Second Amendment, Militia, (comma) vs Militia

[legaleagle_45]

I agree. However i also believe that the founders took what they saw in common law and changed to meet their own requirements. Certainly the RBA in the english BoR was no where near what is in the 2A. Yes we can see a process and must not be ignored.

Certainly, the 2nd is more expansive that the English version, yet not more expansive than you might imagine. For example, at the time, protestants represented about 95% of the population in England. Protestants were explicitly mentioned primarily because the Game Acts were used specifically to disarm them. While Catholics were thereafter excluded from service in the militia, there was no active effort to take away their private arms.

I believe there is a right to self defence within the BoR, i just don't think it comes specifically from the 2A.

I think it is there by virtue of the "keep" right. Blackstone thought that the English BoR included an individual self defense right in addition to a militia right or as he termed them:

the natural right of resistance and self-preservation

Now take a look at the cases decided under a reformulated Game Act after the adoption of the English BoR's:

[The Act]“not extend to prohibit a man from keeping a gun for his necessary defence.” Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739); “[T]he mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family". Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744); “A gun may be kept for the defense of a man’s house". Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The
King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) and Rex v. Hartley, II Chitty 1178, 1183 (1782).

The perceived "militia only" or "militia primarily" focus, is based, I believe, upon the debates in the Virginia Ratification Convention. Virginia took the Constitution section by section and debated same. The quotes oft times attributed to gun rights appears during the debates over Article I, Sec 8, clauses 15 and 16... which are the provisions directly related to the militia. Of course, those debates related primarily to the militia and the use of those quotes tend to emphasize the importance of the militia when it comes to gun rights. The Virginia Ratifying Convention did not directly address the contents of the Bill of Rights. The convention assigned to a committee the duty of developing a Bill of Rights and there is very little debate on those provisions which the Commitee proposed. Now with that as a background, consider the results of the Virginia Ratifying Convention. They proposed two seperate sets of amendments, the first was:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following.....17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. ...19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead. "

The second set of amendments dealt with amendments to the Constitution itself... to deal with perceived flaws in the intrument and was described as follows:

AMENDMENTS TO THE CONSTITUTION. ....."11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.

http://www.constitution.org/rc/rat_va_23.htm

So basically, what you had was a debate over the militia clauses which resulted in a proposed amendment specifically allowing the states to arm same, but in the course of that debate, the individual right was discussed as an aside. The proposal which developed into the 2nd Amend, on the other hand, was developed by a committee and there is very little discussion about the parameters of the individual right.

The obligation is one similar to jury service.

Change that to "The right is one similar to jury service" and we are there. (For "bear arms" but not "keep arms").

Enough for now.....

 

[woof]

What kind of guns are and are not protected by 2A is precisely what remains to be determined after the court rules that there is an individual right. I don't think any rpgs will be legalized. And no jurisdiction will be able to ban a whole class like handguns. I also get nervous when the I wanna nuke people come out. I've had people tell me that it should be totally legal to set up a tripod and sniper rifle across the street from an elementary school and scope the kids on the playground. And the argument that "the people" must have the same weapons as the army so "the people" can overthrow the army. Crazy.

 

[mr.72]

woof, the argument that "the people" must have the same weapons as the army so "the people" can overthrow the government is precisely the point. It's far from crazy.

The RKBA as a counterbalance to the tyranny of the State is useless if "the people" are denied the same weapons as the State. In fact if you read the founding fathers writings on this topic it is very clear that they intended the standing army to always and forever to obviously outnumbered and outgunned by the civilian "militia"...

I wrote a blog entry on this topic some time ago but I can't seem to find it now...

 

[woof]

OK who is "the people?" That people's militia over there or this one over here? You think all these armed people would just fall in line behind one cause and a set of leaders? I'm afraid what you'd have is armed mobs running around fighting each other. Would there stop being a political left and right, or white and black or rich and poor? There would be just as many forces pulling society into factions as there are now. Government is one way of keeping all that in some kind of order. Go overthrowing the government and you get chaos. besides its all academic unless we have f16s in our back yards.

 

[H088]

So Woof, you are for taking power away from the citizen and giving more to the people in Washington?

