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Old June 15, 2010, 09:36 AM   #51
Old Grump
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Here is the bare knuckle truth... The 2nd ONLY applies to the FEDERAL government. Because of the 9th and 10th amendments, your state MAY completely outlaw guns- it depends on your STATE constitution. How else can you explain the various gun laws each state has?
Bare knuckle truth is that the 2nd amendment applies to the individual and only ...

The rest of a very long post has been deleted because I don't like to........lets just say it's better deleted.
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Old June 15, 2010, 11:04 PM   #52
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Originally Posted by peetzakilla
I don't think that the 2nd (or any other amendment) was intended to apply to the states for the simple reason that I don't think that the founders envisioned the people losing control of the state governments. The states are supposed to be close to the people, under our control. I don't think that we have control of TOWN governments the way that we are supposed to have control of STATE governments.
A great observation. When the United States was formed, the entire nation's population was less than 4 million, or slightly less than the current population of the Atlanta metro area. The most populace state was Virginia, which had a population less than the current population of the city of Indianapolis.
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Old June 18, 2010, 07:11 PM   #53
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Being of a somewhat literal bent, and not being a lawyer, I tend to take a more rational (to me) view of the whole mess. Irrespective of what the courts have claimed the 2nd Amendment does or does not say or regulate or to whom it does or does not apply, I believe to arrive at an understanding of the original intent one needs only to read the Bill of Rights.

The chaps who drafted that document were generally learned men. They knew how to speak and to write English. They certainly knew who and what the Federal government and the Congress were. In the 1st Amendment, where they intended to limit the Federal Congress, they specifically said "The Congress" shall make no law ...

But in the 2nd Amendment, there is no mention of the Congress. There is only a blanket prohibition: The RKBA shall not be infringed.

Of course, I also take note of the fact that it IS a blanket prohibition. There is no toehold in the 2nd Amendment for "reasonable" regulation. Regulation IS infringement, and the 2A does NOT say the RKBA shall not be "unreasonably" infringed.

But ... nobody has asked for my opinion, so I reckon the blackrobes will make do on their own.
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Old June 18, 2010, 08:29 PM   #54
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But ... nobody has asked for my opinion, so I reckon the blackrobes will make do on their own.
No, you're right on. Whether the black robes agree is another matter. A week from Monday, we'll know.
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Old June 18, 2010, 08:40 PM   #55
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Of course, I also take note of the fact that it IS a blanket prohibition. There is no toehold in the 2nd Amendment for "reasonable" regulation. Regulation IS infringement, and the 2A does NOT say the RKBA shall not be "unreasonably" infringed.
Ah! But we must apply a reasonable standard of common sense. Is any right EVER absolute, inviolable? I don't think so.

Life?
Liberty?
Pursuit of happiness?
Free Speech?
Religion?

None of those are absolute, and none of them should be. The RTKBA is no exception. Should Bill Gates be able to own nuclear weapons? I think not. You'll note that the amendment does not clarify "arms". It doesn't say "rifles", "pistols", "cannons" or "bombs", it says "arms".

It a world of "absolute" freedoms, what we would have is anarchy, not freedom.
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Old June 18, 2010, 10:42 PM   #56
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There is no toehold in the 2nd Amendment for "reasonable" regulation. Regulation IS infringement, and the 2A does NOT say the RKBA shall not be "unreasonably" infringed.
Sorry, I'm with Peetza on this one. If the 2nd Amendment is absolute, then how can we deny a convicted murderer on death row the right to keep and bear arms?

Does anyone believe that the Founding Fathers intended criminals in prison to have the right to keep and bear arms? Thought not. Then the 2nd Amendment isn't, and never was intended to be, absolute.

The real interesting show is about to begin, as we eke out the definition of the word "reasonable" in court decisions over the next few years.
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Old June 19, 2010, 08:08 AM   #57
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As usual, great discussion here on the 2A.

I'm getting so excited about the soon to be released McDonald decision that I can hardly contain myself.

Hopefully, ALOT of our questions will be answered?

Hurry up SCOTUS!!!
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Old June 19, 2010, 08:46 AM   #58
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The 2nd Ammendment "MUST" apply to the states if we are to remain in within what the framers of the C onstitution (& Bill of Rights) intended. Remember the protections in the constitution are not new rights but rather rights that were agreed to be natural and inherent in all peoples. Any state that would not recognize these rights would almost certainly be considered tyranny if you are to look at a broad range of statements from the framers of the constitution.

The rights were built as limitations to government not as limitations to people.

