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Old September 28, 2012, 03:02 AM   #1
Apom
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2nd amendement modification?

"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."

Everyone keeps stating they have the right etc etc..but haven't met many or any if at all that are part of a well regulated militia. If you are in the military obviously you are given the right to carry. If you are part of your state's reserves I'm assuming you get the right to carry..

But I'm missing the part of where the milita was edited out and now includes everyone. I dont have a problem with people carrying as long as they are qualified, tested, and checked.. But how are people determining they have the right?
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Old September 28, 2012, 03:24 AM   #2
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Quote:
.but haven't met many or any if at all that are part of a well regulated militia.
Well Regulated: trained/armed (regulated does not mean controlled by rules)

Militia: http://www.law.cornell.edu/uscode/text/10/311
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Old September 28, 2012, 03:31 AM   #3
Apom
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So after 45 no more firearms??? =(
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Old September 28, 2012, 04:30 AM   #4
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The "militia" was able bodied males capable of bearing arms who were responsible for providing their own basic gear.
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Old September 28, 2012, 05:09 AM   #5
HiBC
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I believe militia implies you are not employed by the government.They are by definition Civilian.No military connection required.It does NOT say "well regulated Army"

Another important thought,the "well regulated militia being necessary for the security of the free state" is a rationale.It is not the statement,it is not the point.


"The right of the PEOPLE (not militia,not under 45,people! Includes women!)

"The right of the People to Keep and Bear Arms(not vague at all.Have them at home,pick them up,hold them)....Now,check this out,seems quite powerfully clear: "Shall Not Be Infringed".

So,what is the problem?It says what it says.
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Old September 28, 2012, 05:50 AM   #6
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Quote:
I dont have a problem with people carrying as long as they are qualified, tested, and checked..
Then you better stay out of Vermont (and a lot of other places), because no one asks permission here, or gets "tested" to your satisfaction...
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Old September 28, 2012, 06:02 AM   #7
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Only the true, real, and greatest Americans believe in our rights to bear arms. The rest of the people are just letting the government take from you! I pay taxes! I am a law abiding citizen and if I wanna gun I have that right to protect myself and my state! I mean if it ever where a SHTF situation the Constitution is saying grab your guns and neighbors; load up, and now ya gotta militia!
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Old September 28, 2012, 06:24 AM   #8
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To your comment, if one is a part of the military or reserves, it doesn't automatically gives the person the right to carry in private life. Also, by your definition, one's right to arms ends at whatever the upper age limit is.

Regarding milita - YOU are the milita, therefore YOU have the right to have arms, weapons, guns...whatever to defend/fight against whatever is necessary for the country. (note: broad brush definition - one can research this themselves on the Interweb)
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Old September 28, 2012, 07:09 AM   #9
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Quote:
Originally Posted by Apom
. . . . I dont have a problem with people carrying as long as they are qualified, tested, and checked. . . . .
By who? Who, exactly, do you suggest gets to decide who has or does not have this particular fundamental, individual right?

As for the rest, the 2A refers to the right of THE PEOPLE to keep and bear arms, not THE RIGHT OF THE PEOPLE IN THE MILITIAS.
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Old September 28, 2012, 07:17 AM   #10
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I hesitate to get into this again because I've stated my views plainly on the subject. But nevertheless, it is clearly subject to government authority. Not only were those who came up with that short amendment fearful of the army, they also clearly did not want armed bodies that were not subject to government authority. Federal laws were passed not long after specifying some of the details of militia service.

The militia were actually embodied on several occasions in the early days of the United States. Sometimes they did all right, other times, not so well. It was the fact that the militia really couldn't stand up to a trained army and sometimes not even to the Indians, that they decided that having a regular army wasn't such a bad idea after all.

You may note that the National Guard in some states was still being referred to as the state militia well past WWI. You are all free to join the National Guard if you are qualified. The original notion of the militia hardly included everyone, by the way, and you probably wouldn't want everyone in today, either. In any event, personal self-defence was not the point of the militia as described in the 2nd amendment. I seriously doubt that the idea of women carrying pistols ever entered their heads when the amendments were being considered.

