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Old April 28, 2009, 06:52 PM   #51
Webleymkv
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Antipitas and Tennessee Gentlemen,

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

Isn't the preservation of the ability to raise a militia, inherent in the amendment? And if not, what about all that talk by the court of resisting a tyrannical government? Or are you suggesting that the national guard would do that on our behalf?
I can't speak for Antipitas and Tennessee Gentleman (though I am interested to see their replies).

It would appear to me that while the preferatory clause is not meaningless (I believe that the original purpose of the Second Amendment is still a valid one), neither is it a condition on which guarantee of Second Amendment rights hinges. Therefore, I would say that while the purpose of the Second Amendment is to guarantee the right of the militia to be armed, it also guarantees the rights of all the people to be armed.
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Old April 28, 2009, 07:06 PM   #52
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Originally Posted by maestro pistolero
If the militia is a completely dead issue,
It is a dead issue as to the individual RKBA. Prior decisions and law was interpreted to mean that the right was related only to service in the militia and not for personal self defense.

Quote:
Originally Posted by maestro pistolero
Isn't the preservation of the ability to raise a militia, inherent in the amendment?
Yes and the states can still do it if they wish and arm them too but they don't need to because of the National Guard.

Quote:
Originally Posted by maestro pistolero
what about all that talk by the court of resisting a tyrannical government?
Dicta. The belief then (1789) was that we would have little or no standing army and that the state's militias would resist tyranny as they would be more loyal to the state and would resist a tyrannical central government. Since the militias would be larger than the standing army and controlled by the states the central government would not be able to take over.

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Or are you suggesting that the national guard would do that on our behalf?
If it came to that yes, but it would not because of our democratic institutions.
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Old April 28, 2009, 07:21 PM   #53
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Originally Posted by Webleymkv
arming the militia was the purpose of the Second Amendment.
Actually the 2A was the result of fears by the anti-federalists that under the articles of the COTUS that the federal government had taken control of the militias and the states were afraid that the states militia would be disarmed.

Here is a good video: http://www.youtube.com/watch?v=jPBm_...eature=channel and even though the Professor is not progun he is historically correct.
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Old April 28, 2009, 07:31 PM   #54
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Quote:
Quote:
Originally Posted by Webleymkv
arming the militia was the purpose of the Second Amendment.

Actually the 2A was the result of fears by the anti-federalists that under the articles of the COTUS that the federal government had taken control of the militias and the states were afraid that the states militia would be disarmed.
So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia and thusly ensures that the militia can be armed.
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Old April 28, 2009, 07:45 PM   #55
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Originally Posted by Webleymkv
So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia.
Militia of the state. The state through it's elected government had raised and armed militias (going back to their colonial charters) and 2A protected those militias. The state's choose to (probably because of cost) require the members of the militia to provide their own arms. Sometimes however, the state would provide arms to those who had none. Today, that militia is the National Guard.
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Old April 28, 2009, 07:55 PM   #56
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Quote:
Originally Posted by Webleymkv
... it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia.
Remembering that the prefatory clause was but one explanation, then yes, this is loosely correct.

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

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

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

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

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

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

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

However, I don't believe the scenario, above, would actually play out in that manner, as we would effectively be in another civil war. Not something to think lightly upon. Also something off topic to this thread.
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Old April 28, 2009, 07:55 PM   #57
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Quote:
Originally Posted by Webleymkv
So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia.

Militia of the state. The state through it's elected government had raised and armed militias (going back to their colonial charters) and 2A protected those militias.
While the Second Amendment did indeed protect the state militias, it did so by protecting the rights of the people (who comprised the militia). It is impossible to disarm the militia if you cannot disarm the people who compose it.
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Old April 28, 2009, 07:56 PM   #58
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TG,

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

Assuming arguendo that the militia is dead, isn't this nevertheless exactly the kind of contribution to the security of the state that the second amendment was designed to protect?
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Old April 28, 2009, 08:09 PM   #59
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Quote:
Originally Posted by Webleymkv
it did so by protecting the rights of the people (who comprised the militia).
No I think the preferatory clause protected the right of the state to arm the militia (so the Feds couldn't disarm it) and that the operative clause protects the right of individuals to bear arms in their own personal self defense.

Quote:
Originally Posted by maestro pistolero
Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?
I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible. We will not fight an enemy of the United States with a militia but a standing army, and navy (or air force).

Two things killed the militia; first most Americans do not like military service and didn't want to serve (this attitude is where the term "unorganized militia" first came from, which was created to get people out of serving in the militia), and second the nature of modern warfare rendered them obsolete.
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Old April 28, 2009, 08:12 PM   #60
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fuel for discussion

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

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

Consider the important phrases such as "Congress shall make no law..." and "shall not be infringed", among others.
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Old April 28, 2009, 08:31 PM   #61
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Originally Posted by 44 AMP
that the Founders considered our right to arms
I think the real right there is one of self defense.