George Washington himself wanted citizens to have sufficient arms and ammuniton to protect themselves from anyone who might seek to violate there freedoms (especially government). My interpertation of the words as he spoke them (not given in exact form here) is that you didn't need a judge or legal system to back you oppinion that something was tyranny but that you were able to come to this decision for yourself and thus empowered to protect yourself.

I would contend that in part the 2nd Ammendment wasnt just about allowing a person to protect themselves from harm due to BG's but it was directly intended to allow a person to fight back against government when the government decends to the level of tyranny. It was part of the vigilance that all men (and women) owed as a duty.
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Old June 19, 2010, 09:01 AM   #59
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The rights were built as limitations to government not as limitations to people.

The COTUS was built as a limit to the FEDERAL government. The states were supposed to me under control of the people.

"Congress shall make no law establishing a state religion."

Do you realize that Massachusetts, I think one or two more states, had official state religions for YEARS after the constitution?

Why? How? Well, for one thing, the states are not "congress". For another, that amendment, and all the others, doesn't apply to the states.

Back in the days of the constitution, the people had FAR more allegiance to their own states than the did to the "United States". Who was the civil war general from Virginia that joined the confederacy only because Virginia did? The states were where they were involved, the states were under control of the people.

See, in those days, it was assumed that the states WERE the people. The actions of the state governments in modern times would have been unthinkable. It wasn't necessary for the COTUS to apply to the states. They wouldn't have removed the rights of the people. (As "people" was defined at the time, that's another discussion.) They WERE the people. The people wrote their OWN constitutions, and they included protections for their God-given rights.

The single biggest problem that we have today, the source of most of our other problems, is that we have long since lost control of the STATE governments. They are no longer of the people, for the people. They are of the bureaucrats, for the powerful and connected.

If we regained control of our state and local governments we would, by default, regain control of the Federal government.
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Old June 19, 2010, 10:04 AM   #60
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The COTUS was built as a limit to the FEDERAL government. The states were supposed to me under control of the people.

"Congress shall make no law establishing a state religion."

Do you realize that Massachusetts, I think one or two more states, had official state religions for YEARS after the constitution?

Why? How? Well, for one thing, the states are not "congress". For another, that amendment, and all the others, doesn't apply to the states.

Back in the days of the constitution, the people had FAR more allegiance to their own states than the did to the "United States". Who was the civil war general from Virginia that joined the confederacy only because Virginia did? The states were where they were involved, the states were under control of the people.

See, in those days, it was assumed that the states WERE the people. The actions of the state governments in modern times would have been unthinkable. It wasn't necessary for the COTUS to apply to the states. They wouldn't have removed the rights of the people. (As "people" was defined at the time, that's another discussion.) They WERE the people. The people wrote their OWN constitutions, and they included protections for their God-given rights.

The single biggest problem that we have today, the source of most of our other problems, is that we have long since lost control of the STATE governments. They are no longer of the people, for the people. They are of the bureaucrats, for the powerful and connected.

If we regained control of our state and local governments we would, by default, regain control of the Federal government.


That is not the case. The 10th Amendment is proof enough that there is a separation between the "states" and "the people" as two different entities.

The People wrote the US Constitution forming a central government. That constitution then created a means to form states, which also guaranteed each new state a republican form of government. The people then wrote each state's constitution either prior to or post constitutional ratification. As states entered the newly formed union under the constitution they were bound to the terms of the people's constitution as supreme law of the land, also any amends to the constitution there after. The people specifically reserved the RTKA to themselves in an amendment, which the states must honor as if it were part of the original constitution.

Legally, these present states did not exist prior to the US Constitution's ratification. They were states, colonies, territories, republics, of other charters, nations, etc. The US Constitution doesn't just set parameters of the central government, it also sets restrictions on the states in other Articles thus furthering the proof that the Constitution applies to the states as well.

Had the Founding Fathers wanted to share the Right to Keep and Bear Arms between the states and the people, they would have written the 2nd Amendment as they did the 10th Amendment.
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Old June 19, 2010, 10:27 AM   #61
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there is a separation between the "states" and "the people" as two different entities.
I don't mean literally that they were the people. Of course they're two different entities.

This sentence is a little more clear:

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They (the state governments) wouldn't have removed the rights of the people. (As "people" was defined at the time, that's another discussion.) They WERE the people. The people wrote their OWN constitutions, and they included protections for their God-given rights.
I say "they were the people", I mean the states were closely controlled by the people. They wouldn't have turned on the people the way that they have today. It would be like running your own company in a way that would bankrupt you personally. It just wouldn't happen. Today, the states AREN'T the people. They are giant special interest groups and have little, or no, concern for the rights of "the people".

