2nd Amendment question

[ronc0011]

I am currently gathering material for a project and have run into a question that I’m having difficulty finding an answer to. I know the caliber of members on this board and figure this is the best place to find genuinely substantive answers. The question is this; I have always had just a passing familiarity with the 2nd Amendment and had always associated the 2nd Amendment with the right to self protection and the right to preserve home and country against enemies both foreign and domestic. Well now that I am actually trying to write something on this I went and looked up the 2nd Amendment which reads;

“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.”

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

I have read a number of editorials, opinions and other treatments on the 2nd Amendment and this association with the idea that one of its purposes is to defend against enemies foreign and domestic is pretty common. The problem is that I don’t see where this comes from or where this is established.


Can someone pleas enlighten me as to where this connection is made in our founding documents.

[miboso]

the right of the people to keep and bear Arms, shall not be infringedThat pretty well says it all. No restrictions, no limitations, no reason needed, no infringement by ANY governmental entity within These United States.

[ronc0011]

Well yes I’m getting that but I had always thought that there was something that listed the reasons. You know, officially, and that among those reasons was the defense of the country from enemies both foreign and domestic.

I find a lot of opinion from Jefferson and Adams and others but they are opinions and not part of any official document.

It’s just that I had always thought that there was some legally binding iteration of these ideas.

So it seems that brevity is the order of the day.

[johnwilliamson062]

THere are some quotes, excerpts from larger papers, that come from the founding fathers which support this view, but it is not written anywhere as a government document. I believe the closest you may get is the Federalist Papers, which, I believe, touch the subject on several occasions. I think the reality is the founding fathers, being surrounded by people who went through the Revolution, never foresaw a time where a significant amount of the population would think infringing on the right to bear arms would not limit general freedom. Even on these boards you will find people who do not believe in the second amendment as 'a bulwark against tyranny.' Quite a few actually. To many here it is all about CCW and HD.

[Ian0351]

I think it says it all right there. The framers of the constitution never intended for America to have a large armed force, but rather for citizens to be trained and equipped to join the state militia in times of need, or to defend their homes and farms (the police were a lot more than a few minutes away back then) against crime or tyranny. One must also consider that many of the drafters of the constitution believed that standing armies were as large a threat to liberty as an unarmed populace. In the following quote Thomas Jefferson writes about this (and other) principles considered when writing the Bill of Rights to his fellow statesman, James Madison:

"The general voice from north to south... calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modifications of these suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press, and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any. The few cases wherein these things may do evil cannot be weighed against the multitude wherein the want of them will do evil." --Thomas Jefferson to James Madison, 1788. ME 7:96

It wasn't exactly the quote I was looking for, but Thomas Jefferson is about the second most misquoted American in history, after Benjamin Franklin.

There are many other great letters and speeches by Mr. Jefferson (my favorite American statesman/inventor) at this website, hope it helps your research!

http://etext.virginia.edu/jefferson/quotations/jeff0950.htm

[Bartholomew Roberts]

You might read the recent Opinions in District of Columbia v. Heller (http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf). It is long; but they explore these issues in depth.

If you need even more detail, take a look at the amici briefs filed for the same case. After reading all of those, you will have more expertise on the subject than most law school professors.

If you need something a little easier to digest, reading-wise, www.guncite.com is an excellent resource on the Second Amendment.

[ronc0011]

Your “District of Columbia v. Heller” link takes me to a Facebook signin page. This is the URL on that link…


http://apps.facebook.com/inthemafia/remote/html_server.php?xw_controller=stats&xw_exp_sig=cac1c26042cdbd23929e32ee213e11d6&xw_time=1245226512&xw_action=view&xw_city=2&user=551311228

[maestro pistolero]

The horse's mouth:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

[BlueTrain]

It still bothers me, when people discuss the 2nd Admendment, that although the admendment is only one line long, they only quote half the line, as if that were all that were there, the other half having no bearing whatsoever on the issue, being superfulous to the right. Likewise, quotations from the Federalist Papers, quotations from letters or other writings of Jefferson, Madison, Mason or Washington are irrelevant, as they were not the result of discussions in congress and written into law or the constitution, even though they will shed light on the thinking that went on at the time.

I wonder if the Confederate States had 2nd Admendment rights?

[Vanya]

I wonder if the Confederate States had 2nd Admendment rights?

The CSA had no bill of rights as such, but they pretty much lifted it verbatim and stuck it in Article I, Section 9, starting with No. 12.

Thus:
Article I, Section 9(13) 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.

Sounds vaguely familiar... for all the good it did them.

http://avalon.law.yale.edu/19th_century/csa_csa.asp

Google is your friend. :)

[johnwilliamson062]

...even though they will shed light on the thinking that went on at the time.
That makes them extremely important as the amendments are all written much differently than they would be expressed today. The context is extremely important.

[ronc0011]

So I guess the next question is; Are there any passages in our founding documents where the founders recognize the need to guard against the usurpation of power by our own government and plainly state this need?

[OuTcAsT]

So I guess the next question is; Are there any passages in our founding documents where the founders recognize the need to guard against the usurpation of power by our own government and plainly state this need?


being necessary to the security of a free State

Note: I think that the word "state" is likely being used as a transitive verb, rather than a noun in this statement.

The context is extremely important

Bingo!

[pnac]

being necessary to the security of a free State

At last somebody said it! Thank you, outcast.

[Vanya]

So I guess the next question is; Are there any passages in our founding documents where the founders recognize the need to guard against the usurpation of power by our own government and plainly state this need?


being necessary to the security of a free State

Actually, that's less clearcut than some would wish, I think. One of the reasons for needing that "well-regulated militia" was in order to avoid having a large standing army -- the primary function of which, if it had existed, would have been to ensure the "security of a free State" by defending the nation against foreign enemies... absent a standing army, that defense would fall to the militia... hence its necessity to the "security of a free State."

But I'm sure Tennessee Gentleman will be along at any moment to chime in on this... he's far more knowledgeable than I in this area.

[Vanya]

Note: I think that the word "state" is likely being used as a transitive verb, rather than a noun in this statement.

I'm puzzled by this... transitive verbs don't typically take the indefinite article. If you mean "a state of freedom" rather than "a State" in the sense of "a Nation," it's a possible interpretation, I guess, but it's an abstract noun in that case, not a transitive verb. And I think that in 18c. usage, the capitalization of the word "State" suggests it wasn't meant as the former, but as the latter meaning of the word.

[OuTcAsT]

but it's an abstract noun in that case, not a transitive verb.

You may be correct, I was not an English Major :):o

However, the "State of freedom" is precisely what I was referring to. If taken in that context, it makes perfect sense. And capitalization did not seem to be consistent in documents of the period, at least by my observation. ETA: I do not believe the word *is* capitalized on the original document.

If you use the word state in the context I suggested, the entire article is quite unambiguous.