Quote:
Originally Posted by 44 AMP
Consider the important phrases such as "Congress shall make no law..." and "shall not be infringed", among others.
That's OK as long as we acknowledge that all rights are subject to restriction and if those restrictions meet certain constitutional tests then there is no infringement of said right.
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Old April 28, 2009, 08:32 PM   #62
Webleymkv
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Quote:
Quote:
Originally Posted by Webleymkv
it did so by protecting the rights of the people (who comprised the militia).

No I think the preferatory clause protected the right of the state to arm the militia (so the Feds couldn't disarm it) and that the operative clause protects the right of individuals to bear arms in their own personal self defense.
The preferatory clause is simply an explanation of the purpose of the operative clause. The preferatory clause in and of itself protects nothing.

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

I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible. We will not fight an enemy of the United States with a militia but a standing army, and navy (or air force).
Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

http://www.ca9.uscourts.gov/datastor...20/0715763.pdf

Quote:
The salient policies underlying the protection of the right to
bear arms are of inestimable importance. The right to bear
arms is a bulwark against external invasion. We should not be
4508 NORDYKE v. KING
overconfident that oceans on our east and west coasts alone
can preserve security. We recently saw in the case of the terrorist
attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.1 Second, the right to bear arms is a protection against
the possibility that even our own government could degenerate
into tyranny, and though this may seem unlikely, this possibility
should be guarded against with individual diligence.
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Old April 28, 2009, 08:34 PM   #63
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I have to say that this has been a lot more interesting than the previous couple of discussions I've followed on this topic.
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Old April 28, 2009, 08:43 PM   #64
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Quote:
Originally Posted by Webleymkv
The preferatory clause is simply an explanation of the purpose of the operative clause.
Which was the right of the state to arm a militia and the right of the individual to protect himself personally.

Quote:
Originally Posted by Webleymkv
Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.
Again it is dicta and not law. He is free to his opinion which in the issue here IMO he is no better informed than I. However, he is talking about small scale incursions by terrorists and not a conquering large scale invasion from another nation state which is what I thought MP was talking about. In the case of a terrorist the issue is self defense as would apply to a citizen not repelling a foreign army which would be opposed by our own.
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Old April 28, 2009, 09:05 PM   #65
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Quote:
Quote:
Originally Posted by Webleymkv
The preferatory clause is simply an explanation of the purpose of the operative clause.

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

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

Again it is dicta and not law. He is free to his opinion which in the issue here IMO he is no better informed than I. However, he is talking about small scale incursions by terrorists and not a conquering large scale invasion from another nation state which is what I thought MP was talking about. In the case of a terrorist the issue is self defense as would apply to a citizen not repelling a foreign army which would be opposed by our own.
So you disagree with the Judges opinion? Maestro Pistolero asked about the capacity to which armed citizens would serve in situations described by Nordyke. Apparently, you do not think they would serve at all. While you are certainly entitled to your opinion, that of Judge Gould carries a bit more weight that those of people who post anonymously on the internet.
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Old April 28, 2009, 09:18 PM   #66
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Originally Posted by Webleymkv
The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.
I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both. I think there were two purposes at work when the 2A was written and the militia of the states were one and the individuals RKBA was the other. Heller clarified this and that is what Al meant when he said the miltia was no longer an issue with the individual right. I think you are trying to in a round about way come back to your views of the militia today which I thought we weren't going to rehash?

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

Quote:
Originally Posted by Webleymkv
that of Judge Gould carries a bit more weight that those of people who post anonymously on the internet.
Says you. You only like what he says and if he said something else you wouldn't give him such weight. I never heard of the guy and could care less what his dicta says. It isn't law. Anyway, Webley I am not trying to change your mind as it is already made up.
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Old April 28, 2009, 09:29 PM   #67
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Tenn Gentle posted:
Quote:
Nothing in that act refers to anyone in the unorganized militia being "armed".
I agree that nothing in the Dick Act of the Militia Act of 1903 mentions anything about anyone being armed. However, the second amendment does mention the individual right to keep and bear arms. One reason is so that citizens may either be called forth or volunteer for militia duty, under authority of government or law enforcement officials, and bring their own arms to do so. Thus, the unorganized militia, is comprised of all males ages 18-45 and those women who are part of the National Guard. Those members are not required to have arms, however, they have a right to keep and bear arms. That was my point. I never said that the 1903 law stated that the unorganized militia was to be "armed". You misread my post.
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Old April 28, 2009, 09:37 PM   #68
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I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible.
Nor answer the question directly, with all due respect, and there is much.

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

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

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

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

I think we overlook the wisdom of that idea at our own peril. I am not ready to decide that the whole idea of the militia, or at least the capability of raising one, is useless and outdated.
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Old April 28, 2009, 09:40 PM   #69
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Originally Posted by USAFNoDak
One reason is so that citizens may either be called forth or volunteer for militia duty, under authority of government or law enforcement officials, and bring their own arms to do so.
Again, that is not the purpose of the unorganized militia, it has no other purpose than the one I reported earlier. Did you take a look at the link I provided?