Of course, I believe many of you don't like any form of control over one's actions whatsoever and I can understand that.
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Old September 28, 2012, 07:28 AM   #11
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According to the Supreme Court, in DC v. Heller:

Quote:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

(...)

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
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Old September 28, 2012, 08:05 AM   #12
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And once again, is our Constitution a beautiful thing or what? I keep wondering how those guys could be so brilliant to create something like this that is still a corner stone guiding our country over 200 years later. Even despite all the changes in the world that no one could envision. Pretty cool when you think about it.
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Old September 28, 2012, 08:30 AM   #13
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"And once again, is our Constitution a beautiful thing or what? I keep wondering how those guys could be so brilliant to create something like this that is still a corner stone guiding our country over 200 years later. Even despite all the changes in the world that no one could envision. Pretty cool when you think about it."

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Old September 28, 2012, 08:33 AM   #14
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To whatever extent that I agree or disagree with the Heller decision, I have no argument with this:
Quote:
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
The prefatory clause (or preamble) merely states a singular purpose, it in no way states the entire purpose (or any other reasons) for the amendment.

This is no different in using the prefatory clause of the Bill of Rights: That they are further restrictions and declaratory statements to restrict the Federal Government.

This seems to get lost in these arguments, however.
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Old September 28, 2012, 09:48 AM   #15
berettaprofessor
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What Tom Servo and HiBC said; the militia statement is a prefatory clause that doesn't change the absolute meaning of the operative. Plus, the other amendments are all individual rights, making it hard to understand why the intention of only one amendment would be to argue for a collective right.

Read Heller closely. And stop trolling.
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Old September 28, 2012, 12:06 PM   #16
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What do you mean by trolling? Having a different opinion?
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Old September 28, 2012, 01:34 PM   #17
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The backstory also involves the words "arms", "keep" and "bear".

These words are terms of legal art which existed in law predating the broad use of firearms and the Constitution by a couple of centuries, and which dealt with the human right of self-defense of an indvidual against predation, small (local thugs) or large (government tyranny).

The Founders knew this, and knew that any other rights enumerated by the Bill were only so good as the ability to effective self-defense. When and if firearms are obsolete, whatever replaces them at the individual level will be "arms" and the 2A will be as vital and fundamental to individual freedom as it ever has been.

I dislike framing the debate over 2A as "gun rights" as it IMO is the right to self-defense (by any "arm" necessary and proper for that task). An individual, to have access to arms, has to be able to "keep" them, and to have arms available when trouble finds the person, must be able to "bear" them.

Hence"...the right to keep and bear arms shall not be infringed.".
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Old September 28, 2012, 02:52 PM   #18
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BlueTrain, while you have argued your point many a time, I don't recall you having ever addressed why you think only one amendment in the Bill of Rights would be collective vs individual.

Do you have anything to say about that, aside from your usual fallback on the prefatory clause?
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Old September 28, 2012, 03:08 PM   #19
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I don't claim it's a collective right. You became a member of the militia as an individual and for that matter, being a member of the militia was not a right; it was an obligation, though not everyone had that obligation. Even now one is obliged to register for the draft but in the same way, not everyone has that obligation (at least, I don't think so). And when you go into the armed forces, you go in as yourself, as an individual.

I will admit it's no longer the popular view of the subject, including being obligated to serve.
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Old September 28, 2012, 03:19 PM   #20
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So your argument is it is an individual right, but only to members of a collective class?

Huh, that also conflicts with all the other individual rights...
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Old September 28, 2012, 04:59 PM   #21
HiBC
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Another way of explaining it.In modern times,we have the DCM and CMP as examples.It us beneficial to have a population of the PEOPLE skilled with arms in case the security of the free state has the "drop the hoe and grab the rifle" need.

A competent militia is drawn from a population of THE PEOPLE who keep and bear arms.

George Washington had to get help from Von Steuben,Von Steuben's Regulations.