 

[Gunsby_Blazen]

The courts either don't know what the Second means and portrays it as only a relating hunting and personal protection or they just want to hide its true meaning from the people as to protect the governments encroachment of liberty.

Somehow I really that think they understand what the true context of the Second Amendment is. It is sad to think that perhaps it will never be acknowledged. As a historian, I think that is what bothers me the most; covering up history (the truth). That is something the Nazis or the Soviets would pull. Our country shouldn't stoop to that level. I don't want to be ashamed. I just would like for everyone to understand our history and have an understanding of what our country was originally designed as.

 

[ctdonath]

I don't think any rpgs will be legalized. And no jurisdiction will be able to ban a whole class like handguns.

So ... which is it?
Can't have a categorical ban if you disallow categorical bans.

 

[woof]

I don't the class rpg is comparable to the class handgun. The legislative future will be about endless efforts to very specifically define what is in and what is out.

 

[H088]

I don't the class rpg is comparable to the class handgun. The legislative future will be about endless efforts to very specifically define what is in and what is out.

lol so we will get more useless laws on things like flash hiders and folding stocks?

 

[mr.72]

"the people" is very simple. citizens. those not part of the government. I thought that was pretty easy to figure out.

if the gov't has nuclear weapons, stealth bombers, tanks, submarines, etc. then there is no reason for "the people" to be denied access to the very same arms in order to prevent tyranny. unfortunately, since "the people" have not kept pace and defended their rights consistently for the past 200 years, we have exactly such a tyranny.

you say when you overthrow the government you get chaos. well when the Patriot founders of this country overthrew the government, we got the United States of America.

 

[woof]

Can anyone really doubt there will be more laws on flash suppressors and folding stocks and such? And when the founders overthrew British rule, they did it with an elected congress and an army that answered to it. What happens when my group who considers ourselves the peoples army comes into your neighborhood to tell you what you need to be doing? Last man standing gets to attack the government by himself?

 

[ctdonath]

I don't {think} the class rpg is comparable to the class handgun.

So? They're both "arms". DC argues that the class handgun is somehow more special/dangerous than other classes - what makes their claim more or less valid? In the DC counsel's paraphrased words, "a handgun can be pocketed and taken anywhere secretly, and used anywhere anytime, while long/large arms are far less usable in such dangerous ways." There's lots of illegal handguns abused in this country, but when's the last time you heard of an RPG being used? seems to me that historically & practically & statistically speaking, RPGs are practically harmless.

Why should your whim trump my rights? especially when you cannot enunciate a "strict scrutiny" difference between one arbitrary category and another?

 

[H088]

There will only be more laws if people allow more laws to occur. Banning a "folding stock" is pointless, banning any gun is pointless.

I still don't see how you can support more goverment control on this issue, its absurd.

 

[woof]

I don't support more government control. You can't have an rpg or a nuke today, you can't scope kids on a playground today, and I want to keep it that way.

 

[H088]

Owning a atomic weapon costs allot of money, its hardly something anyone could just buy.

Legalizing the ownership of SMGs has nothing to do with allowing somone to scope kids in a playground.

 

[woof]

Let's see, who could afford a nuke that I definitely would not want having it? How about George Soros for example?

 

[legaleagle_45]

So? They're both "arms".

Not necessarily.

 

[hugh damright]

The way I understand it, a free State has a popular government, and that is what the Second Amendment is intended to secure. Whereas a standing army might result in minority rule, a militia composed of the body of people might ensure "majority rule". IIRC, the requests for the Second Amendment all ended by saying something like "in all cases the military power must be subordinate to the civil power". I really don't see how we can begin with the principle that a standing army is a danger because it could turn against the civil power, and conclude that individuals with nukes secure free government. It seems to me that the idea of individuals with nukes is antithetical to the Second Amendment, because such weapons would not be controlled by the civil power and could be turned against the people.

In a free State the people have a right to use force if necessary to bend government to their will. It is a right of the people, not a right of the person. It is a collective right. Individuals with nukes would not secure free government, they would threaten it.

 

[yokel]

Nobody has the legal right to take down the constitution or the government, but if it comes to the point where the govt is illegitimate then they have the tools to do so. This is what i am saying.

