaves.

USAFNoDak
April 28, 2009, 10:13 PM
Tenn Gentle:Again, that is not the purpose of the unorganized militia, it has no other purpose than the one I reported earlier. Did you take a look at the link I provided?

The unorganized militia laid out in the Militia Act of 1903 is not the well-regulated militia that the 2A refers to. You are mixing up militias. the proper historical lineal descendent of the 2A militia is the National Guard.

Also, IF and that's a huge one, such a militia were ever called I suspect the states would supply the weapons if for no other reason pure logistics.


I read the link you provided and nowhere did I see where it said that the states could not call upon the members of the unorganized militia to come forward for duty. I saw where it explained the reasoning for splitting the militia into those two areas, and I understand that some people did not want to serve in militia duties. But the law said they must, so they came up with a "work around" for the law. I don't dispute that at all. But, let's say I'm a 24 year old who got out of the army infrantry two years ago. I decide not to join the national guard after my regular tour is over, but if the SHTF, I'd like to volunteer for militia duty and bring my AR-15 and my 1911 with me. What's to say the state couldn't call up like minded individuals to help out if their own national guard was off doing duty for the feds? In the situation I just described, aren't I "legally" part of the unorganized militia?

What if the states didn't have the weapons because their national guard was using them over in Somalia or some other rat infested country?

Maybe none of this will happen in our life times. What about our kids and grand kids. What if people stop volunteering for military duty because the liberals brain wash too many kids into believing that military duty is not something that "normal" people do? Remember, the National Guard is purely voluntary.

The unorganized militia is not today's functioning militia, and the functioning militia is the National Guard. I've not said this wasn't the situation. However, when the 2nd A was written, the militia was not split as it is today. Today's unorganized militia, while being a pool of potential draftees, still has members who have a right to keep and bear arms. Maybe we will have to draft them or let them volunteer to help if the SHTF.

USAFNoDak
April 28, 2009, 10:18 PM
BTW, the 2A only protected the states and individuals from the Feds. The states, however, could disarm anyone they wished and did so with freed slaves.


Yes, but that may change with Nordyke setting some precedent. I suspect the USSC will have to take up incorporation at some point in time. If we've already got the looney 9th Circuit on board with incorporation of the Second, I like our chances with other circuit courts and the USSC. Still, nothing is for sure when dealing with our court systems.

Al Norris
April 28, 2009, 10:30 PM
They way I read it, I always take it to mean that the public has the right to keep/bear arms for the purpose of maintaining the aforementioned 'well regulated militia'.

Can somebody explain the significance of this part of the amendment. It's always kinda made me wonder. Like I said, the wording of amendment, to me, never translates to the right to keep/bear arms for all individual citizens.
When looking back at the questions asked in the OP, I see that we have strayed very far afield.

I hazard to say that the question has been answered.

The current diversion over a clause that is now disconnected from the individual right to keep and bear arms is nothing more than venting, because some want to make the militia more important than it has been in over a hundred years.

Remember, the prefatory clause stated a reason to enumerate a right of the people. The clause did not state all the reasons, anymore than the BOR enumerates all of our rights (Hamiltons fear).

Wildalaska
April 28, 2009, 10:30 PM
A right is a natural thing that individuals possess. The right to keep and bear arms exists outside of any government entity.

Wrong. No rights at all exist outside of same being defined by government itself

WildselfevidentAlaska TM

USAFNoDak
April 28, 2009, 10:30 PM
Tenn Gentle:I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both.

First of all, we've already covered the error of using "grants" rather than "protects" or "secures" when talking about rights. However, what "rights" of the states are protected in the Bill of Rights? I think it protects some of their powers, but mostly the Bill of Rights is a laundry list of no-no's for the Central Government in order that the rights of the people shall be protected. It tells the Federal government what they CANNOT do. This inherently protects our "individual rights" as well as protecting "the powers" of the states.

The 10th amendment states:

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.

I'm not sure I see any mention of states "rights" in any of the BOR.

USAFNoDak
April 28, 2009, 10:33 PM
Wrong. No rights at all exist outside of same being defined by government itself


Not according to the founding principles upon which this nation was formed. There is a right to life for every human, and governments should be formed to protect that right. Rights may not be exercised because of bad government, but the right still exists.

Al Norris
April 28, 2009, 10:49 PM
No rights at all exist outside of same being defined by government itself
Shame on you Ken! Locke, Hutcheson, Hegel, et al, would disagree most vociferously. Dare you dis the enlightenment? :eek:

Tennessee, Ken was baiting me.

Webleymkv
April 28, 2009, 10:57 PM
Originally posted by Tennessee Gentleman
Quote:
Originally Posted by Webleymkv
The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.

I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both. I think there were two purposes at work when the 2A was written and the militia of the states were one and the individuals RKBA was the other. Heller clarified this and that is what Al meant when he said the miltia was no longer an issue with the individual right. I think you are trying to in a round about way come back to your views of the militia today which I thought we weren't going to rehash?


This has nothing to do with my views on the militia. None of the amendments in the Bill of Rights guarantees any rights to the states. Amendment Ten mentions the state in that certain powers are delegated to it, but the amendment does not guarantee them any rights. Amendments One through Eight, in fact, specifically guarantee rights to the people rather than the states. The only rights guaranteed to the states in the Bill of Rights are guaranteed by extension through the people as it would be impossible to strip a state of rights such as speech, press, etc. without stripping the people of that state of their rights. No guarantee of a collective right (afterall, a guarantee of right to a state is a collective right) is necessary since an individual right extends into the collective.

Quote:
Originally Posted by Webleymkv
So you disagree with the Judges opinion?