[pnac]

Take your pick, I'm putting my money on definition #6.

state
Main Entry:
1state Listen to the pronunciation of 1state
Pronunciation:
\ˈstāt\
Function:
noun
Usage:
often attributive
Etymology:
Middle English stat, from Anglo-French & Latin; Anglo-French estat, from Latin status, from stare to stand — more at stand
Date:
13th century

1 a: mode or condition of being <a state of readiness> b (1): condition of mind or temperament <in a highly nervous state> (2): a condition of abnormal tension or excitement2 a: a condition or stage in the physical being of something <insects in the larval state> <the gaseous state of water> b: any of various conditions characterized by definite quantities (as of energy, angular momentum, or magnetic moment) in which an atomic system may exist3 a: social position ; especially : high rank b (1): elaborate or luxurious style of living (2): formal dignity : pomp —usually used with in4 a: a body of persons constituting a special class in a society : estate 3 bplural : the members or representatives of the governing classes assembled in a legislative body cobsolete : a person of high rank (as a noble)5 a: a politically organized body of people usually occupying a definite territory ; especially : one that is sovereign b: the political organization of such a body of people c: a government or politically organized society having a particular character <a police state> <the welfare state>6: the operations or concerns of the government of a country7 a: one of the constituent units of a nation having a federal government <the fifty states> bplural capitalized : The United States of America8: the territory of a state

[OuTcAsT]

I'll take #1 for $100.00 Alex.:cool:

[Vanya]

My money's on #5: "a: a politically organized body of people usually occupying a definite territory ; especially : one that is sovereign...", or possibly even #7.

The founders didn't always go in for the clearest, most concise English usage, but I think if they'd meant #1, the Second Amendment would read something like "...necessary to securing a state of freedom..." or just "...necessary to secure freedom..."

It requires too much of an effort of will for me to interpret the actual wording in that way -- although I get why it's appealing. :)

[pnac]

After re-reading I have to agree with vanya, I'll go with #5 as well.

[44 AMP]

or "God given" rights. The individual right of self defense is one of these, a concept very important to the Founders.

If the 2nd Amendment isn't clear enough for you, concerning these concepts, refer to the 9th and 10th amendments. Just because something is not specifically listed in the Constitution (including the Bill of Rights) does not mean that it does not exist as a right of the people (the individual). The 9th & 10th amendments cover that.

[Tennessee Gentleman]

But I'm sure Tennessee Gentleman will be along at any moment to chime in on this... he's far more knowledgeable than I in this area.

Thanks for the compliment but there are many knowledgable folks on here but this is a subject I like to discuss.

My readings tell me that the Second Amendment was created to preserve the right of the States to arm and train their miltias. The COTUS had given unprecedented power to the Federal Government to control the militia and the anti-federalists wanted the states to maintain their militias as a bulwark against tryanny that might occur by the new federal government through a large standing army which the Founding Fathers feared. However, implicit in the 2A was the God-given right of self-defense against criminals. Therefore IMO Heller correctly ruled that the 2A gave the individual citizen the RKBA unconnected with service in the militia (which is no longer in existence today) for self defense.

Even on these boards you will find people who do not believe in the second amendment as 'a bulwark against tyranny.' Quite a few actually. To many here it is all about CCW and HD.

Actually, I believe the militia that existed in 1789 which the 2A speaks of WAS intended to be a bulwark against the tyranny of a large standing army, however, that miltia is today the National Guard since it soon became clear that the exigencies of war required such a standing professional army. Today, the idea of a 1789 type citizen militia being our main defense against foreign enemies would seem to most to be rather silly.

Where I part company is with those who claim that an armed citizenry, namely just people who own guns with no other organization is today a bulwark against tryanny. In fact IMO I believe that bulwark to be our democratic institutions such as the courts, legislatures and elected officials.

Today with the militia now the National Guard, the real applicability of the 2A to most of us is self-defense against violent criminals of the domestic type.

[HarrySchell]

I have to go with 44 AMP. I think the key thought in the Founder's deliberations was the human right of freedom...or stated another way, the right of self-defense appropriate to the threat to individual freedom, at whatever scale that threat appears. Big threats bring individuals into a militia, but the starting point is the individual. You don't have a militia if you lack individuals. Little threats, a mugger, that is something you should be enabled to deal with AS YOU CHOOSE.

If you want to bunker in your home with bars on the windows and watch the sunset through them, that is up to you. I cannot deride that decision. I dislike it, thinking you should be free to sit on the front porch, whatever. But you have to choose what you want to do, follow that choice to its conclusion.

Armies are nothing but individuals aligned to a single goal. Absent any individual skill to achieve that goal, the army fails. Absent proper leadership, a fish rots from the head down and the goal is lost. Great leaders, incompetent troops, you lose. It's like gravity... you can talk all you want about whatever you think is going to delay the outcome, razzle, dazzle and "empathy", but gravity always wins.

And "well regulated" does not mean "well legislated"...it means, in the language of the day, well trained in the use of weapons at an individual level and in coordination with others to produce an effective militia.

I have always taken "state" to imply a territory, but it makes perfect sense that it may refer to the state of a human being to be free in their pursuit of life, liberty and happiness (although these may elude us in our lives), which is by necessity only assured if one can defend oneself. The rule of law is one defense, but if that rule is bypassed, as by the local mugger, there is but one alternative solution...self-defense.

That may be tossing a fake wallet and running, or shooting somebody. 2A contemplates the universe (maybe) by using the word "arms". Not guns, but "arms". NRA has done a disservice in phrasing some parts of the debate as "gun rights". The question is much bigger, IMO, and "arms" might mean phasers, at some point. The sanctity of the individual is the issue, not the means of defense. Hence, the use of the term "arms".

The essay on why being armed is more civilized than not comes to mind, overlooking its contested origin. (With a nod to Arthur C. Clarke)

The thought is, if I am armed adequately, you have to persuade me in a civilised manner to go along with your plan. This is not jungle law, where main force decides what happens. We have to sit down like adults and work things out. Or somebody gets hurt, and rational, honorable people prefer to work things out. Life is tough enough without looking for a fight. Or so I think.

"Progressives", to the extent they support civilian disarmament, are regressive, as jungle law is what results, either from criminals who fail to disarm or the political class, which gathers all the guns they can.

Who you fear the most determines what you do. Not what you individually want, but what those forces will allow you to do, through their action or inattention. Maybe today you are fine. Tomorrow you are on a train for the camping trip of a lifetime. I don't see anything progressive about a system that produces that kind of outcome, no matter what oratory that is laid on.

I apologize for substituting my understanding for good cites. Heller is a good place to start. I would follow the cites of Heller to get to source documents in the Federalist Papers and other thoughts of Paine, Jefferson, Franklin, Washington, so many others who understood that individual freedom comes from choice.

You decide what you want to do. Some choices are negative, and in taking them you need to accept what happens, just as the benefits of positive choices should accrue to you. This is not Darwin's idea, eat or be eaten, because life is too complex and what you sow, you do reap (gravity, again).

I will qualify this, in that I run a business in CA, we have never cut corners, and it is hard to keep going if you look at the numbers, which I do, as a CPA. But when a product goes out our door, it will do what we say it will or better. For that we have businesses who trust us and return. CA is trying to pay off their employee unions so the taxes are going up, regulations going up, business really not welcome here. Doing it right, if I can claim that we are, does not always lead to a happy outcome.

When you look in the mirror in the morning, though, at least you are not looking at a thief. You choose what you want to do.

Individual freedom, that is.

Cheers,
Harry

[BlueTrain]

Let us not speak of jungle law, unless you live in the jungle. That not withstanding, my opinion of this forum, or rather, the participants on this forum, is always raised mightily after reading threads like this and many others. Of course, that opinion is tempered after reading some of the others.

