How to explain the second amendment

[publius42]

members of TFL are all ONE militia

We don't have to wear funny hats or go to meetings or anything, do we?

[BlueTrain]

I don't see anything wrong with funny hats. Some of them are kind of neat, although I don't know of any that might be identified with the militia, other than three-corner hats or coonskin caps.

Do the officers have to come from the local gentry (if any), like they used to do? Can I bring my small sword and spontoon?

[zukiphile]

Originally Posted by CapeCodShooter

But the devil is on the details. If semiautomatics are okay for private ownership, why not full automatics? Hand grenades? Nuclear tipped missiles? That's why we have courts, to decide the "finer" points of what the founders laid down over 200 years ago. And it ain't always easy.

Indeed, some of the devils are in the details, but one of the devils we routinely encounter is an effort to put the details before the principle expressed in an effort to obscure the principle. If the conversation into which you are drawn revolves around nuclear missiles, it is generally for the purpose of demonstrating the lack of validity of the 2d amendment itself.

Originally Posted by CapeCodShooter

I practiced law for thirty years (not auto accidents, but really obtuse stuff) and never had an "easy" case, meaning a case where the law and the facts were clear.

I agree. The easy cases are quickly resolved because there is so little to contest, and there are certainly gun related issues with plenty of grey to them. Whether a portion of the COTUS is a valid limit on government shouldn't be one of those.

Originally Posted by Al Norris

The other amendments are just that, other amendments.

I would not concur in treating the 2d Am as a stand alone right. It certainly isn't the only portion of the COTUS the treatment of which has been a problem. However, I would employ the metaphor of a brick wall. Protections against establishment, takings, unreasonable search and seizure, abridgment of RTKB or speech are each specifically set forth, each their brick in the wall. Knocking out a brick here and there makes the remaining ones less effective.

For instance, undue limits on your right to speak freely or contribute to political causes that can speak for you can serve to endanger 2d Am rights.

I find that explaining the 2d Am as a civil liberties issue allows people who might otherwise be hostile to the idea to consider how comfortable they might be with draconian limits on the rights they value more. It doesn't necessarily win the argument or make a convert, but it does convey the fragile quality of constitutional protections.

[BlueTrain]

You have hit upon a rarely mentioned quality of the law and the constitution and that is the essential fragility of them. A revolution can easily wipe out most of them, though even that won't surpress all of them, not even an invasion, judging from the way things have worked in the past. In the case of a revolution, it doesn't matter that much which side wins. In either case the government will invariably be stronger or more powerful than before. Likewise, most real revolutions and sometimes colonial wars are carried forward by preexisting military units, often as not the militia.

Be that as it may be, it speaks well for our own constitution that it has survived so long in such good shape and how it remains the base of much (though hardly all) of the law in this country. Perhaps the genius of the things is not what is there but in what was left out.

[carguychris]

. What if by militia, the writers of the 2nd Amendment meant it as the "revolters" of a tyrannical government? Instead of an actual state organized militia, but rather just a group of civilians who are fighting the government due to oppression?

I've heard this argument before and I just don't think it's realistic. I don't buy the idea that the 2A was primarily meant as a "self destruct mechanism" by which the citizens or the states could overthrow a tyrannical federal government; if it was, it was only as a last resort.

If the founders were so concerned that a new federal government might be necessary right away, a more effective and civilized means of accomplishing this would be a provision allowing the state legislatures to dissolve Congress and/or recall the President and force new elections. If Congress and/or the President ignored the order, THEN the state militias could be called out. However, such a provision is noticeably absent from the Constitution, which leads me to conclude that the founders believed that two elected houses of Congress would be sufficient restraint on the power of the federal government.

Also, prior to the drafting of the Constitution, IIRC all of the states had a militia system that operated under state control. The organizational structure of the militias varied, and some states- albeit not all of them- allowed private volunteer militia companies to be sanctioned by the state, but the important thing to remember is that the states officially controlled the militia.

