Scope of 2nd Amendment's Questioned

[ArfinGreebly]

Regulated . . . again?

The two words that seem to cause the most stumbling are REGULATED and MILITIA.

1) In the language of the day, a MILITIA was all able-bodied men. In the language engendered by political correctness, today that would be able-bodied persons.

2) In the language of the day, REGULATED had the common meaning of DISCIPLINED, PRACTICED, or SKILLED.

It is therefore completely valid to write this as,
"A prepared citizenry well-practiced at arms being necessary to the security of a free State, the right of the people . . ."
or
"A prepared citizenry disciplined and skilled at arms being necessary to the security of a free State, the right of the people . . ."

In any case, as has been clearly remarked by such notables as the US Attorney, nowhere in the constitution is the word "right" used in any context other than those applying to individuals. The governments (State and Federal) are mentioned in the context of "power" and "authority" but never as having rights.

It's a right. Rights are only viable as a concept as being an attribute of an individual. There are, constitutionally, no "group" rights. If groups have rights, it is only as a consequence and extension of the individual right.

 

[Little-Acorn]

Its true that the 2nd Amendment applies to militia,

Ummm, sorry, but it doesn't.

Read what it actually says.

"...the right of the people to keep and bear arms shall not be infringed."

That's "the people", which means everybody. Even your 80-year old grandpa and your cousin's 6-month old baby, neither of whom are in any militia.

If they'd meant, "the right of the members of the militia to keep and bear arms...", they would have said so. But they didn't, did they?

 

[Malone LaVeigh]

I didn't even know the 2nd Amendment had a questioned.

 

[hugh damright]

I guess you'll have to ask them what they meant to ratify. Let me know what they say.

I believe I am able to understand what the States had in mind by looking at their requests for the Second Amendment, their ratification conventions where they discussed the matter, their own State Militia Amendments which existed at that time, by understanding what the King did which caused the States to make their Militia amendments, by embracing the US Judicial history on the matter, and that kind of thing.

But what they DID ratify, was the words of the Constitution and (later) its Bill of Rights.

They ratified the words as they understood them ... you still seem to be saying that the States ratified the words as you personally read them.

The US Constitution is a compact between the States. If it is up to you personally to define the compact, then that is some new kind of compact which I've never conceived of ... it kind of sounds like your personal dictate rather than a voluntary compact.

 

[Ivy Mike]

Little-Acorn, you might want to quote the entire 2nd Amendment before saying it does not apply to militia.

It says quite clearly that a militia is necessary to the security of a free state.

Now, I did in fact stretch the logic a bit with my earlier statement, but if one were to argue that the 2A only applies to militia, they would then have to deal with the definition of militia which covers a huge portion of the populace and wouldn't stand up to our current laws against discrimination.

 

[hugh damright]

That's "the people", which means everybody. Even your 80-year old grandpa and your cousin's 6-month old baby, neither of whom are in any militia.

I have read in the congressional record where they debate these things, and the way I remember it, if they mean to say "every person" then that is what they say, and it includes persons who are not citizens. If they mean to say "all Citizens", that that is what they say. And if they mean a general right, then they say "the people". I reckon your cousin's six-month old baby has rights, but the RKBA is not one of them.

 

[Little-Acorn]

Little-Acorn, you might want to quote the entire 2nd Amendment before saying it does not apply to militia.

It says quite clearly that a militia is necessary to the security of a free state.

The 2nd amendment does offer a reason why the RKBA cannot be infringed... but it doesn't make its ban contingent upon that reason.

Suppose the 2nd said instead:

"The moon being made of green cheese, the right of the people to keep and bear arms shall not be infringed."

Then in the 20th century, astronauts finally land on the moon and prove once and for all it is NOT made of green cheese. Would this mean that the 2nd now says it's OK to infringe the RKBA?

It doesn't. Even if the initial explanation is proven wrong, the second part of the amendment is NOT affected. That's English 101, folks. For those who believe otherwise, your grammar teacher is rolling over in her grave.

The phrase about a well-regulated militia has NO effect on the 2nd's ban on govts infringing the RKBA. Unless you flunked English 101. And even if you flunked, the Framers didn't, and the amendment is STILL an unconditional ban.

 

[Little-Acorn]

I believe I am able to understand what the States had in mind by looking at their requests for the Second Amendment, their ratification conventions where they discussed the matter, their own State Militia Amendments which existed at that time, by understanding what the King did which caused the States to make their Militia amendments, by embracing the US Judicial history on the matter, and that kind of thing.

None of which has any effect on the meaning of the words of the 2nd amendment.

They ratified the words as they understood them ...
you still seem to be saying that the States ratified the words as you personally read them.

No, I am saying that the states ratified the clear language of the 2nd and its meaning, which has not changed between that time and now. The language of the 2nd bans all government from infringing the RKBA, and offers a reason why it is doing so.