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

Also, IF and that's a huge one, such a militia were ever called I suspect the states would supply the weapons if for no other reason pure logistics.
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Old April 28, 2009, 09:54 PM   #70
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Originally Posted by maestro pistolero
Nor answer the question directly, with all due respect, and there is much. I fail to see how a nuclear weapon would prevent a surreptitious attack through our demonstrably porous borders. We haven't made so much as a dent in the wholesale flow of contraband and undocumented individuals from the south.
You said "foreign invaders" and since I did not see what you were talking about (I didn't look at Nordyke for the specific quote) I assumed you were talking about invasion of a foreign army. I would suggest next time to provide the quote directly so I know what you mean.

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

Quote:
Originally Posted by maestro pistolero
The people, on the other hand are everywhere.
And generally untrained and unorganized to resist much more than attacks against their direct person. But I do support RKBA and CCW very much so do I think that helps us in general? Sure, but that is not a militia.

Quote:
Originally Posted by maestro pistolero
I am not ready to decide that the whole idea of the militia, or at least the capability of raising one, is useless and outdated.
I would talk to your state government then and see why they won't raise one. They can if they wish. Why do you think they don't?
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Old April 28, 2009, 09:55 PM   #71
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The Second Amendment "grants" nothing. The right to keep and bear arms is not a right granted by the Second Amendment, nor is it in any way dependent upon it for it's existance.

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

The Second Amendment prevents disarmament of the state militias through the protection of the people's right to keep and bear arms. The two clauses are connected, but the operative clause is not dependent upon the prefatory clause as some of the anti gun folks have tried to argue. The Heller case should put that arguement on the trash pile as we go forward with the debate. Nordyke also makes a point that the Second Amendment holds against the states as well. Thus, the states cannot disarm their citizens if this holds and gets a hearing at the USSC, eventually.
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Old April 28, 2009, 10:06 PM   #72
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Quote:
Originally Posted by USAFNoDak
The Second Amendment "grants" nothing.
I did type too fast and used grant when I meant protect. My Bad

Quote:
Originally Posted by USAFNoDak
The two clauses are connected, but the operative clause is not dependent upon the prefatory clause as some of the anti gun folks have tried to argue.
Agree. However, the reason the antis argued that was because the militia is defunct. Therefore if they could make them dependent on each other then they could restrict guns anyway they chose.

BTW, the 2A only protected the states and individuals from the Feds. The states, however, could disarm anyone they wished and did so with freed slaves.
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Old April 28, 2009, 10:13 PM   #73
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Tenn Gentle:
Quote:
Again, that is not the purpose of the unorganized militia, it has no other purpose than the one I reported earlier. Did you take a look at the link I provided?

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

Also, IF and that's a huge one, such a militia were ever called I suspect the states would supply the weapons if for no other reason pure logistics.
I read the link you provided and nowhere did I see where it said that the states could not call upon the members of the unorganized militia to come forward for duty. I saw where it explained the reasoning for splitting the militia into those two areas, and I understand that some people did not want to serve in militia duties. But the law said they must, so they came up with a "work around" for the law. I don't dispute that at all. But, let's say I'm a 24 year old who got out of the army infrantry two years ago. I decide not to join the national guard after my regular tour is over, but if the SHTF, I'd like to volunteer for militia duty and bring my AR-15 and my 1911 with me. What's to say the state couldn't call up like minded individuals to help out if their own national guard was off doing duty for the feds? In the situation I just described, aren't I "legally" part of the unorganized militia?

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

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

The unorganized militia is not today's functioning militia, and the functioning militia is the National Guard. I've not said this wasn't the situation. However, when the 2nd A was written, the militia was not split as it is today. Today's unorganized militia, while being a pool of potential draftees, still has members who have a right to keep and bear arms. Maybe we will have to draft them or let them volunteer to help if the SHTF.
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Old April 28, 2009, 10:18 PM   #74
USAFNoDak
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BTW, the 2A only protected the states and individuals from the Feds. The states, however, could disarm anyone they wished and did so with freed slaves.


Yes, but that may change with Nordyke setting some precedent. I suspect the USSC will have to take up incorporation at some point in time. If we've already got the looney 9th Circuit on board with incorporation of the Second, I like our chances with other circuit courts and the USSC. Still, nothing is for sure when dealing with our court systems.
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Old April 28, 2009, 10:30 PM   #75
Al Norris
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Quote:
Originally Posted by honkylips View Post
They way I read it, I always take it to mean that the public has the right to keep/bear arms for the purpose of maintaining the aforementioned 'well regulated militia'.

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

I hazard to say that the question has been answered.

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

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