"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"
Why is "A well regulated Militia, being necessary to the security of a free State" used so heavily to deny peoples rights? I don't see where it says the people have to be a part of this militia to keep and bear arms, its just a factual statement. Am I misunderstanding olde tyme sentence structure, or is the first part just as easily omitted as if it were to read "the sky is blue, the right of the people to keep and bear arms, shall not be infringed." Please school me on this.
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July 18, 2004, 11:55 PM
Well Regulated = "Skilled"
the “General Principles of Constitutional Law” by Thomas Cooley, who was born in 1820. Said Cooley, “The right of self defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible.”
"...The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon...If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet in voluntary discipline in arms, observing in so doing the laws of public order.”
William W. Rawle, A View of the Constitution 125 (2d ed. 1829). was the author of "A View of the Constitution of the United States of America." His work was adopted as a constitutional law textbook at West Point. He is quoted by Stephen P. Halbrook in "That Every Man Be Armed: The Evolution of a Consitutional Right" as follows."In the Second Article, it is declared that a well regulated militia is necessary to the security of a free state: a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable, yet ... the militia form the palladium of the country .... The corollary from the first position is, that the right of the people to keep and bear arms shall not be infringed. THE PROHIBITION IS GENERAL. NO clause in the Constitution could by any rule of construction be conceived to give Congress a right to DISARM THE PEOPLE." Such a flagitious attempt could only be made under some general pretence by a state legislature. But, if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
When discussing the meaning of the Constitution, Thomas Jefferson gave this advice:
“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debate, and instead of trying what meaning may be squeezed out of the text, or invested against it, conform to the probable one in which it was passed.” [Letter to Justice William Johnson, June 12, 1821]
William Grayson of Virginia wrote to Patrick Henry, “...a string of amendments were presented to the lower House; these altogether respected personal liberty.” June, 1789.
Tench Cox, a friend of Madison’s wrote the following glowing report of the Second Amendment, “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” Philadelphia Federal Gazette, June 18, 1789. Madison later read these words and wrote back to Cox, “...the printed remarks I already find in the gazettes here...be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the cooperation of your pen.”
Cox again:“The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon regular troops, and will generally be sufficient to over-awe them. Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
Richard Henry Lee, who called for and signed the Declaration of Independence: “A militia, when properly formed are in fact the people themselves...and include all men capable of bearing arms...To preserve liberty it is essential that the whole body of people always possess arms...The mind that aims at a select militia, must be influenced by a truly anti-republican principle.” Federal Farmer, 1788.
Noah Webster, Pennsylvania: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense raised in the United States...”
“Leading Principles of the Federal Constitution, Philadelphia,” 1787.
Alexander Hamilton– in Federalist #28: "If the representatives of the people betray their
constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state." And in Federalist #29: “If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens.”
Elbridge Gerry, of Massachusetts, signer of the Declaration of Independence: “What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty...
Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins.” Debate, U.S. House of Representatives, August 17, 1789.
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."
Albert Gallatin of the New York Historical Society, October 7, 1789.
St. George Tucker from the appendix of Blackstone's Commentaries on the Laws of England (1803), "The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people;..." "If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act."
July 19, 2004, 12:05 AM
One thing to consider, the meaning of words in the English language has a tendancy to change over time.
For instance, when Shakespeare talked about "first thing we'll do is kill all the lawyers" in one of his plays, he wasnt referring to attorneys, who we call lawyers nowadays. He was referring to legislators. If he'd meant attorneys/lawyers, I think the word he'd have used is 'ballisters' or something. I dont remember exactly. Magistrates, perhaps? Bah, someone on here will be able to fill in that particular tidbit.
Anyway, in the case of the 2nd Amendment, 'regulated' doesnt mean the same thing as when we think of the word regulated today, i.e., bogged down in useless .gov requirements, rules, procedures, etc. The best translation I could give for 'regulated' in the 2nd is 'equipped'.