But returning to the founding fathers, if I may interject some trivia here about guns, I'd like to mention that Jefferson stated that he went armed. How often or where I don't recall. But his arms are on display at Monticello, not at the house but at the visitor's center, behind glass. It has been quite a few years since I saw them but they were (I think there was a pair) of small caliber pocket pistols, flintlock, of course. You usually don't think of Jefferson and guns but it shouldn't be surprising. Lee's revolver is likewise on display at Arlington House. It is a Colt sidehammer .31 caliber, probably. Apparently these people were happy with smaller caliber weapons.

[ronc0011]

I have been reading as much as I can on this topic researching my current project and one of the things I have seen is that several of the states were unwilling to accept the constitution without the Bill of Rights of which the 2nd Amendment was a central componant. Here is an example of what I mean http://www.rightsofthepeoplecalifornia.com/guns/gun_facts/original_intent_2nd_amendment.php

By this I would have to say that the word “State” refers to the individual states and that they saw themselves as ceding their power to this newly formed federal government.

[cbrgator]

Read the Federalist Papers 28, 29, & 46. Primarily 28 if i remember correctly.

[Ian0351]

There is a very good book by W. Cleon Skousen titled The Thousand Year Leap Which provides an in depth and contextual look at our founding fathers and their beliefs, which of course led to the founding of this, the finest and freest (I think that's a word) country in the world. While it discusses much more than the limited scope of issues being discussed in this forum, it provides a very well written and cited discourse on the concept of natural rights and given rights, or God's Law and Man's Law. The OP may find the first 3-4 chapters this book interesting as it also includes references to many of the federalist papers which shaped the COTUS.

[BillCA]

I think one has to remember that "State" can refer to one of "the several states" of the union, a soverign nation-state or it can refer to a state of freedom (which I prefer, but that's neither here nor there). In 1775, each of the States was a soverign land of it's own, with little direct allegiance to the others. Trade disputes and tariffs between the states were not uncommon. So State can refer to any of the above meanings and still be coherent to today's world.

In the era of our nation's founding, the experiences of the founding fathers played heavily in determining the form of the constitution. The enlisted ranks of the British Army included a high percentage of criminals sentenced to serve in the army as enlisted men. Because of this, many British troops, when not on-duty or under the watchful eye of the Sergeant, would drink & carouse hearitly (and often much too heartily). And many officers were fairly petty and punitive in their actions against colonists for minor offenses.

In addition, the King of England (amongst other European rulers) had a long tradition of using the army to put down "rebellions" when people protested about high taxation, corrupt local leaders and poor treatment by the "elite". England was often no different than Europe, where the ruling elite viewed the citizenry with contempt.

Thus, no standing army was envisioned for the U.S. except in wartime. Only that which was needed to guard the borders, secure order in new territories and a Navy that was more Coast Guard than real Navy. In time of invasion, insurrection or major unrest, it was felt that an armed citizenry, trained as a militia, would be the first line defense until any regular troops could arrive.
"A well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them, I deem [one of] the essential principles of our Government, and consequently [one of] those which ought to shape its administration."
Thomas Jefferson: 1st Inaugural, 1801

The Militia Act of 1792 required members to provide their own weapons, bayonets, powder & ball, knapsack and other equipment. By keeping their weapons at home, this allowed them to use firearms as a military arm, a defensive arm and a hunting weapon where practical.
"... whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them..."
Richard H. Lee, Additional Letters from the Federal Farmer 53, 1788

I'll disagree with Tennesse Gentleman that the intention was merely to arm the State Militias. The object was that every man be armed, according to Patrick Henry. And Jefferson's quote above bolsters this idea.

"While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyranny."
Rev. Nicholas Collin, Fayetteville Gazette (N.C.), October 12, 1789

While Congress, the Executive and the Courts form 3 pillars of the foundation, the armed citizenry formed the 4th. With the majority of citizens armed, if any of the 3 pillars of the republic were to ignore the constitution, the people themselves could overwhelm any number of troops sent to contain them.
"The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them"
Tench Coxe, An American Citizen IV, October 21, 1787

Between the founding up through about 1890 (and later in the west) the carrying of firearms for protection was a routine matter and little notice was taken of a man or woman carrying a gun with them. Most were worn openly in holsters, though women frequently had a small pistol in a purse or concealed under a cloak or coat so as to appear more like a lady of breeding.

This means firearms - handguns and long guns - have always been prevalent in American life since the founding. Mostly carried openly and most were never used to kill another person, but to serve as a warning to criminals and as a symbol of a free man.

As Jefferson wrote to his nephew, Peter Carr in 1785, that while the gun gives a moderate exercise to the Body, it gives boldness, enterprise, and independence to the mind... . He could hardly have said these words if he believed in an official militia-control of their arms.

[Tennessee Gentleman]

I'll disagree with Tennesse Gentleman that the intention was merely to arm the State Militias. The object was that every man be armed, according to Patrick Henry. And Jefferson's quote above bolsters this idea.

I do believe that initially Folks like Jefferson believed in the Republican (not GOP) ideal of government which included the obligation of all able bodied men to serve in the defense of the nation. However, Hamilton, Jay and Madison soon saw the impracticability of it;

To oblige the great body of the yeomanry and of the other classes of citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the to the people and a serious public incovenience and loss....But through the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable;

It was clear that the Jeffersonian ideal of a citizen militia (indeed as many other of his ideas) was not practical and over time we have instituted the current system we now have with the burden of our nations defense being borne by a professional military.

Patrick Henry's problem and why he urged Madison to write the 2A was that as stated before the COTUS had given Congress unprecedented power to control the State Militias and folks like Patrick Henry wanted that power shared more with the states. Most historians agree that at least part of the meaning of the Second Amendment was that it specifically guarantees the the right of states to ensure the arming of their militias in the face of fears that the federal government might effectively deny to arms to a state controlled militia. However, those fears never came true. The Second Amendment has been largely irrelevant to the history of the militia since 1792 and remains so today.

I believe there to be a great great difference between a "well-regulated militia" and just an armed populace. A militia was a system to create organized armed forces for the State and the Nation. It was not ever to be simply a group of people with guns. It was to be organized with leaders, compulsory service and a clear unit structure who answered to proper elected authority.

Futhermore I do not believe the 2A was ever written to a used for what is called by some as "The Insurrection Theory" which is anathema to Contitutional Government.

[johnwilliamson062]

I think one has to remember that "State" can refer to one of "the several states" of the union, a soverign nation-state or it can refer to a state of freedom
The framers of the constitution almost certainly meant nation state. The several states of the union were considered to be separate nation states. I think anyone who says the founders intended for anything like the sprawling national government we have now is full of non-sense. They were attempting something more like the EU, probably a little stronger bond(the EU is of course trending towards a more central unified government). Calling the 50 political bodies which make up the "United States" states is just a traditional thing going back to when they were considered to be separate nations. If the founding fathers had intended for our current system government they would have called them territories or provinces, which is what they have become. The 50 states is the only place I know of the word "state" being used in this manner and I think that alone shows they meant them to be separate nations not territories. In a lot of ways moving towards more central government makes sense as very few people see themselves as "Ohioans" or whatever before "Americans" and the gap between different locals is shrinking as travel and communications technology progress. Remember, Washingtons proposed pledge of allegiance was first resisted b/c members of the continental army would not pledge allegiance to a power above their state. In some ways going to one National government might remove a lot of overlap and cut governmental costs to a large degree and at present everything "local" depends enough on federal grants that they have to do what the fed says anyways..