You seem to be bending over backward to invent new meanings that the words don't have and never did. Why are you doing that?

 

[LAR-15]

Who made up the people?

All able bodied white or free males that could carry and use firearms

(remember females and blacks were not considered fully human at that time)

Read the book 'Chronicles of Border Warfare' by Alexander Withers (written in 1831).

The settlers of Northwest Virginia in their wars against the indians and their French and British allies were routinely armed and shipped arms by government for their defense because the government could not do it themselves.

It was routine and expected for any able bodied male on the frontier to have arms and come to the defense of the local populace with them. They were not kept in some armory or block house for checkout (though in some instances extra powder and ammo was)

All of them made up the 'militia' of the areas of Virginia, Kentucky and Pennsylvania on the frontier.

Many of them were elected officers in the militia and given ranks of leiutenant, colonel and general among others.

 

[gc70]

The issue of the relation of the militia clause to the right to keep and bear arms clause is probably why SCOTUS has tried to stay away from Second Amendment cases for nearly a hundred years. Imagine the court's quandary in honestly examining the militia clause and NOT giving judicial recognition to the people's inherent right to rebel against unjust government. I just don't see the SCOTUS ever recognizing a right to rebellion. Maybe they can find a crafty way to turn the militia clause into some type of self-defense justification.

 

[Little-Acorn]

Maybe they can find a crafty way to turn the militia clause into some type of self-defense justification.

Maybe they can acknowledge that the militia clause has no effect on the amendment's ban on government infringing the RKBA.

Then they wouldn't even have to be crafty... just literate.

 

[hugh damright]

Maybe they can acknowledge that the militia clause has no effect on the amendment's ban on government infringing the RKBA.

The Second Amendment limits the FEDERAL government. It does not ban other governments from infringing on the RKBA.

 

[Little-Acorn]

The Second Amendment limits the FEDERAL government. It does not ban other governments from infringing on the RKBA.

Some people (most of the legal establishment, actually) say that the Bill of Rights (incl. the 2nd) was intended to restrict only the Fed govt, not the states or lower govts. That may be... but the people of the U.S. didn't ratify the Framers' intentions. They ratified the words printed on the paper that is the Constitution and (later) its Bill of Rights. Those words are what is now law, not the Framers' intentions, if there are any differences. If the Framers blew it by writing something other than what they intended, sorry. The text of the law must supersede what they intended. Only where the text of the law is unclear, should the Framers' original intent be considered.

And the 2nd amendment is very clear. Since an armed populace is necessary, the right to own and carry guns can't be taken away or restricted. Period. It doesn't say "Congress shall make no law", as the 1st amendment does - a phrase that restricts the 1st's effect to just the Federal govt. But the 2nd simply says the right to KBA can't be taken away. That means, by ANY government - Fed, state, or local. Including DC's govt.

My view probably isn't popular among certain lawyers. They'd rather find excuses to claim the Constitution doesn't mean what it says. I hold that it does mean what it says, and the parts I'm talking about do not have two possible meanings.

You seem to be bending over backward to invent new meanings that the words don't have and never did. Why are you doing that?

 

[Caimlas]

Is an "unorganized" militia the same thing as a "well regulated militia"? I wouldn't think so from surface analysis...

"Well regulated" doesn't refer to regulation as we know it today - ie, governmental oversight - but to the individual maintainance of arms. That is, a well regulated militia is one or more people who have maintained their firearms within operational parameters.

It would seem to me that all the laws out there which make such things more difficult - magazine restrictions, importation restictions, etc. - interfere with this.

 

[gc70]

Then they wouldn't even have to be crafty... just literate.

Since the opposition in any 2A case will try to tie the militia and RKBA clauses, they will both be considered by the courts. And court decisions will not be made on grammar alone, but also on precedent and original intent. Unfortunately, nearly everything I have read about contemporary intent discusses RKBA in terms of the militia. I suspect that personal defense was universally recognized at the time, to the extent that there was no need to even mention it and the discussion focused on the community defense aspects of RKBA.

 

[gc70]

You seem to be bending over backward to invent new meanings that the words don't have and never did. Why are you doing that?

Quite to the contrary; that seems to be your approach. The people who wrote the Constitution and Bill of Rights did not seem to have any problem understanding what they wrote within the context of a national constitution, nor have the courts, legislators, or legal scholars for over 200 years.

What makes you believe that your personal understanding of the words in the Constitution outweighs the collective judgment of the legions of knowledgeable people in the past and present who did not understand it as you do?

 

[Ivy Mike]

Little-Acorn

You missed my point. I understand that the right of the people doesn't refer to a militia. I was saying that even if you used their interpretation, you would still have to deal with the definition of militia which refers to a huge number of people and that such an argument is self-defeating.

 

[hugh damright]

You seem to be bending over backward to invent new meanings that the words don't have and never did. Why are you doing that?