What they're basically saying is that "Since a well-equipped militia is necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed".
But, as with anything else, when liberal communist-socialists get their dirty little paws on it, they try to pervert it. In this case, they try to make it seem like the 2nd actually reads something closer to "The National Guard of each State shall be allowed to possess and train with firearms", or something like that.
And its not just the 2nd that they've done that too, either. They also managed to change the 1st so that instead of reading "Congress shall make no law...", it should say "Congress shall make no law unless it deals with assigning extra penalties when a white heterosexual uses a word like f*g, n1gger, or wetback; or desecrating national symbols without any kind of spoken or written word; or banning a song/artist who sings about things that enough people find objectionable; or if the words in question might make someone incapable of self-control attack the speaker". Or something like that. The things I am referring to in this example are 'hate' crime laws, burning the flag WITHOUT actually saying anything, or having a sign, placard, whatever whilst you do so, 'fightin words', and Ice-T's song "Cop Killer". FWIW, I dont agree with someone burning the flag, and would probably knock them out if they did so in my vicinity, but if they actually are saying something, then that IS free speech. Objectionable speech, yes, but still speech. Its when they DONT say anything, just burn a flag because they can, that I think they are no longer covered under the 1st.
Then there are such wonderful things as police roadblocks and no-knock warrants.
And I dont think its really necessary to go any further with how the rest of the Bill of Rights has been re-interpreted to mean whatever the Party wants it to mean. The point has been made, neh?
July 19, 2004, 12:09 AM
Yeah, he probably did a better job of explaining it than I did.
July 19, 2004, 01:46 AM
"For instance, when Shakespeare talked about "first thing we'll do is kill all the lawyers" in one of his plays, he wasnt referring to attorneys, who we call lawyers nowadays. He was referring to legislators."
Sorry, but that's incorrect.
Lawyer, from the French Lauier, was well established by Elizabethan times as a term for a person whose profession was to plead cases in front of judges in the courts.
You're thinking of the term "barrister," which is also a Middle English term for a member of the legal profession who can plead before the superior courts, as opposed to a solicitor, who can only plead before the lower courts.
There's a lot of debate over whether or not Dick the Butcher was being complimentary to lawyers, or panning them.
In other plays, Shakespear uses the term lawyer in a way that we can recognize today.
In King Lear, Shakespear refers to the "unfee'd lawyer," clearly a reference to someone who is paid (or not) for rendering legal service -- not a member of parliament.
And, finally, from Hamlet...
"There's another: why may not that be the skull of a lawyer? Where be his quiddits now, his quillets, his cases, his tenures, and his tricks?"
July 19, 2004, 01:54 AM
Even if they had written it "All individuals have the right to own whatever weapons they choose, without needing the permission of any one in any government agency. "
The antis would still find a way to twist it.
July 19, 2004, 08:45 AM
For reasons unknown to me, the preamble to the Bill of Rights is not always included in reproductions of the Constitution and BOR. In the local post office it is.
The preamble states the purpose of the BOR: To prevent abuse of power by the State.
So, if the BOR is a package of restraints against the state, how can it also be restraining of the citizenry?
So, rather than worrying about word definitions or the location of commas and any effects they have upon the meanings of the clauses, I choose to ask the anti-gun crowd as to the purpose of ALL the Amendments. I ask how only one of them can somehow be taken from the context of the total package and be seen as restraining you and me and others as to a right.
July 19, 2004, 09:37 AM
I stand corrected.
July 19, 2004, 10:36 AM
The answer to Art Eatman is that the bill of rights and later amendments are never supposed to create restrictions for the people. They are there to define the limits of the government and to protect the people. The BOR protect the people from the government and even the will of the majority.