It was clear that the Jeffersonian ideal of a citizen militia (indeed as many other of his ideas) was not practical and over time we have instituted the current system we now have with the burden of our nations defense being borne by a professional military.
I think that really depends what the role of the military is going to be. We had a very small standing Army until WWI, and it wasn't all that big during the interwar period. Purely defensive operations and logistics are very simple and can, even in modern times, be carried out by citizen militias with out all that much training(there are quite a few modern examples, some occurring as we speak). Policing the world takes an entirely different level of training and logistics. Not saying we should or should not, just that there is a huge difference.

Futhermore I do not believe the 2A was ever written to a used for what is called by some as "The Insurrection Theory" which is anathema to Contitutional Government.
As far as the insurrection theory being without a doubt not what the founding fathers meant
Great Britain is and was a constitutional monarchy.
I find it hard to believe they would totally dismiss and remove for future generations an option they had recently exercised.

[DaveTrig]

There's a lot of really good commentary in this thread. I'll throw in my $0.02US on Rule #2:

"A well regulated militia"
In context of the period, this means the citizenry are armed and know how to use those arms

"being necessary to a free State"
The freedom of the people under any government requires that the people retain the power to oppose that government.

"the right of the people to keep and bear arms shall not be infringed."
To insure that the people always retain that power to oppose the government, the government shall in no way keep the citizenry from arming itself.

You are correct, there is nothing specific about self-defense against crime. Your ability to defend yourself against an attacker could be defined as a defense of freedom, but the real intent of the 2nd is to insure that the people always have the power to oppose the government.

[Tennessee Gentleman]

I think that really depends what the role of the military is going to be.

I am not sure the role of the military, that of preserving the peace and if not possible protecting our country by force, has changed that much at all in the broad sense.

We had a very small standing Army until WWI, and it wasn't all that big during the interwar period.

Which (along with a national foreign policy of isolationism) left us woefully unprepared for the threat we faced in WWII. Fortunately we were able to recover and win the victory. President Eisenhower talked about the need for a large standing military in his farewell address. We have never gone back to that Pre-WWII model for those reasons.

Purely defensive operations and logistics are very simple and can, even in modern times, be carried out by citizen militias

I disagree and so did many of our Founding Fathers long ago. Anyway, today that need is superfluous since we possess nuclear weapons no nation would dare attempt an invasion.

(there are quite a few modern examples, some occurring as we speak).

Not any of them are superpowers as we are.

Policing the world takes an entirely different level of training and logistics.

That train left the station in 1945. We are the leading nation of the free world. Fighting enemies in other countries is not policing the world but rather defending forward which I prefer over fighting in Tennessee. This I assert is no longer a choice but a necessity and no "citizen militia" could ever meet such a requirement.

but the real intent of the 2nd is to insure that the people always have the power to oppose the government.

How then would you reconcile that view with Article One Section Eight of the COTUS? To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections...

and Article III section II Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

I find it hard to believe they would totally dismiss and remove for future generations an option they had recently exercised.

They rebelled because they had no democratic institutions or representation to protect their interests and rights and therefore had no other choice. We do, thanks to the government they gave us. The 2A is not a suicide clause for the Nation and the Founding Fathers never intended it to be. The checks and balances of our "wonderful experiment" of republican democracy has done that for the last 230 years. Not armed citizens.

[johnwilliamson062]

They rebelled because they had no democratic institutions or representation to protect their interests and rights and therefore had no other choice.
And they wanted to make sure that if the citizens were put in that position again they would have the arms to deal with it. Many of those colonists were born in Britain and started life with representation. They were represented in the colonial parliaments, which for a long period of time ruled the colonies with less interference than we now suffer from the UN, NATO, NAFTA and other international organizations. They realized that the face of government could change in a relatively quick period of time.

That train left the station in 1945. We are the leading nation of the free world. Fighting enemies in other countries is not policing the world but rather defending forward which I prefer over fighting in Tennessee. This I assert is no longer a choice but a necessity and no "citizen militia" could ever meet such a requirement.
I highly recommend you spend some time studying the foreign policy of China, the dominant power in the world from before Europeans could write until the Brits introduced opium into their economy. Most of the terrorists we face come from Saudi Arabia, an ally of ours. Why is that? The Saudi Royal family is one of the most oppressive and hypocritical regimes on the planet. The Saudi people hate them and realize that without the support of our extensive military units stationed there, the royal family would not be able to stay in power. Of course, our units keep the region relatively stable and the oil flowing.

Nuclear weapons is exactly why we need a standing army for defense less now than ever before in history.

[vranasaurus]

The founders went the revolution route only after they had exhausted all other means available to acheive their goals.

They had no representation and the king refused to make any effort to redress their greivances.

The only point at which an insurection theory would be applicable is if all of our democratic institutions broke down and we no longer have a vote.

As long as we can vote and change our leaders it is far easier to convince the number required to acheive your goals at the ballot box than at the point of a gun.

If you can't convince enough people to vote for your ideas how can you convince enough people to pick up arms and follow you to revolution?

[Tennessee Gentleman]

If you can't convince enough people to vote for your ideas how can you convince enough people to pick up arms and follow you to revolution?

Wisdom indeed. I suspect that many who advocate "insurrection" do not even vote.

And they wanted to make sure that if the citizens were put in that position again they would have the arms to deal with it.

Actually, what they did was put in place a marvelous system of government that was answerable to the people it governed by election and whose powers were divided and checked by the other branches. The arms against tryanny were meant for the State militias and since that threat never emerged the States did away with the miltias and replaced them with the National Guard.

Many of those colonists were born in Britain and started life with representation. They were represented in the colonial parliaments, which for a long period of time ruled the colonies with less interference than we now suffer from the UN,

I take a little issue with your historical view. The colonial parliaments had no voice where it counted and that was THE Parliament in England. They could tax us as they willed (which had a greater impact on life than today) and we had no say so in it. As to the UN, I am not sure what you are talking about as we haven't paid our full share of dues to them in many years and we routinely act in our national interest against their wishes.

Nuclear weapons is exactly why we need a standing army for defense less now than ever before in history.

I recommend you study why we dropped the Eisenhower policy of Massive Retaliation in favor of the Flexible Response Policy starting with the Kennedy Admnistration which carries on in large part today. When all you have to defend your interests is nuclear weapons then your options to agression are quite limited. Nukes however, do pretty much guarantee that you won't be invaded and that is why France left NATO and built nukes. That is also why we no longer need a "citizen militia" to defend the homeland.

John, I sense you might be an isolationist and I would recommend more study of history that could show you why that strategy won't cut it for a world power and a global economy.