Think of it.... almost every state constitution has it's OWN "Right to Keep and Bear Arms". Why would the 2nd of the COTUS need to be applied to the states? It shouldn't need to be at all, but we've lost control. The states no longer represent us. They represent power and influence. That's the ONLY reason why we even have this discussion. If the states were operating like the states are supposed to operate, the applicability or not of the COTUS there to would be irrelevant.
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Old June 19, 2010, 01:30 PM   #62
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Think of it.... almost every state constitution has it's OWN "Right to Keep and Bear Arms". Why would the 2nd of the COTUS need to be applied to the states? It shouldn't need to be at all, but we've lost control. The states no longer represent us. They represent power and influence. That's the ONLY reason why we even have this discussion. If the states were operating like the states are supposed to operate, the applicability or not of the COTUS there to would be irrelevant.


True enough, most states do have a RTKBA clause in their respective constitution. However nearly all states violate their own charters too. The application of the 2A against the states was a guarantee to the people, by the people. It was to assure that every level of government nationwide could not infringe upon. States' constitutions then can enumerate any right or power that wasn't set aside in the COTUS via the 10th Amendment, either reserving it for the People, for the State, or shared between the two, or or reinforce said rights/powers that were initially reserved by the COTUS. Any enumerated right is strictly reserved to the entity that is named, which with the 2A is the People's RTKBA, and the State's right to keep a militia. That is the intent of the FF's regardless of how centric biased courts have ruled since.

Application against the States is by default acknowledgment and acceptance as becoming a member of the Union. The COTUS is the supreme law of the land, of which grants the people's power to create and accept states to the central government. The People's power and rights came first, then we created the COTUS which formed the US of A, which allowed states to join. ..The dog cannot be master of the owner.

Later in years the 14A was ratified to assure that all said rights and powers were to by guaranteed to all races and classes of citizens. Incorporation of the 2A via the 14A is an abomination of COTUS seeing how WE set the 2A aside for ourselves. Why would we set aside a right to only allow a state government to infringe upon it?

Even if we accept the power of the state to police the RTKBA, states that create an obstacle like fees or taxes(licenses), or laws that make it impractical practice our human and enumerated rights are in violated of US and State constitutions(see Murdock v Commonwealth 1943). At minimum, if we accept the state policing power, requiring a license/permit to carry without leaving an unregulated unlicensed means to carry or own is unconstitutional. States like TX and FL, not to mention IL, NY, NJ, MD, IL, and a few others are violating both, US and State constitutions.

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Old June 19, 2010, 04:28 PM   #63
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Originally Posted by knight0334
The People wrote the US Constitution forming a central government. That constitution then created a means to form states, which also guaranteed each new state a republican form of government.
That would have been news to the states that sent delegates to the constitutional convention in Philadelphia. It would also have been news to the states that ratified the new constitution.

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Ratification
Article VII of the Constitution and resolutions adopted by the convention on September 17, 1787, detailed a four-stage ratification process: (1) submission of the Constitution to the Confederation Congress, (2) transmission of the Constitution by Congress to the state legislatures, (3) election of delegates to conventions in each state to consider the Constitution, and (4) ratification by the conventions of at least nine of the thirteen states.
Also, Patrick Henry made relevant comments during the Virginia ratifying convention:

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I have the highest veneration of those Gentleman, -- but, Sir, give me leave to demand, what right had they to say, We, the People? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorized them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of the confederation. If the States be not the agents of this compact, it must be one of great consolidated National Government of the people of all the States.
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Old June 19, 2010, 04:48 PM   #64
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Originally Posted by knight0334
The People's power and rights came first, then we created the COTUS which formed the US of A, which allowed states to join.
Thirteen English colonies declared their independence and became independent states during the Revolutionary War (" The Declaration of Independence of the Thirteen Colonies, In CONGRESS, July 4, 1776 - The unanimous Declaration of the thirteen united States of America,"). Delegates from the states acted together in the Continental Congress during and after the Revolutionary War. The Articles of Confederation were adopted by the states in 1781. The current Constitution became effective when it was ratified by the ninth state in 1788.
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Old June 19, 2010, 07:38 PM   #65
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Thirteen English colonies declared their independence and became independent states during the Revolutionary War (" The Declaration of Independence of the Thirteen Colonies, In CONGRESS, July 4, 1776 - The unanimous Declaration of the thirteen united States of America,"). Delegates from the states acted together in the Continental Congress during and after the Revolutionary War. The Articles of Confederation were adopted by the states in 1781. The current Constitution became effective when it was ratified by the ninth state in 1788.