There was one amendment that restricted the people and there has only been one amendment to be nullified—the 18th. The use of constitutional amendments to make it possible to prohibit the people is completely inappropriate. Ignoring the BOR, and later amendments, and passing legislation that contradicts them is also completely inappropriate. However, in the end, even if something shouldn’t be done, is supposed to be illegal to do, but is done and nobody stops it, well then I guess we’ve endorsed it in a way. By standing by and watching the AWB ban go into effect and just waiting for it to sunset we’ve legitimized what it was and we’ll have a less credible argument the next time there are enough anti-gun legislators who want to pass gun restrictions.
July 19, 2004, 10:46 AM
I've never gotten an answer to this question when I post it to the antis.
If the 2A protects the right of the state to have a militia (ie, National Guard), how, exactly could the Fed.gov violate the 2A.
What if they decided to cut funding in half for the NG? Would that be a violation?
What if the fed.gov decided to ship a state's NG out of state for several months so that that state would essentially be denied the protection of its NG?
Perpich v US (the governor sued the DoD because its NG was sent to Central America for training), says such is not a violation.
So, what is it?
July 19, 2004, 12:14 PM
If the 2A protects the right of the state to have a militia (ie, National Guard), how, exactly could the Fed.gov violate the 2A. King George III, fearing that war with the colonies was imminent, started a campaign of disarmament by confiscating the arms and ammunition stored in the armories.
The states wanted assurance that the new federal government would not do to the states what the king tried to do to the colonies. The Second Amendment, like the other amendments of the Bill of Rights, was created to address this specific grievance.
July 19, 2004, 01:21 PM
I'm rather surprised that no one has mentioned Title 10, section 311, to the US Code, which establishes the National Guard as a separate military entity. The National Guard is established under Title 32, USC.
July 19, 2004, 02:19 PM
You also need to remember that there's no such thing as a "collective right," only individual rights.
The 9th amendment also lends support to the 2nd.
July 19, 2004, 06:17 PM
Why is "A well regulated Militia, being necessary to the security of a free State" used so heavily to deny peoples rights?
Because leftist extremists have a legal right to say whatever they'd like, even if it's patently false and completely stupid and ludicrously at odds with American law. They'll eviscerate the First Amendment after they're done with the Second.
July 19, 2004, 06:29 PM
Also, if you look at the wording, the right is existing already, and the Second is saying that the right shall not be infringed. There is a court case which I cannot recall off of the top of my head, that states that the right to keep and bear arms is not granted by the Second Amendment, nor is it in any way dependent upon the Second Amendment for its (the right to keep and bear arms) existence.
If the right didn't previously exist in the minds of the creators of the BOR, they would have said something more to the effect of;
"A well regulated militia, being necessary to a free state, the people shall have a right to keep and bear arms, and that right shall not be infringed".
Instead, the founders merely stated that the right of the people to keep and bear arms, shall not be infringed, implying that the right was already there, as in a natural, God given, unalienable right.
The anti gunners will not accept this fact it seems, even when pointed out in court cases. Instead, they cling to US vs. Miller and the fact that the USSC in that case stated that since the Second Amendment mentions the militia, it must be looked at with the militia in mind. However, that would seem to indicate that any arms which are suitable for service in the militia, would be necessarily protected by the Second Amendment. Then the antis will bait and switch to the old statement, "Well, the National Guard has now replaced the need for a militia, so the Second amendment pertains to the National Guard".
Very sinister the Dark Side is.
July 19, 2004, 08:36 PM
It seems self explanitory to me , the people means the people . It doesn't say the people in the militia , national gaurd , people that are LEO's etc. , it says THE PEOPLE . Keep and bear , means keep and bear , it doesn't specify when , where , how or why . Shall not be infringed , if you don't understand this part look up "infringe" in the dictionary . As for the first part of the sentence , the second part makes it a moot point .
Don't Tread On Me
July 19, 2004, 08:50 PM
"A well regulated militia, being necessary to the security of a free state"
Think of this part as a "preamble" -- it sets up the Right as in why we have it - not HOW we should use it.
It gives the idea. It can be translated perfectly like this:
"A well prepared people, is necessary for securing the community/society" therefore "the right of the people to..."
This is pretty much what they *mean* by it.
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