[Al Norris]

vranasaurus, is completely correct. So much so, that a sitting Federal Circuit Court judge said the same thing a few years ago:
The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed; where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Credit given for the first person to name the individual, quoted above. :)

Extra credit for the complete citiation. :D

[vranasaurus]

Judge Alex Kozinski

[vranasaurus]

Silveira v. Lockyer:

All too many of the other great tragedies of history – Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few – were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

[Tennessee Gentleman]

Silveira v. Lockyer, 328 F.3d 567 (2003)

Judge Alex Kozinski dissenting

:p

[Uncle Billy]

It seems simple to me: The modern definition of "well-regulated militia" notwithstanding, the word "people" in the 2nd Amendment means the same thing as it does in the 1st, 4th, 5th and 10th- individual citizens. None of those make any sense unless the word "people" means each individual person- the intent was to protect the rights of each citizen individually, not as a member of a larger group. If the writers had meant the 2nd amendment to enable the states to maintain armed forces (arguably the evolved definition of "militia"), they'd have said "the right of the individual states to maintain armed forces" shall not be infringed. They well knew the specific definition of the words they used and they didn't misspeak.

[Tennessee Gentleman]

If the writers had meant the 2nd amendment to enable the states to maintain armed forces (arguably the evolved definition of "militia"),

No evolution at all. That is exactly what the militia was and part of the reason that the 2A was written. That was, to insure that the States could continue to have a bit of control and authority over the militia rather than cede it all to the Fed. However, that issue is irrelavent today.

If the writers had meant the 2nd amendment to enable the states to maintain armed forces (arguably the evolved definition of "militia"), they'd have said "the right of the individual states to maintain armed forces" shall not be infringed.

They had already taken care of that in the Article I, Section 8, clauses 15 and 16. The problem was the states feared the control the Fed had over the state militia (there was never a federal militia). That is why the reference is made to the militia.

If the writers had meant the 2A to only apply to individual firearm ownership by citizens they would have said simply "The right of the individual citizen to keep and bear arms shall not be infringed" However as you say;
They well knew the specific definition of the words they used and they didn't misspeak. :)

[Al Norris]

Good Show, for those that answered quickly!

However....
The arms against tyranny were meant for the State militias and since that threat never emerged the States did away with the miltias and replaced them with the National Guard.
Sadly, you are mistaken, as the actual history of the National Guard would prove.

While the National Guard is controlled by the State, it is wholly a Federal entity. Such State control is by statute (Title 32 U.S.C), but is fully under Federal control (Title 10, U.S.C.). Once immediate authority is invoked under Title 10, executive control is then invoked in Title 5, U.S.C (the Uniform Code of Military Justice). Last codified by the Militia Act of 1956.

The definition of the "National Guard" as the active militia, was codified during the Spanish American War, when the States refused to allow the federalization of their organized militias. The reasoning was that in order to call "forth the militia," for execution of "the Laws of the Union, suppress Insurrections and repel Invasions," the direct implication was that the militia would never leave the soil of the U.S. This was upheld by the Supreme Court, whereupon the Congress passed the Militia Act of 1898, which amended the original Militia Act of 1792). This stripped the States of control of their militias, during any crisis that the Congress authorizes the President to call up the militia. In 1903 (the Dick Act), further legislation completely federalized the "National Guard" as a reserve component of the U.S. Army.

The New York State Militia voted in 1824 to rename itself as, "Battalion of National Guards," in honor of General Marquis de Lafayette, who was instrumental in the success of the Colonies rebellion against the English, and the French Revolution of the 1890's. New York, by Statute, renamed its Militia as the "National Guard" during the Civil War and afterwords, several of the States followed suit. The name was formally adopted by Congress with the passage of the National Defense Act of 1916.

That is the true beginning of the National Guard, as we know it today. That is also the end of the State Militias as they were then known.


Off to work....

Sources:
http://www.globalsecurity.org/military/agency/army/arng-history.htm
http://www.ngb.army.mil/about/default.aspx

[vranasaurus]

If the writers had meant the 2A to only apply to individual firearm ownership by citizens they would have said simply "The right of the individual citizen to keep and bear arms shall not be infringed" However as you say;

Then why didn't they use the phrase "Individual citizen" in the 1st, 4th, 9th, or 10th amendments? The 1st, 2nd, 4th, 9th, and 10th amendments all use "the people". While the 5th and 6th amendments references persons and the accused.

US V. Verdugo-Urquidez

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words (p.266)"person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

[LaBulldog]

One of the documents that may have influenced the Bill of Rights is the Constitution of Virginia, 1776. Look at SEC. 13.

Constitusion of Virginia, 1776 (http://www.nhinet.org/ccs/docs/va-1776.htm)

The Constitution of Virginia
June 29, 1776 1(1)

Bill of Rights; June 12, 1776

A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.

SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

SEC. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

SEC. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

SEC. 4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary

SEC. 3. That the legislative and executive powers of the State should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.

SEC. 6. That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representives so elected, nor bound by any law to which they have not, in like manner, assembled, for the public good.

SEC. 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

SEC. 8. That in all capital or criminal prosecutions a man bath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.

SEC. 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

SEC. 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

SEC. 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

SEC. 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

SEC. 14. That the people have a right to uniform government; and, therefore, that no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.

SEC. 15. That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

SEC. 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.


(1) Verified from "Ordinances passed at a General Convention of Delegates and Representatives from the Several Counties and Corporations of Virginia, Held at the Capitol in the City of Williamsburg, on Monday, the 6th of May, A. D. 1776. Reprinted by a Resolution of the House of Delegates of the 24th February, 1816. Richmond: Ritchie, Trueheart & Duval, Printers. 1816." pp. 3-6.

"The Proceedings of the Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond Town, in the County of Henrico, on the 20th of March, 1775. . Re-printed by a Resolution of the House of Delegates, of the 24th February, 1810. Richmond: Ritchie, Trueheart & Duval, Printers. 1816." 8 pp.

"The Proceedings of the Convention of Delegates for the Counties and Corporations in the Colony of Virginia held at Richmond Town, in the County of Henrico, on Monday the 17th of July 1775. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Richmond: Ritchie, Trueheart & Du-Val, Printers. 1816." 116 pp.

"The Proceedings of the Convention of Delegates held at the Capitol, in the city of Williamsburg, in the Colony of Virginia, On Monday, the 6th of May, 1776. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Richmond: Ritchie, Trueheart & Duval, Printers. 1816." 86 pp.

"Ordinances passed at a General Convention of Delegates and Representatives, from the several Counties and Corporations of Virginia, held at the Capitol in the City of Williamsburg, On Monday, the 6th of May, Anno-Dom. 1776. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Richmond: Ritchie, Trueheart & Du-Val, Printers. 1816." 19 pp.

This Declaration of Rights was framed by a Convention, composed of forty-five members of the colonial house of burgesses, which met at Williamsburgh May 6, 1776, and adopted this Declaration June 12, 1776.

This constitution was framed by the convention which issued the preceding Declaration of Rights, and was adopted June 29, 1776. It was not submitted to the people for ratification. [Back]

Source: The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America
Compiled and Edited Under the Act of Congress of June 30, 1906 by Francis Newton Thorpe
Washington, DC : Government Printing Office, 1909.

[Tennessee Gentleman]

Good Show, for those that answered quickly!

Hey I want extra credit. Not really fair though as you have used that quotation before and I knew it. vranasaurus was quicker on the draw and so I think you should give the extra credit to vranasaurus:mad:

Sadly, you are mistaken, as the actual history of the National Guard would prove.