Do you understand the difference between dicta and law in a court opinion? His comments on terrorists were not the issue before the court and have nothing to do with the case. Webley, you have a tendency I have noticed to cherry pick comments from court cases that you think lend credence to your arguments that have no relavence to the issue. Anyway, I answered MP's question about the terrorist's threat. BTW the Nordykes lost.


I understand the difference, however since there is no precedent in law to guide us one way or the other, dicta is the best we've got. Considering the study that is typically necessary to become a judge, I take Judge Gould's interpretation more seriously than those of someone posting anonymously on the internet. With regards to cherry picking, I quote many of the same sources you do, however I typically quote more of their context so as to more fully illustrate their meaning. Also, I fail to see how quoting dicta from the case that is under discussion equates to cherry picking. I quoted this passage because it is representative of what Maestro Pistolero's question was about, a question which you answered in a very roundabout and unclear way.

Originally posted by Wildalaska
Quote:
A right is a natural thing that individuals possess. The right to keep and bear arms exists outside of any government entity.

Wrong. No rights at all exist outside of same being defined by government itself


Well, according to the Heller and Nordyke decisions, certain fundamental rights predate their enumeration by the Constitution.

zxcvbob
April 28, 2009, 11:08 PM
I'm just using it as an example. It would be illegal if there was not a fire and you create a panic/riot. It just shows that the right to speak freely is not absolute. We could just as easily use the example of religious ceremonies which use illicit drugs as being illegal, generally. Another good example is that you can not make threats against the President, which is also "technically" a free speech violation.And they are punished, after the fact. And somehow this is supposed to be a justification for prior restraint against gun owners? The courts generally take a very dim view of prior restraint; it's my belief that the courts have an inherent conflict of interest in Second Amendment cases, and that's the only reason they allow it.

The entire militia clause is now a moot point. It no longer has anything to do with the RKBA, in the context the battles we are and will be engaged in.The Supreme Court in the Miller decision would disagree with you. Arms appropriate for military service are the most 2A protected class. Scalia and Thomas seem to understand that, but it wasn't an issue in the Heller case.

Wildalaska
April 28, 2009, 11:17 PM
Dare you dis the enlightenment?

I dare, I dare.:D

The only way to have a right is to define a right. The only way to define a right is to have a consensus on what the right is and/or enforce it. the only way to have a consensus on a right and/or enforce same is via a polity.

Thats why I no longer can avail myself of the ius primae noctis

WildheyalwhatsupAlaska TM

vranasaurus
April 29, 2009, 12:49 AM
Nowhere in the constitution is it written "The right of the people to form or serve in a state sponsored militia shall not be infringed."

That being the case why are we talking about the militia?

Some people like to get this grand idea that the an unorganized militia is some insanely powerful tool for fighting tyranny and that if need be they will grab their "SHTF" gun and take on the man.

If you want to understand the effectiveness of an unorganized militia in modern warfare you need to look at iraq and afghanistan. Sure they harrass American Soldiers and kill them but these unorganized militias suffer casualties in such higher numbers than we do its not even comparable. This doesn't even take into account that the American military hasn't even inflicted casualties to the fullest extent possible.

Many people think they have the skills, knowledge, and equipment to form part of a "militia". But the truth is the leadership, tactical training, and military equipment necessary (your AR15 with a train yard worth of rails and equipment doesn't count) to be an effective military force just isn't there.

Some people need to get this glorious vision of some kind of revolutionary, post apocalyptic world where they are the leader of some militia out of their heads.

The fact that the original concept of the militia is dead does not in anyway diminish or restrict the RKBA.

maestro pistolero
April 29, 2009, 02:53 AM
I would talk to your state government then and see why they won't raise one. They can if they wish. Why do you think they don't?

For the obvious reason that we are not presently in a crisis that warrants it.

Do you contend that they wouldn't call up armed citizens if there was cataclysmic collapse sufficient to overwhelm the professionals?

Would the state government let genocide proceed rather than call up an armed citizenry because of a deficit in training?

alloy
April 29, 2009, 06:20 AM
Call it a militia or not, an armed citizenry is something. It's a mexican standoff, in and of itself it's a deterrant, it functions without functioning, and it never needs to organize...because it has the arms. It just is. It is either a thorn in the side of unforseen, unchecked power, or it isn't...
It has and does work, regardless of what you want to call it. The proof that it works, is that we are all still able to be armed for our personal protection.

stargazer65
April 29, 2009, 07:21 AM
The only way to have a right is to define a right. The only way to define a right is to have a consensus on what the right is and/or enforce it. the only way to have a consensus on a right and/or enforce same is via a polity.

This consensus was determined in eternity past by the Trinity (See Genesis 1) not by a government entity.;)

Sorry, I think we're getting way off topic.

Glenn E. Meyer
April 29, 2009, 09:34 AM
The 2nd Amendment and Shiva, Vishnu and Brahma are not mentioned in Genesis. That is a prohibited Starfleet research project that is probably an AOW or destructive device.

This thread is started to go in the dumper. Hint.

A philosophical discussion of whether rights exist as an abstract principle independent of humanity, such as the Pythogorean principle, or are a social consenus formed by interactions of learning, culture and our evolutionary past is fun but can get deep.

Opinions of rights and the natural course of acceptable behavior changes as civilizations rise and fall. We have a set that appear with some social history. Other cultures have different views. Now isn't that an insight.

What does it have to do with militia? I think Al answered that point.

vranasaurus
April 29, 2009, 10:01 AM
The 2nd Amendment and Shiva, Vishnu and Brahma are not mentioned in Genesis. That is a prohibited Starfleet research project that is probably an AOW or destructive device.

***, over!:D

USAFNoDak
April 29, 2009, 10:07 AM
***, over!

I'd say this thread is over. It's run it's course.

Al Norris
April 29, 2009, 10:07 AM
What Glenn was trying to tactfully say, was that the thread has run its course.