They may have been states prior under the Articles of Confederation, but there were not States of the United States under the Constitution until ratification. When each state joined, it did so in full recognition of the Constitution and under the authority of the Constitution. ...see what I'm getting at?

Vermont was a republic unto its own, same with Texas, they were not states of the constitutional United States of America until proper induction into the union. VA, PA, NY, etc, etc were states of the Articles of Confederation before the Constitution. It was impossible to be a COTUS State before COTUS was ratified.

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Old June 19, 2010, 11:43 PM   #66
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A lot of good discussion, and a lot of people here seem to know their history and the Constitution a lot better than I do.

However, I think there is a simpler solution....simply advance the notion that states have a right to abolish the right of free speech, the right of free press, and the right to vote, and see how quickly everybody from the right to the left slaps it down.

After that, no state would be able to abolish the 2nd Amendment either, right?
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Old June 20, 2010, 09:30 AM   #67
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Originally Posted by GM1967
However, I think there is a simpler solution....simply advance the notion that states have a right to abolish the right of free speech, the right of free press, and the right to vote, and see how quickly everybody from the right to the left slaps it down.
How about an even simpler solution....simply advance the notion that local legislators in every state deal with all matters of government except national defense, foreign relations, and restraints on interstate trade.
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Old June 20, 2010, 04:44 PM   #68
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How about an even simpler solution....simply advance the notion that local legislators in every state deal with all matters of government except national defense, foreign relations, and restraints on interstate trade.
Simple, because the state could simply decide you no longer have any protected rights, like say free speech, religion, RTKBA, etc.
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Old June 20, 2010, 06:47 PM   #69
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the state could simply decide you no longer have any protected rights, like say free speech, religion, RTKBA, etc.
I wonder what is meant by "the State" in this assertion ... if it means the State government e.g. that the Virginia Government would take away the rights of Virginians, I think our system of State government is all about preventing that ... Virginians could amend our Virginia constitution, vote out the despots, recall them, even run them out of town on a rail, what are they going to do, take over several million Virginians with the State police?

Or if the assertion that the state could take away our rights means that the people of Virginia would take away our own rights i.e.that the majority would take away their own rights, then I don't think that's likely ... I think Virginians might define our rights to be different than what somebody in another State fancies, but that doesn't mean we are taking away our rights.

But if we see the federal government as the bulwark of liberty, and they decide that Virginians no longer have rights, then that is a different matter, because they have the US military to take away our rights with ... and while people claim "that couldn't happen here", it has happened here before.

The Framers saw the States as the bulwarks of liberty. And they seem to have been right ... has any State been as despotic as the US? For example, has any State government proposed an amendment to a State Constitution, and when it failed, forced the people to vote for it at the point of a bayonet? [edit]Or has any governor increased the number of justices on a state supreme court in order to stack it with his appointees and take it over?

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Old June 20, 2010, 10:06 PM   #70
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Simple, because the state could simply decide you no longer have any protected rights, like say free speech, religion, RTKBA, etc.
Oh, I see; you mean the states could simply decide you no longer have any protected rights... just like the federal government could. Both the federal government and the 50 states have constitutions. Any of those constitutions can be changed with the vote of a large enough majority.

There are only two differences between trusting state governments or the federal government to protect your rights: the federal government will mandate absolute uniformity while the states could have diversity, and; you believe the people in your state or people across the country know more about what people in your state need.
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Old June 20, 2010, 11:36 PM   #71
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I think you read too much into my post.

Here is what I think:
Local, State, and Federal governments all have their place. I believe that basic rights should be uniformly protected. In this respect, I am extremely glad for the Bill of Rights and 14th Amendment. Should the federal government have sole authority? NO! There is a division of power and responsibility within our system of government for a reason.

I would love to trust local governments to make the right choices (same for the federal government). Since this is not always the case, I would like a baseline at the federal level, with options for more protection at local levels. Obviously, state and local governments cannot be trusted exclusively (see Chicago, Washington DC, MA, CA, etc). Yet, the federal government isn't always a reliable protector either.

Our society has defined the baseline of the RTKBA as the 2nd Amendment to the Constitution. Via the 14th, we should be able to establish that baseline against ALL levels of governmental intrusion. Having a "right" from the federal government does no good if the city denies it (and vice versa).
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Old June 21, 2010, 01:56 AM   #72
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The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights are declared to be natural, inherent, and unalienable. Atchison & N. R. Co. v. Baty, 6 Neb. 37, 40, 29 Am. Rep. 356.