Au contraire, the National Guard is the lineal descendent of the "well regulated" State militias referenced in the 2A. While the NG may be federalized (as could the state militias if Congress called them) it is a part of the Total Force of our military that, while a change, is not in great part different than the power the Fed assumed over the state militias in 1789. Until they are federalized however, they belong to the state and are under the command of the Governor. The "unorganized militia" (a term that did not come about until much much later in our history) that some call the "militia" of today is nothing more than a statutory construct that has no rights, duties, or reponsibilities. The National Guard came into being due to the obvious deficiencies of the miltia system and I agree that officially with the Dick Act;

That is the true beginning of the National Guard, as we know it today. That is also the end of the State Militias as they were then known.

Then why didn't they use the phrase "Individual citizen" in the 1st, 4th, 9th, or 10th amendments?

Same same to me. The people or individuals is the same just different language. The point is the 2A was not just written to guarantee the people's (or individual citizen's) RKBA. The arming of State Militias was a part equally important as well.

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Indeed, many credit the BOR as coming from the mind of George Mason who is given credit by some for being the "Father of the BOR" as much as Madison. However, the problem with that form of right is that the militia it speaks of no longer exists. That is why the anti-gunners tried to tie the right to service in the militia. Heller correctly disengaged the two.

[Micahweeks]

Well, here is one way of looking at it:

The Constitution has a purpose. What is that purpose? Well, it is defined for us in the preamble.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Now, that states that the purpose of the constitution and its amendments are to do these things...

Insure domestic tranquility: doesn't really apply here as it refers to the government being powerful enough to stop armed conflicts that would threaten its sovereignty.

Promote the general Welfare: the term "Welfare" had a different usage then. It referred to a person's health or well-being. Now, if the purpose of the Constitution and its amendments is to preserve our well-being, then it stands to reason that a purpose of the 2nd Amendment is to preserve our lives.

Secure the Blessings of Liberty to ourselves and our posterity: Your posterity is your children and their children and so on and so forth. The Blessings of Liberty are defined as the rights and freedoms defined by the Bill of Rights and the Constitution. So, it means that the rights originally bestowed by the document are meant for you and all of your descendants from now until the end of time. That means that the right to bear arms not only can't be infringed, it can never be removed. If your grandfather had that right, then so do you.

So, from this we can derive that the 2nd Amendment's purpose is to provide for our well-being and health thereby implying the right to defend ourselves, and we can also infer that the right to do so can never be taken away since it is guaranteed for us and our descendants.

[RDak]

Ron: Have you read Heller real closely? I think your question is discussed and maybe a footnote(s) provides somewhat an answer but I'm not sure on that one.

Nordyke (CA-9) came to the same conclusion in the concurring opinion. Maybe read that decision real closely to see if there was a footnote(s) referred to.

The militia part of the 2nd Amendment has, IMHO, always been understood to guard against foreign and domestic enemies from all I've read. By that I mean, it has basically been accepted and not argued much, if at all.

You get what I mean, (i.e., it's just something that has been generally accepted IIRC). That's why you are having such a hard time finding something concisely addressing your question IMHO.

ETA: You might read these Federalist Papers. No. 29 is about Militias.

http://en.wikibooks.org/wiki/Wikijunior:United_States_Charters_of_Freedom/Federalist_Papers/Federalist_No._21-30

[Tennessee Gentleman]

Ron,

Here is a good quote from Federalist #29;

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia

[Al Norris]

Au contraire, the National Guard is the lineal descendent of the "well regulated" State militias referenced in the 2A. While the NG may be federalized (as could the state militias if Congress called them) it is a part of the Total Force of our military that, while a change, is not in great part different than the power the Fed assumed over the state militias in 1789.
I'll give you a partial slide about the Guard being the lineal descendent. But the rest? Nope.

The Constitution allows for three reasons for the Congress to call up the militia. 1)To execute the laws of the Union; 2)To suppress insurrections; and 3) To repel invasions. (Art. I, section 8, clause 15)

All 3 reasons occur on U.S. soil. The constitution did not give the Congress authority to send the militia overseas. That was the legal objection by several States in the Spanish-American war.

Of all the State volunteer militia units (146 units), only 34 of the militias served abroad.

The reason? The constitution did not allow the Federal Government to assign militias to duty outside of the national boundaries. Several of the State Governors were all for defense in case of invasion, but refused to allow embarkation abroad of their militias. Of those that did serve abroad, some did so under the objections of some of their Governors, while others did so with the explicit consent of their Governors.

All this changed with Militia Act of 1903, which established the State Militias as the primary organized reserve force of the U.S. Army.

The National Defense Act of 1916, the State Militias became fully federalized as the National Guard. This Act also defined the two classes of militia that we have today: The organized militia (National Guard) and the unorganized militia. It was at this time, that several of the States organized their State Defense Forces as separate entities. These are recognized by federal law as being part of the unorganized militia. The Act of 1916 also gave the President authority, as CIC, of the Guard in times of war or national emergency.

The National Defense Act Amendments of 1920, besides establishing the Militia Bureau (Later, the National Guard Bureau), also stripped the States of their power to appoint its own officers.

The National Guard Mobilization Act of 1933, made the National Guard a component of the Army. All persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army.

The Armed Forces Reserve Act of 1952, included language (at the insistence of Pres. Eisenhower) that gave State Governors the power to deny federalization of their State National Guard for military duty outside of U.S. Territorial Jurisdiction.

Next was the Montgomery Amendment to the National Defense Authorization Act of 1987. This provided that a Governor cannot withhold consent with regard to active duty, for purposes of training, outside the U.S. Every governor protested this law. It was however, upheld by the Supreme Court. See Perpich v. Department of Defense, 496 U.S. 334 (1990). It should be noted here, that it doesn't matter what the actual activity is, as long as it is called "training."

The Defense Authorization Act of 2007, stripped the Governors of their role of sole commander of their States National Guard, during emergencies within the State. Again, all 50 Governors protested this action by the Congress, to no avail. The President can take total control of a States Guard without any consent of the Governor.

I relate all of this, to show that the militia didn't just disappear. It didn't fall into disuse or neglect. The States lost their militias to the ever expanding power of the feds. Any control that the States may have today over their own militia, is at the whim of the federal government.

So yes, it is a great deal different than what the feds could do, back in 1798. Or even the next 118 years after that.

[RDak]

TG: No. 29 is partially quoted here. I think it points out that there was a desire to keep people confident that their militias would serve as a bulwark against Federal tyranny by having the States appoint and control the officers of their militias. So, I'm not sure why you bolded the part you highlighted in your post?

Were you just trying to point out that there might have been a desire to administer the militias at a central, Federal level but have them comprised of State apponted officers?

As Al pointed out, the National Guard wasn't really formed until the early 1900's, (i.e., after the Spanish American War).

Until then, the militias were viewed as State run entities IIRC. Now, with the National Guard created fairly recently, that seemed to negate the need of a State militia(s)?

ETA: And I've read editorials in newspapers of that time where some people were not happy with the militias becoming more "federalized". So, it would seem, that back then, militias were considered State operated IMHO.