I believe that in using the words "...the security of a free State..." in the 2A, the founders meant that the states would be secure from external forces, NOT from the federal government. In the 18th century, significant foreign powers- namely large organized Native American tribes, Britain, France, and Spain- still controlled huge swaths of North America near the settled areas of the USA. At the time, the states still viewed their militias as the primary bulwark against invasion by these groups. However, as the 19th century proceeded, all of these groups were either placated or expelled from America's sphere of influence, leading most citizens to view the 18th-century militia system as outdated and extraneous.

[brickeyee]

If we do not claim the 2A as our inalienable right now, We could very easily lose it entirely in the legal twists and turns that will surely come following the above ruling.

No argument there, and it has been so declared by SCOTUS at this point.

Though "inalienable right" is a term from the Declaration of Independence, and has no real legal force.

No the misconception is that the signers of the BOR would do so knowing that these inalienable rights of the people could be taken away by subordinate governments. .

More likely they never even considered such a thing could happen, but it surely did.
As written the Constitution limits the power of the Federal government and not the states.

What may have been discussed outside the Constitutional Convention has no import except when the words of the Constitution are in question.

While it declares "Powers of Congress," "Limits on Congress," & "Powers Prohibited of States" among other sections, it does not purport to apply the BoR to the states anywhere until the passage of the 14th amendment.

[BlueTrain]

The notion of a private militia santioned by the state, while sounding a little farfetched today, was essentially the method by which army units were raised in the 18th century and that method persisted into the 19th century. That was really the way the British Army worked. Basically, the government paid the colonel an amount of money to raise a regiment and unfortunately, it was worked as a profit making scheme. It developed some bad habits and it's a wonder it worked at all.

Real militias (not regulars) came and went with the perceived threat to the nation, here speaking both of the US and of Great Britain but there was great enthusiasm for the concept in the 1840s and 1850s. Enthusiasm for the idea on the part of war departments was usually not so great, however, not because of any doubt about the loyalty of those units but because of doubt of their fighting value. That eventually was proved, however, and some of those old units are actually still in existence, or at least their descendents. In this country, some saw Confederate service but they're still around. A couple are quite exclusive and have rather pretentious social opinions of themselves, both here and in Great Britain and in both places they have been thoroughly integrated into the defense planning of the country.

Do you imagine anyone ever worried that the militia might be a threat to the state (not the national government)?

[NickySantoro]

How to explain the second amendment

The intention of the Second Amendment is to insure that the government does not have sole access to the means of coercive force. It's just that simple.

[Hugh Damright]

I believe that in using the words "...the security of a free State..." in the 2A, the founders meant that the states would be secure from external forces, NOT from the federal government.

A free State is a State with free government. And free government means that the people are ruled only by laws which they consent to. I hardly see how the Second Amendment was intended to secure free government against foreign rule by not to secure it against federal rule. I think the point was to secure free government against any threat, whether foreign or domestic.

[Hugh Damright]

More likely they never even considered such a thing [as States infringing on the RKBA] could happen

I think it was understood that State governments could violate rights, and that is why the States had their own bills of rights. It's not as if the reason they wanted a USBOR to limit only the US government was because they thought the States could do no wrong. They wanted a USBOR to limit only the federal government because that is how contitutionalism works i.e. a constitution frames a government and a bill of rights limits THAT government. The US Constitution was framing a new government, and some wanted a BOR to limit it. They were concerned that the US Constitution was creating a government that was too powerful. The last thing they would have done is requested amendments to increases federal power beyond all measure by making the federal government the "protector of rights".

[cannonfire]

And free government means that the people are ruled only by laws which they consent to

So if I didn't give my consent on a law, I don't have to follow it?

[Hugh Damright]

So if I didn't give my consent on a law, I don't have to follow it?

OBVIOUSLY, it is the people, not each person but the people, that consent to laws. Whether you personally consent or not has no bearing on the matter.