There are usurpatory and illegitimate rulers in various one political party dominant American states today. Not necessarily because of some outright electoral fraud but because the men, women and even the children have given the oppressors of this world control and power in their lives. And by this same power, there are government "leaders" that are destroying the people of our communities, culture and nation. Not necessarily by direct malicious intent but out of their own selfish and prideful pursuits of power, wealth and prestige...or from laziness, sloth and lack of concern for those they claim to lead.

 

[ConstitutionCowboy]

The militia , according to the Constitution, is the ONLY source of power available to the Union to provide for the "safety" of the Union(Article I, Section 8, Clause 15).

What about the armed forces. What about the FBI and CIA?

The armed forces are not for internal use in the Union. The FBI is not supposed to be a law enforcement entity(it's current law enforcement activities are unconstitutional), and the CIA is not a law enforcement entity.

The only "safety" Congress is charged with providing is to protect the several states from invasion(Article IV, Section 4). Disarming or limiting the arms available to the militia is self-defeating.

I disagree.
"Section 8. The Congress shall have power to...provide for the common defense and general welfare of the United States"

I did forget to list enforce the laws of the Union in Article I, Section 8, Clause 15, and against domestic violence in Article IV, Section 4. However, you have implied that Congress has power to provide for the common defense and general welfare in the snippets you extracted from Article I, Section 8, Clause 1, when in fact it was given power in that clause to collect taxes to provide for those things, and "those things" are further defined and expressly enumerated in said Section 8, clauses 2 through 18.

The way the whole section is written is that "The Congress shall have the power to..." followed by each bit that is given to them.

Ah, but that's not quite true. It is "Congress shall have power ..." not "Congress shall have THE power..." as you have written. That makes a big difference in the distribution and availability of power to the Union, several states, and We the People. Examples:

Congress has power to coin money. The several states could coin money if not prohibited in Article I, Section 10, Clause 1.

Congress has power to provide for THE punishment of counterfeiting the securities and current coin of the United States. If Congress only had power to provide for punishment of counterfeiting, the states could punish counterfeiting as well.

A state may collect taxes same as Congress (except for duties on imports or exports without Congress's permission, or that may be necessary for inspections).

A state may build roads same as the Union.

A state may issue patents if it wished to do so.​

Actually nuclear weapons do pose a threat, they can kill you without intent. Just ask marie currie.

I'll bet if Marie Curie knew the radiation would kill her, she would have insulated the radioactive materials same as it is in the nukes we have today, or in our nuclear reactors.

... But there is nothing that says that a nuclear weapon, or any other weapon as a single type, is protected.

It doesn't work that way. The way the Second Amendment is written, nukes - or any other weapon, for that matter - would have to be explicitly excluded from the protection of the right to keep and bear in the Second Amendment, not included as being protected.

The unused versions of the "Second Amendment" you listed are interesting, but do not bear up your interpretation of "bear". Neither does any dictionary of the period. I can bear a condom, but simply bearing it in my wallet or pocket doesn't constitute using it - until I don it and engage in the activity for which it was designed, which goes way beyond simply bearing the instrument. It would help to consider that conscientious objectors still bear arms and provide other services in support of war, but are not personally required to kill. Bottom line is the version that was passed by Congress and ratified by enough of the states to become part of the Constitution. A rejected version is meaningless beyond academic discussion, and does not show intent like the accepted version does.

The 2A does not protect arms to exist. It protects individuals to have arms. It therefore does not in any way protect the right of a nuclear weapon to exist. Does it protect the right of an individual to keep a nuke? No, i don't believe it does. As long as an individual can get arms, then there is no problem. Now i have mentioned the distorting the market to make them more expensive. Well i think nukes are prohibitively expensive anyway. Besides, nukes conflict with article 1 section 8.

Nukes exist as a consequence of their invention same as spears and flintlocks exist as a consequence of their invention. And, how would nukes conflict with Article I, Section 8, in any fashion that spears or flintlocks would not?

It isn't a factor that even though we may only have access to certain arms, that we can still exercise our Right to Keep and Bear Arms. That isn't the importance and purpose of the Second Amendment. It is to prohibit government to infringe upon the right so we may keep and bear any and all arms as we see fit.