By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

............There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

So, you can see that Hamilton was calming people's concerns right from the beginning of the USA, (i.e., relative to undue Federal control over the militias), by allowing the States to appoint all of their militia officers.

As Al pointed out in his most recent post, the National Guard statutes dramatically changed the scheme of things. Why would there have been a need to enact these statutes if, as you say, the militias were always Federally controlled?

[YodaMage]

Secure the Blessings of Liberty to ourselves and our posterity: Your posterity is your children and their children and so on and so forth. The Blessings of Liberty are defined as the rights and freedoms defined by the Bill of Rights and the Constitution. So, it means that the rights originally bestowed by the document are meant for you and all of your descendants from now until the end of time. That means that the right to bear arms not only can't be infringed, it can never be removed. If your grandfather had that right, then so do you.

So, from this we can derive that the 2nd Amendment's purpose is to provide for our well-being and health thereby implying the right to defend ourselves, and we can also infer that the right to do so can never be taken away since it is guaranteed for us and our descendants.


My great grandfather had a right to own some slaves too.... but well thought out point....

[Tennessee Gentleman]

I'll give you a partial slide about the Guard being the lineal descendent.

Ok, we have some common ground then.

Now as to the use of the militia. Actually, there were several points of contention between the states and the Fed about the use ofthe Militia and those contentions carried on into the 1990s with Perpich vs. DoD 110 S.Ct. 2418 1990. Some southern states withheld large portions of their militias during the Revolutionary War to protect against feared slave uprisings. During the Constitutional Convention there was concern that the unprecedented power given Congress to organize, train, discipline, arm and call forth the militia worried many anti-federalists. The provision to allow the states to appoint their officers was a compromise as was the 2A which ensured the states could arm the militias if the Fed would not. However, the Federalist won the day on Federal control. Nowhere in the COUTUS does it say the militia may not be used overseas. States may have opposed such but I think there was no support in the courts for such opposition. You may know better on that one.

As of the late 1870's all men in the United States between the ages of 18 and 45 were obliged to serve in the militia and to arm and equip themselves for that purpose...Only a few took that seriously...Within a dozen years after the Civil War, however, increasing numbers of men began to take an interest in the militia. They formed units, drilled, and bought uniforms and arms. They were the nucleus of the National Guard. Very early they turned to political activity.

The National Guard Association was formed to seek a new militia law from Congress...The object was to have the Guard recognized in federal law as the "organized militia." This would distinguish Guard members from the vast majority of men between 18 and 45 years who were legally classified as militia but who did not actually serve.

The Guard, which was the militia in fact, would be acknowledged as such in law. Not until 1903 was the Guard able to achieve this its major political goal. ln the meantime, it thrived with the help from the states.

Observers in the 1880's and subsequent students have identified the labor riots of 1877 as the cause of the Guard's sudden growth. Unquestionably, industrial violence provided much of the impetus. Fear of violence by "anarchists, internationalist, and nihilists" led state and local governments to strengthen the militia forces. Development of the Guard began and proceeded fastest in the populous, industrial states of the North- Massachusetts, Connecticut, New York, Pennsylvania, Ohio and Illinois. In addition to the appropriations from state and local governments, the Guard received substantial private funds from wealthy businessmen- Martha Derthick, The National Guard in Politics, pp. 15-17.

The States lost their militias to the ever expanding power of the feds. Any control that the States may have today over their own militia, is at the whim of the federal government.

Where we differ is I say that control was lost when the COTUS was ratified and not in 1903. It was always the intent of the Federalists (who were the majority) that the militia ultimately fall under the control of the Fed. The problem with the Spanish American War (as had been a problem before) was that the militias were untrained and unprepared for combat. Teddy Roosevelt who particpated in that war saw the problems with the system and replaced the archaic militia with the modern national guard and the states went along with it willingly for the most part.

So I think the militia died out in part because;
a. The American people don't like compulsory military training and would rather pay others to do it b. Modern Warfare does not lend itself to a militia system for a world power c. Separate state militias would be nigh impossible to effectively train and equip without strong Federal contol d. Nuclear weapons make it foreign invasion (from non-space aliens) impossible.

[Al Norris]

Before anyone gets the wrong idea, about my posts on the history of the militia, the fault for all of these changes rests squarely upon the shoulders of both the Federal Legislature and the State Legislatures.

In the Beginning (always wanted to use this phrase ), the greatest fear of the anti-federalists was that the militia clauses of the new Constitution gave so much power to the new federal government, that they could see the stagnation and abolition of the militias, by the direct failure of the Congress to not arm, supply, or train the militias. At the same time, increasing the size of the Army, would negate the States the power to fight federal tyranny.

Passage of the 2A was meant to allay those fears. Because if the common man retained the right to keep and bear arms, then the militia could never be disarmed, by neglect at the federal level.

What we had was a situation that all men were to be armed (Militia Act of 1798), but unless called into federal service, the feds did not need to supply a thing. The reverse was also true. Unless called into State service, the State did not need to fund the militia, either.

Anyone, besides myself, see the dual problem with this?

The War of 1812. The States were required to muster their militias. This meant that the States had to fund and supply their troops until those troops were integrated into federal service, at which point the feds had to fund and supply the troops. Same thing with the Civil War and the Mexican-American War.

Then the Spanish-American War came about. The States were required, by the Federal Government to keep supplies coming to their militias, until they were trained and ready to muster into federal service.

Both the States and the Central Government were at loggerheads as to when the troops were actually federalized, and who should actually supply the Troops. Reading the annuals of that war, the campaign with Cuba and then the Philippines, one reads how the militias were more than ready to do their patriotic duty, but were hampered with inadequate supplies from both governments.

The solution, at least from the Federal standpoint, was to federalize the militias from the get-go. The States, being relieved of the monetary considerations, went along with this.

Over time, the Federal Government took more and more control. The States simply acquiesced. After all, the Governors could still override the use of their militias, they were still the CIC of their militias, they just didn't have to pay a dime. It wasn't until the Act of 1933, that the National Guard Bureau began to refuse the appointment of officers by the States (on the grounds that they were inadequately trained), that the States began to realize what was happening.

Yet they (the Governors) still did nothing.

We have now arrived at a time when the States Militias are literally a thing of the past. All due to actions of the Federal Government and lack of actions on the part of the States themselves.

I would posit, that even at this late date, the proposition that "A well regulated militia, being necessary to the security of a free State," still carries meaning. Not even the Supreme Court has the authority or power to negate the words of the Constitution.

With Heller, the States can take action and take back control of their militias. That would mean that the States would have to fully fund the Guard, unless or until they are called into federal service. I just don't see that happening. Given past performance and especially under the current economic climate, I honestly don't see anything changing.

Still, and all, anyone who claims that the State Militias and the National Guard are one and the same, has not really studied the issue, as it pertains to the prefatory clause of the second amendment.

[vranasaurus]

The State governors should have no right to object to the federalization of the national guard because the national guard is paid for by the federal government(probaly more than 90%).


I would say that state defense forces are the entity most closely descended from the orignal militia.

[Tennessee Gentleman]

I think it points out that there was a desire to keep people confident that their militias would serve as a bulwark against Federal tyranny by having the States appoint and control the officers of their militias. So, I'm not sure why you bolded the part you highlighted in your post?