"In every free government, the people must give their assent to the laws by which they are governed. This is the true criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one, or a few." Antifederalist Paper #1

[BlueTrain]

No doubt some would have said that a monarch would be as just as a republic. After all, there is such a thing as a constiutional monarchy, although they would have not recognized it in the 18th century. Yet some had experience with dictators (lord protectors) and decided an old fashioned monarch was better. We had our own ideas.

They should have been particularly conscious of the security concerns for a free state at the time of the convention, the revolution not being all that distant an event and for some people, even the French & Indian War was not so long ago. Serious war was developing in Europe (as usual) and actual foreign invasion must have been on their minds, and that even happen not many years later. There was tension with Canada, too. In that sense, the constitution was not written in a vacuum (as I said before).

A stronger (if not strong) federal government was one of the objects of the convention, the previous arrangement having shown up some shortcomings. No doubt that bothered some people, probably people with something to lose.
There were troubles with Indians periodically, in places, but frontier security in most places was already being handled by quasi-regular state forces, sometimes referred to as rangers (even then). That was largely the arrangement up and down the Allegheny Front but it wasn't long before the regular army took on that function, especially after the battle of Fallen Timbers, but local militia forces continued to be important until the frontier went beyond the Mississippi River. At the moment we may not fully appreciate the role the regular army had in "pacifying" the west.

However, even after local militia forces of a traditional sort began to be replaced by more regularly organized and equipped state forces, I think it is unquestionable that private ownership of firearms was a generally accepted fact, everywhere. The idea that the absense of a militia muster on the village square commanded by the local squire somehow made a difference in whether or not you could own a nickel plated, break top .38 S&W revolver is entirely a recent idea. The next thing you know is someone suggesting that you should pay a special tax to be able to vote.

[carguychris]

A free State is a State with free government. And free government means that the people are ruled only by laws which they consent to. I hardly see how the Second Amendment was intended to secure free government against foreign rule by not to secure it against federal rule.

If the founders intended for individual states to be able to choose whether or not to follow federal rule, why doesn't the Constitution contain any provisions allowing states to legally void federal laws without Congressional intervention, dissolve Congress, and/or secede?

The American system of government is based on the rule of law. IMHO this more than anything else has made the USA into a great country and a model for the world to follow.

The rule of law falls apart if individual jurisdictions can choose to ignore it. It falls apart a lot faster if armed groups, even those acting under quasi-governmental sanction, believe they're allowed to overthrow the federal government by force of violence. This is not a legal remedy. The proper legal remedy is two houses of Congress representing the people.

The 2A is not a self-destruct mechanism.

[Hugh Damright]

If the founders intended for individual states to be able to choose whether or not to follow federal rule, why doesn't the Constitution contain any provisions allowing states to legally void federal laws without Congressional intervention, dissolve Congress, and/or secede?

I was not talking about resisting federal rules, I was talking about resisting federal RULE as in being ruled over as in monarchy. Of course, Virginia consented to a central government with certain enumerated powers, I am not talking about resisting that ... I am talking about Virginia resisting a central government that is out of control and removed from anything which we ever freely consented to.

The US Constitution does not declare the right to alter or to abolish government. It does not follow that there is no such right. Both the Declaration of Independence and my Virginia Declaration of Rights declare that the majority of Virginians have a right to alter or to abolish our government, and that specifically means secede. The US Constitution does not seem to create a federal power to prevent secession, I don't see how we can construe the US Constitution being quiet on the matter to mean that the US power exists.

The American system of government is based on the rule of law.

I think you're saying that rule of law precludes nullification. I don't remember saying anything about nullification, but I am not sure that I agree with your premise. In a free State, the people are ruled only by laws which they CONSENT to. You seem to be saying that Virginia consented to a federal government with enumerated powers, and as a result we are bound to accept the federal government exercising undelegated powers. I don't see how you remove consentual government from rule of law. As an analogy, if California passes a law regarding Virginia's intrastate affairs, then rule of law requires Virginia to ignore that law because California would be exercising a power over Virginia that Virginians never consented to. How is it different if the US does it?

to overthrow the federal government by force of violence ... is not a legal remedy.