I am not sure what you are referring to ... you seemed to emote a definition of "people" to mean every person, and insisted that a six-month old baby has the RKBA. As I alluded to, I am reading a book that contains all of the congressional debates on the reconstruction amendments, and I remember reading that when they mean every person they use the word "person". In other instances they use the word "Citizen". And in other instances they refer to "the people". They mean different things. The way I understand it, it is possible to infringe on the RKBA of a person without infringing on the RKBA of the people. For example, if a State passes legislation that denies six-month old babies the RKBA, that does not infringe on the Second Amendment or the right of the people to keep and bear arms.

I am not inventing new definitions, they are only new to you. They are actually quite old definitions.

 

[The Real Hawkeye]

The Second Amendment limits the FEDERAL government. It does not ban other governments from infringing on the RKBA.

Agreed, but it does acknowledge the right as belonging to the people. This part has no force of law (any more than the part about militias being necessary for State security, both of which are mere statements of undisputed facts, like "air is necessary for human beings to live"), but it is significant that this fact is acknowledged in the document. The only part, as you suggest, that does anything, legally, is that which prohibits the US Government from making laws which have the effect of infringing on the right of the people to keep and bear arms.

 

[Little-Acorn]

Hawkeye, what part of the 2nd amendment's text restricts its effect to the Fed govt and exempts the states?

 

[glummer]

hugh damright
High quality barrels being necessary for the construction of miltia riflles, the right of the people to make and use steel shall not be infringed.
Do you interpret that to mean the government could outlaw steel for ALL other uses but militia rifles, without infringing the stated right?

 

[The Real Hawkeye]

Hawkeye, what part of the 2nd amendment's text restricts its effect to the Fed govt and exempts the states?

The Second Amendment is an amendment to the US Constitution. The US Constitution, except where otherwise specified, empowers and restrains only the government which it forms, i.e., the US Government. In order for any provision of the US Constitution, therefore, to restrain the States, the text would have to actually state as much, e.g., "...the right of the people to keep and bear arms shall not be infringed, and Congress shall have authority to enforce this also against the States." We can be certain they understood the necessity of this kind of language becuase elsewhere we find things like, "The United States shall guarantee to every State in the Union a Republican Form of Government," instead of, for example, "The people's right to a Republican Form of Government shall not be infringed," the latter of which, by long standing rules of legal construction, would restrain only the US Government.

 

[hugh damright]

"High quality barrels being necessary for the construction of miltia riflles, the right of the people to make and use steel shall not be infringed."

Do you interpret that to mean the government could outlaw steel for ALL other uses but militia rifles, without infringing the stated right?

If it was an amendment in the USBOR, then I think it would be a declaration that the US has no power to deprive the nation of steel used to make rifle barrels. Regardless of the amendment, I do not believe that the US is delegated jurisdiction over steel, so I do not believe they could ban it for other uses either (not because of the amendment but regardless of it).

I don't know what history or purpose you envision for your amendment, but I can't imagine that people would just up and declare at random the right to work steel, and then list the right to make gun barrels as an example. If there was such an amendment about rifle barrels and steel, I assume that it would have originated in response to the King trying to disarm the Colonies by confiscating steel used to make rifle barrels, and I assume that is what the amendment would regard.

 

[thexrayboy]

I think in the context of 2A that the term "well regulated" is not a reference to laws controlling and describing who can and cannot have arms etc.

The term "well regulated" has a meaning more consistent with "capable of proper function and performance" .

The same term would apply to a device such as a clock. A "well regulated" clock would be one that performed correctly, meaning it keeps proper time, is accurate, it functions as designed and intended.

So a "well regulated" militia is one that is capable of performing it's intended function efficiently, to do so would necessitate it being properly armed.

 

[ArfinGreebly]

In reading over these latest posts . . .

. . . I note a tendency to either skim the prior posts, or ignore those posts that aren't involved in some personal sub-conversation.

May I suggest a reading of post #26?

May I further suggest a reading of a) actual dictionary definitions that cover this, and b) opinions of, e.g., the US Attorney from 2004 that make it clear that "right" is only used in individual contexts, while state contexts use the terms "power" and "authority."

I see extensive exercise of "reasonableness" in attempting to contort the meanings of phrases into Humpty-Dumpty's "mean exactly what I want them to mean" interpretations.

Understand this: Lawyers make their living by inventing creative interpretations of plain English to mean things very different from the original intent. It's dishonest. The fact that they can be persuasive doesn't make it any more honest or true.

The concept of "right" is individual. Only. Period.

And straight-faced assertions that "well, it's in a zip code near another word that we can pretend is related" are the device of people who mean to wreak conceptual violence on the original intent.

Knock it off. Don't play the socialists' game.

The original meaning stands. The constitution is NOT an "evolving" document. It's a foundation.

The RKBA belongs to individuals, severally, not "groups" or "organizations" of people.