By the "absolute rights" of individuals is meant those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. The rights of personal security, of personal liberty, and private property do not depend upon the Constitution for their existence. They existed before the Constitution was made, or the government was organized. These are what are termed the "absolute rights" of individuals, which belong to them independently of all government, and which all governments which derive their power from the consent of the governed were instituted to protect. People v. Berberrich (N. Y.) 20 Barb. 224, 229; McCartee v. Orphan Asylum Soc. (N. Y.) 9 Cow. 437, 511, 513, 18 Am. Dec. 516; People v. Toynbee (N. Y.) 2 Parker, Cr. R. 329, 369, 370 (quoting 1 Bl. Comm. 123).

Chancellor Kent (2 Kent, Comm. 1) defines the "absolute rights" of individuals as the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered and frequently declared by the people of this country to be natural, inherent, and inalienable, and it may be stated as a legal axiom [A principle that is not disputed; a maxim] that since the great laboring masses of our country have little or no property but their labor, and the free right to employ it to their own best interests and advantage, it must be considered that the constitutional inhibition against all invasion of property without due process of law was as fully intended to embrace and protect that property as any of the accumulations it may have gained. In re Jacobs (N. Y.) 33 Hun, 374, 378.
I think of the 2nd in this context. From what I remember the Bill of Rights are not rights given by the federal government, but stating that they are rights that you already have that cannot be denied. I do not see how it would not apply the the states as well.

Even so, the government doesnt always follow the rules.

http://www.unalienable.com/
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Old June 21, 2010, 07:24 AM   #73
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I may be wrong and often am, but, without looking it up, does not the 2nd Admendment actually mention in so many words, "well regulated" and thereby suggest that the government has the right and power to regulate? The 2nd Admendment (not part of the original constitution, for those of you for which that matters) does not say, "There shall be no regulations...".

Now, regarding Civil War generals, there was one Southern General who was from New York but his wife was from Virginia. He also knew Jefferson Davis, so it is hard to say where his loyalties were. My wife is from Virginia, too, and is a descendant of that general. I'm not descended from anybody.
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Old June 21, 2010, 08:34 AM   #74
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...does not the 2nd Admendment actually mention in so many words, "well regulated" and thereby suggest that the government has the right and power to regulate?
That would be a definition of the word by todays standards. It was also, to a large extent, a reasoning of the collectivists definition. A definition that was thoroughly trashed by the Heller decision.

Article I, Section 8 (powers of Confress), clause 14, provides the following: To make Rules for the Government and Regulation of the land and naval Forces;

Since the Constitution already provides for the power to govern and make regulations (for the militia), it would be redundant for the founding fathers to add another such clause, when writing about the rights of men.

The phrase, "well regulated" must by any logical thought process, mean something else. We can look to Webster's Revised Unabridged Dictionary, 1828 edition, and see the following:
REG''ULATED, pp. Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions.
What we see is that there are 2 other definitions of the word that proceed the meaning of regulation by law.

Whatever the meaning of the phrase, "well regulated," it can not mean regulated by law, when the context of the entire phrase is taken into account: A well regulated Militia, being necessary to the security of a free State...

A militia that is trained to arms and properly outfitted, best meets the definition of a well regulated militia, than a milita regulated by law but not properly trained or fitted.
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The 2nd Admendment (not part of the original constitution, for those of you for which that matters) does not say, "There shall be no regulations...".
It doesn't need to say any such thing. That os already covered in the powers of Congress.

What the amendment does say is that the right of the people shall not be infringed. That is, under no circumstances can the powers granted the federal government be construed to have granted the power to disarm the people, and thereby disarm the militia.

There was a fear that because the federal government had the power to arm the militia, by inaction the government could disarm the militia. Hence, part of the reasoning behind the 2A.
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Old June 21, 2010, 10:40 AM   #75
BlueTrain
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Some of the founding fathers, meaning those in attendence at the Constitutional Convention, were in favor of a "well-regulated militia" and a few did not sign the constitution itself because that and the other parts covered in the admendments were missing. Their concern, I believe, based on some things I've read written by George Mason of Virginia, was that the militia be subordinated to the laws of the state and that they were clearly not to be private armies. It is my fear that some today believe that, somehow, a militia consists of a body of armed men without regard to the government. That sounds too much like the threat of an insurrection or rebellion to me but then I'm conservative in these things.
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