Who said anything about overthrowing the federal government? I really don't see how one State could overthrow the other 49.

What about in 1775 in Virginia, when we had British troops here, supposedly to protect us, but really to dominate us ... the French/Indian wars were over, and Virginians declared that we could provide for our own protection ... that a standing army in times of peace was a danger to our political liberty, that the proper/safe/natural defense of a free State is composed of the people of that State, organized into well regulated militia ... it was declared that we especially needed militia at that time ... it seems clear enough to me that the only threat at that time was from our own British government, and that the intent was to be able to stand up to them in defense of our freedom. I see no reason at all to believe that when Virginia requested the Second Amendment, declaring these same principles, that we meant to say that we have a right to resist only foreign threats to our free government.

[HiBC]

Didn't Thomas Jefferson say something to the effect the true reason for the RTKABA is to prevent tyranny in government?

[BlueTrain]

If I may interject a footnote of history here, one of the causes of the revolution was some disagreement over taxation. The taxes in question were to pay for the war that had ended recently. The colonists, and I might say, the British colonists, had no real say in the matter. But by then, they had ceased to think of themselves as "British colonists" and were thinking of themselves as American colonists. Few of the colonial leaders had lived overseas or gone to school there. They were new growing in new soil, so to speak, although even then, some of them had gone to Harvard, Mary & Bill and maybe even Yale. That part hasn't changed.

Anyhow, that was the gist of the problem. Read the Declaration of Independence for more details. Some of the grievances sound a little quaint today, like the thing about quartering of soldiers but you have to think like it was 1775. The pot really only boiled over when the British tried to take the arms that the colonists thought were theirs, both in Massachusetts and in Virginia. It was a bad time to be a governor.

[Al Norris]

Hugh, we are not going to re-fight the civil war. This thread is not about the sovereignty of the Commonweal of Virginia or Virginians.

If you are not here to discuss the topic of this thread, then I suggest you leave.

[zukiphile]

How to explain the Second Amendment?

While there is a good deal of substantive material in this thread, the other way to respond to the question is as a question of method.

One error advocate often make is to omit the first step of identifying who you are communicating to. If you are hashing an issue out in front of an audience, your first priority is not to convert your opponent, but to persuade the audience. That can make an enormous difference in what you say.

The other error advocate routinely make when they identify an opponent is to fail to identify the basis of their opposition. Knowing why a person might not care for the 2d Am might take some questions and listening. Talking past his position is rarely persuasive to anyone, and may even convince your opponent in conversation that your own position is associated with some level of personal vice.

If you let someone vent about their frustrations and concur on the reasonable ones, you are more likely to receive a genuine hearing for your own.

[Hugh Damright]

Hugh, we are not going to re-fight the civil war. This thread is not about the sovereignty of the Commonweal of Virginia or Virginians.

If you are not here to discuss the topic of this thread, then I suggest you leave.

I think I am discussing the topic by commenting on the meaning of the Second Amendment's term "free State", and by commenting on the intent of militia.

Someone said that a "free State" meant individuals in a state of freedom, someone else said that it meant being free from external/foreign threats but not from federal threats. I think it has to do with free government at the state level and state sovereignty. And I think militia was intended to defend our free States against both foreign and domestic threats. I don't see how other people are on topic when they say what they think these things mean, and then I am off topic when I express my opinion.

[BlueTrain]

While the 2nd admendment did not establish militias or the concept thereof, at the same time I cannot see that the right to bear arms was written into the constitution in order to enable revolt against the entity created by it. You, anyone, may think the constitution establishes a loose confederation of states that any could leave if enough people wanted to but clearly that was what it replaced. In any event, that could not be the purpose of the 2nd admendment.