Hamilton favored the select militia and thought the republican ideal of a citizen miltia to be folly. He is trying to calm the fears of those anti-federalist sympathizers that such a select militia would be no threat to their liberty. Hamilton urged Adams during the French Quasi-War of 1798-1800 to put a standing Army in place but Adams refused. Ironically Jefferson changed his mind and agreed to such when he was President.

[Tennessee Gentleman]

anyone who claims that the State Militias and the National Guard are one and the same, has not really studied the issue, as it pertains to the prefatory clause of the second amendment.

Not one and the same, the National Guard is far superior to any previous State Miltia, but certainly lineal descendants. Therefore, the militia spoken of in the 2A became the National Guard of today. There is no "other" militia in existence and certainly none that gives any rights to we civilians qua the militia.

Good post otherwise. Bottomline, the militia went the way of the horse buggy. It just don't work anymore and is defunct in modern times as are Letters of Marque and such.

[maestro pistolero]

In the absence of any Iranian 2A rights, does anyone care to predict he success of the protesters in Iran to overthrow the results of the Sham elections? (40 million votes 'counted' overnight, and victory delared, while Norm Coleman and Stewart Smalley still have no result over a year later).

Only pointing out that, however unlikely the possibility of outright totalitarianism may seem in the US, it is only gun rights that provides any final deterrent, should incrementalism land us there eventually.

The anti-tyranny purpose of the Second is at once it's most unlikely and most important function.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be aseffective as militias in the 18th century, would requiresophisticated arms that are highly unusual in society atlarge. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and theprotected right cannot change our interpretation of theright.
Although others view this differently, (TG, et al) I view this as a statement that 2A protection of common small arms used by our military remains an open question. That there appears no willingness or intent to completely detach the two clauses lends support to this idea.

[Tennessee Gentleman]

In the absence of any Iranian 2A rights, does anyone care to predict he success of the protesters in Iran to overthrow the results of the Sham elections?

I am not at all sure if the Iranians had a 2A they would fare any better. The lack of basic democratic institutions that the majority seem willing to live with is the problem. Even if there was voter fraud I am not sure that the Hardliners would not have won anyway. One reporter has pointed out that most of the unrest is coming from the wealthier parts of Iranian society and the majority of the country does not support Mousavi. Arming the students and middle class might get more people killed but am not sure that in itself would overthrow the mullahs.

[maestro pistolero]

The lack of basic democratic institutions that the majority seem willing to live with is the problem.

Very true. But if the majority wanted to install real democracy, how could they?

[legaleagle_45]

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

Consider the language "shall not be infringed". The wording suggests a preexisting right which is being protected, rather than a creation or grant of a new right. With that said, one must look at the nature of the right to arms which was protected from infringement.

Perhaps the most influential legal treatise of the late colonial era was Blackstone, Commentaries on the Laws of England. Blackstone described the right to arms as protecting and enhancing two distinct natural rights, the natural right of resistance and the natural right of self preservation. The first is, for lack of better terminology, the militia right, while the self preservation aspect refers to self defense... a single right with a dual purpose. You can read the relevant portion of Blackstone here:

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

How did this dual right arise? Perhaps the best treatment of this subject is by Joyce Lee Malcolm in her book To Keep and Bear Arms: The Origins of an Anglo-American Right . To abbreviate the book down to a few sentences, the right evolved out of a duty to keep arms for puposes of national defense. England began the militia sytem in the 800's under Alfred the Great. Various laws called the "Assieze of Arms" delineated what arms individual MUST own to fulfill this duty. Naturally enough, the weapons that they were required to keep for militia purposes, were also employed for personal purposes, such as self defense, hunting and the like. The use of the weapons for said personal purposes off set the financial burden of the legal obligation, making it more acceptable to the people at large, giving rise to an expectation that they could use these weapons for personal purposes. When this expectation was violated during the reign of Charles II and James II, the result was a Glorious Revolution and the affirmation of this expectation as a right delineated in the English Bill of Rights, circa 1689.

Ok, now to get to the founders... the issue arose due to the expansive authority given to the federal government over the militia in the proposed, but not yet ratified constitution. Debates in the various state ratifying conventions raised some concerns which gave rise to a demand for a Bill of Rights. The inclusion of the 2nd and its wording is based upon these debates. The state of Virginia was perhaps the most influential and it is certainly the most detailed transcript of the proceedings. These debates can be read here:

http://www.constitution.org/rc/rat_va.htm

The dates where the militia was debated by such luminaries as Patrick Henry, James Mason and James Madison begins on June 14, 1788 about half way down here:

http://www.constitution.org/rc/rat_va_12.htm

and continues over 2 more days.

Hope that helps...

[jersey_emt]

Here's my quick and simple interpretation of the Second Amendment:

"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 armed militia is necessary to ensure the security of the free USA. Hence, the right of the people to keep and bear Arms shall not be infringed. Denying the right of the people to bear arms does away with the militia, hence, doing so can compromise the security of the free USA.

[ImprobableJoe]

I am currently gathering material for a project and have run into a question that I’m having difficulty finding an answer to. I know the caliber of members on this board and figure this is the best place to find genuinely substantive answers. The question is this; I have always had just a passing familiarity with the 2nd Amendment and had always associated the 2nd Amendment with the right to self protection and the right to preserve home and country against enemies both foreign and domestic. Well now that I am actually trying to write something on this I went and looked up the 2nd Amendment which reads;

“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.”

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

I have read a number of editorials, opinions and other treatments on the 2nd Amendment and this association with the idea that one of its purposes is to defend against enemies foreign and domestic is pretty common. The problem is that I don’t see where this comes from or where this is established.


Can someone pleas enlighten me as to where this connection is made in our founding documents.

Maybe it isn't. The 2nd Amendment is probably the dumbest thing the authors of the Constitution ever came up with. It doesn't even work as basic grammar, let alone sound legal reasoning.

So, look to the case law. Gun ownership rights are founded in case law, not the Bill of Rights.

[Hugh Damright]

Regarding the term "free State", here are some selected definitions from Webster's 1828 & 1913 dictionaries:

FREE - In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.

STATE - A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government ...

More usually the word signifies a political body governed by representatives; a commonwealth; as the States of Greece; the States of America. In this sense, state has sometimes more immediate reference to the government, sometimes to the people or community. Thus when we say, the state has made provision for the paupers, the word has reference to the government or legislature; but when we say, the state is taxed to support paupers, the word refers to the whole people or community.
...
In the United States, one of the commonwealth, or bodies politic, the people of which make up the body of the nation, and which, under the national constitution, stands in certain specified relations with the national government, and are invested, as commonwealth, with full power in their several spheres over all matters not expressly inhibited. &hand; The term State, in its technical sense, is used in distinction from the federal system, i. e., the government of the United States.

COMMONWEALTH - An established form of government, or civil polity; or more generally, a state; a body politic, consisting of a certain portion of men united by compact or tacit agreement, under one form of government and system of laws. This term is applied to the government of Great Britain, which is of a mixed character, and to other governments which are considered as free or popular, but rarely or improperly, to an absolute government. A commonwealth is properly a free state; a popular or representative government; a republic; as the commonwealth of Massachusetts. The word signifies strictly, the common good or happiness; and hence, the form of government supposed best to secure the public good.