I'm not a legal scholar,but I look at a "well regulated"set of duelling pistols,"regulating" the barrels of a double rifle,and "regulating" the .50 cal guns on a P-51 Mustang,or "regulating "the guns of an artillery battery to find a meaning in context with ARMS rather than the agenda of a government increasing its power.

And,while I'm sure legal scholars would dismiss me,I read "free state"as a state of being.

A well regulated militia being necessary for a state of being free.

It might be reasonable to consider the founders were writing a document to preserve the state of being free,and they clearly were not writing a document to give the State power over the People.
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Old September 28, 2012, 05:37 PM   #22
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The idea that the Government needs to be 'protected' by the Government is repugnant, and is a specious claim.

Rights are enjoyed by people.
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Old September 28, 2012, 05:38 PM   #23
HiBC
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To those who believe the 2nd is about the militia,and the def of militial is "able bodied men betyween the ages of"

I invite you to explain to PAX that,because she is not a man,the Right to Keep and Bear Arms does not apply to her.

And the spirit of the 2nd amendment does not include the INDIVIDUAL CITIZEN's (man or woman) right to defend themself with arms.

That,once and for all,ought to put and end to this "militia"' arguement
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Old September 28, 2012, 06:33 PM   #24
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I'm convinced that we have an almost entirely different perspective on the COTUS than did the founders.

Consider that until at least the Civil War, most people identified themselves primarily as citizens of their STATE, not The United States. They were "Virginians" not "Americans".

The founders likewise identified themselves by state rather than nation and intended to form a national government that would protect the states as a whole, "oversee" the relationship between the states and maintain relations with foreign powers.

The states had (or would create) their own constitutions. The COTUS did not and was never meant to be applied to the states. Consider that a number of states actually had official states religions, which were not challenged by the founders as in some sort of modern "incorporation" idea. Official state religions were not (and are not) violations of the COTUS because the COTUS does not apply to the states.

Consider also that many states have their own "2A" (as well as duplicates of virtually every other right) in their own constitutions. Why would this be if the COTUS applied to the states? It doesn't make sense.

At the time of the founding, the people were in control of their states. The state governments were small and more trusted, the founders didn't fear the states. They feared the overseer. The people took care of the states, and took care to write their constitutions to address whatever fears they likewise had about the powers thereof.

The COTUS was written to protect the STATES (the "people" as a whole) from the NATIONAL government.

The prefatory clause to the 2A, I believe, is tied to the reason why the NATIONAL government would want to disarm the people. The national government really wouldn't have any other reason to disarm the people, except to fear their militias.

Therefore, the prefatory clause isn't the reason why the people HAVE the right, it is the reason why the government might want to REMOVE that right.

The essential meaning is:

Since having a well regulated militia protects the people from the government, the right of the people to keep and bear arms shall not be infringed, lest they lose the ability to protect themselves.

I believe that other uses of those arms, such as individual self-protection, are completely unaddressed and rightly so. They are issues of basic choices of daily life. They aren't mentioned, I believe, because the founders never considered that we would so lose control of our government, that we would so lose sight of it's purpose and allow it so much power, that it would even be conceivable that the NATIONAL level government would ever be concerned with such trivial, daily life choices of individual citizens.
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Old September 28, 2012, 08:03 PM   #25
Aguila Blanca
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Quote:
Originally Posted by Spats McGee
As for the rest, the 2A refers to the right of THE PEOPLE to keep and bear arms, not THE RIGHT OF THE PEOPLE IN THE MILITIAS.
The 2nd Amendment also does not say that "... the right of those People whom Apom has deemed qualified to keep and bear arms shall not be infringed."

Quote:
Originally Posted by BlueTrain
The original notion of the militia hardly included everyone, by the way, and you probably wouldn't want everyone in today, either.
But the militia exists today under Federal law, and as written it includes all gang bangers between the ages of 17 and 45 who have not been convicted of a felony. The militia is NOT the National Guard. The NG is one component of the militia, but it is not THE militia.

The current version of the Militia Act is found at 10 USC 311:

Quote:
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

Sec. 311. Militia: composition and classes

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

(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the Naval Militia.

Last edited by Aguila Blanca; September 28, 2012 at 08:13 PM.
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