I'm still not certain how I would go about explaining the 2nd admendment to anyone who had never heard of it but it is only one sentence long and it would seem to be wrong to leave anything out, given how short it is already.

[carguychris]

I think I am discussing the topic by commenting on the meaning of the Second Amendment's term "free State", and by commenting on the intent of militia.

Someone said that a "free State" meant individuals in a state of freedom, someone else said that it meant being free from external/foreign threats but not from federal threats. I think it has to do with free government at the state level and state sovereignty. And I think militia was intended to defend our free States against both foreign and domestic threats.

Hugh, perhaps we need to agree on a definition of a "domestic" threat.

For argument's sake, let's say that elements of the US federal government choose to openly and blatantly abrogate the Constitution- the President declares himself "President for Life", and with the help of a junta of US Army generals, marches an army on the capital, forces the Congress and Supreme Court to dissolve, imprisons the congressmen and justices, and replaces them with handpicked US Army officers. If something like this were to happen, the states could then call forth their well-regulated militia to restore a constitutional government. I can agree that the militia clause of the 2A was written with this sort of scenario in mind.

OTOH, if a constitutional federal government is in place, the Congress has the power to call forth and organize the militia under Article I, Section 8 and the President is the militia's commander in chief under Article II, Section 2. Any action by the militia against a duly elected and constitutional federal government is by definition an illegal and treasonous act.

[zukiphile]

Originally Posted by carguychriss

For argument's sake, let's say ...

OTOH, if a constitutional federal government is in place, ...

I find it unlikely that those who ratified the COTUS had only one opinion on this point. After all, the government against which they had recently taken up arms was a legitimate sovereign whose foremost error was imposing a modest level of taxation in order to pay for war against the colonists enemies.

The idea that a federal government would take more than a quarter of someone's income would have stressed their imagination.

[BGutzman]

Most anti-second amendment advocates refer to the first half of the clause, saying it only applies to militias. They are exactly correct, but not in the way thay think they are.

It is a complete fallacy to think that one only had the right to bear arms because they were a member of a militia. A quick look at the history of the founding of our country will help.......

At the time of the founding individuals and familys had firearms and other types of arms, some (a very few) familys even had personally owned cannons. The reason the founding fathers had these weapons was it directly derived from english law and common customs in many places and times throughout anglo saxon history although the concept itself is not solely a anglo saxon idea by any means.

It was and is a inherent right of every individual to be armed so long as they are not under some form of arrest or confinement. These individuals as they had arms and were armed could be called upon to form militias for the defense of any community or state but it was up to the will of the individual to join a militia.

In fact without doing a lot of digging in early american history you can find lots of felons who had no need of expungement to bear arms as the right was absolute and only later became corrupted due to religious or poliical considerations. (Again only once the confinement or arrest was over)

The right to keep and bear arms simply points out that the armed people may indeed form militias and there right to keep and bear arms was not to be infringed.

I personally believe the founding fathers would be horrified to see where we are in this country now on this issue, but thats my opinion, your milage may vary.

[carguychris]

find it unlikely that those who ratified the COTUS had only one opinion on this point. After all, the government against which they had recently taken up arms was a legitimate sovereign whose foremost error was imposing a modest level of taxation in order to pay for war against the colonists enemies.

The idea that a federal government would take more than a quarter of someone's income would have stressed their imagination.

The problem wasn't taxation in and of itself; the problem was that the English monarchy didn't care what the colonists thought about the taxation, or what they thought about most anything. The American Revolution occurred because the colonists wanted to determine their own destiny.

The Constitution was created because the former colonists wanted a legal and self-determined method by which to resolve grievances without again resorting to war. If one dislikes the level of federal taxation, the constitutional solution is to elect representatives who will legally change it, not to take up arms and depose the federal government!

It is a complete fallacy to think that one only had the right to bear arms because they were a member of a militia.

Agreed; I don't think anyone here is debating that. Most of the last 2 pages of this thread have been dedicated to arguing why the militia clause was even necessary if it doesn't affect the RKBA.