This has been an interesting and well conducted discussion, even though it is a bit off the original topic. My thanks to all!

Woody

Our government was designed by our Founding Fathers to fit within the framework of our rights and not vise versa. Any other "interpretation" of the Constitution is either through ignorance or is deliberately subversive. B.E. Wood

 

[ConstitutionCowboy]

I don't see anything in either the original or the 1903 revision to suggest that the People are not the Militia unless and until called forth by the civilian authority.

That's because both acts do the calling forth of the people to be in the militia. I'm outside the age parameters specified for those called to be in the militia by those acts, so I'm not a member of the militia though I train so that I shall be ready if I'm ever called by the civil authority to be in the militia. I'm not even considered a member of the unorganized militia! But, I'm one of the people. My right to keep and bear arms is as protected as anyone who is in the militia.

This has been an interesting and well conducted discussion, even though it is a bit off the original topic. My thanks to all!

Woody

Our government was designed by our Founding Fathers to fit within the framework of our rights and not vise versa. Any other "interpretation" of the Constitution is either through ignorance or is deliberately subversive. B.E. Wood

 

[Prince Yamato]

Here's how I see it:

Most small arms (handguns, rifles, etc.) exist for the purpose of throwing a single chunk of metal at a lethal speed. Regardless of the size of the round (.22LR all the way to 20mm), you're throwing a chunk of metal at a lethal speed. With all these weapons (small arms of varying varieties), you can reasonably estimate where the bullet is going to hit a target, probably to within a 2-3ft. radius. The direction of the round is obvious (it's going directly away from you) and where it hits is obvious (generally, somewhere in the vicinity of where you aimed).

With an explosive device, such as a grenade, RPG, or a nuclear weapon, the resulting damage is not very predictable. If I shoot a SMG at someone in self-defense, I can reasonably assume that all my bullets will arrive in generally the same place. If I toss a grenade at someone, I really have no idea how the shrapnel's going to fragment, what it's going to hit, or exactly how far it's going to be thrown. A RPG, takes out the throwing part, but there's still the element of fragmentation to be worried about. And with a nuke or bio-bomb it's even more difficult to calculate the damage.

I personally can't fathom that there are those out there that honestly believe a regular joe should be able to own hi-explosive nuclear weapons. There is no need for an individual to posses such weapons. They are only good for wiping out large portions of or entire cities. They are not part of a personal defense kit. The 2A gives you a right to defend yourself, not the right to take out an entire city. You don't take out a city in a defensive tactic- it's an offensive one.

 

[ConstitutionCowboy]

The 2A gives you a right to defend yourself, not the right to take out an entire city. You don't take out a city in a defensive tactic- it's an offensive one.

The Second Amendment gives you nothing. It prohibits government to infringe upon the Right of the People to Keep and Bear Arms. Self Defense is a right of the people on its own. Taking out a city is using a weapon, not keeping and bearing it.

The keeping and bearing of arms is totally benign and innocuous. Use of arms is not, and many uses of arms can be limited and/or prohibited in various situations.

It's illogical to equate how something might be used to the simple keeping and bearing of said something. As crass as a comparison as it may be, the most clear example is the disparity of trying to equate the keeping of your penis in your pants to raping someone with it.

Woody

 

[H088]

Let's see, who could afford a nuke that I definitely would not want having it? How about George Soros for example?

To be honest, if he wanted one he could probably get one, but I actually agree it serves no purpose for me to own one as I could never use it for anything.

How do you feel about automatic fire-arms though, do you think they should be legal to own?

 

[OMDP]

HO88

So you are saying its OK to ban most guns as long as that single shot .22LR rifle is still available , I could see that really working out well

No. I am saying that the federal govt is allowed to ban certain guns and weapons, as long as they don't change the market to make certain guns too expensive, or reduce choice down to a few. So they can ban unsafe guns for example, or they can ban this type of gun. There is a fine line.

At a minimum the second amendment should protect all small-arms, and any arm you could physically carry by hand.

In the Miller case they said

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

This suggests that the supreme court accepted that a gun is not protected, but rather an individual is. This gun may or may not have been legal, regardless of who owned it.