Second Amendment, Militia, (comma) vs Militia

[OMDP]

Legaleagle

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.

The reason behind preventing catholics from being protected was that they had just overthrown a catholic monarch and put in the protestant Mary on the throne.
The problem is the term "Suitable to their condition and as allowed by law" which basically excluded a lot of people who were protestants. The status of a person was important as to whether they could or not keep firearms, ie the poor did not have this right.
They may not have actively taken firearms away from Catholics, what they wanted to do was prevent catholics being more important than the protestants militarily.
The BoR was, rather than being there to protect the people of the nation, there to make sure the protestants got one over on the catholics and make sure they knew where their place was, as secondary citizens.

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:

I would say it comes more from the 4A. The problem with specifically saying that an individual has the right to self defence is that normally the person who is violating your self defence is not the govt. So the right that can be protected is merely the right not to be prosecuted by the federal govt for defending yourself, and half the time it might not be a federal issue anyway.

I don't believe there is a right to have any object which may be useful in self defence, this could be used by people to claim that everything is protected because it could in this or that situation be used to defend oneself.

http://hnn.us/articles/46815.html

This site makes the claim that the BoR did not effect the powers of govt to decide who could and who could not keep arms.

The perceived "militia only" or "militia primarily" focus, is based, I believe, upon the debates in the Virginia Ratification Convention.

The problem is, the english BoR keep arms clause did not act as a right in the sense it existed in 1789. A right was merely a power game between parliament and the monarchy.
The protection of individuals, or a group of richer individuals as was the case, was done in order to become more powerful than the catholics, prevent them coming back to power, rather than actually specifically give rights to individuals.
Now it is highly possible that the founders in the US took this initial base and expanded on it because they could, whereas in England they were trying to get the initial power. But certainly the difference seems to be the manner in which it was written, the american versions used a lot of philosophy of equality and freedom, whereas in England it was about the interests of the rich.

This needs to be taken into account also. The founders were not prone to keeping everything the same because that is how it had been, they would change it if it needed changing and certainly the english BoR keep clause would not have been able to fit into the american BoR.

 

[OMDP]

woof and 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 point is that arms were allowed so they could, in the event it was necessary, overthrow the govt and its army. However this does not mean that they are allowed all weapons the army are allowed. I think the founders kept it vague with just "arms" because we have nuclear weapons, imagine if nukes were protected by the 2A, the US would collapse. Terrorists could simply buy a house in a busy city, fill it with enough nuclear material to make it unsafe to live in. They could simply make the US an unsafe place.

 

[OMDP]

Constitutional cowboy

The armed forces are not for internal use in the Union.

Why not? There is nothing stopping the govt from using the armed forces in the US. When the national guard is called up by the feds, it is part of the armed forces and is used internally. The civil war used the armed forces.

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.

No, but they provide for safety. They are not the militia.

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.

SO you are reading the first part as "The Congress shall have power to lay and collect taxes, duties, imposts and excises, in order to pay the debts and in order to provide for the common defense and general welfare of the United States"???

Gramatically i see that we have The congress shall have the power and then a series statements beginning with to.

The Congress shall have power to lay and collect taxes
The Congress shall have power to lay and collect duties
The Congress shall have power to lay and collect imposts
The Congress shall have power to to lay and collect excises
The Congress shall have power to pay the debts
The Congress shall have power to provide for the common defense and general welfare of the United States

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:

Well yes, any putting in of "the" is not on purpose, just a natural reaction of someone who has spend ages trying to teach slavs to use definate articles.
The fact is that the local police and state police hold a lot of power to be able to provide for the general welfare of their area. However from the point of view of the whole of the US it becomes federal jurisdiction.

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.

Yes, but, someone may want to harm people. People want to harm others with guns. But you have to use a gun to harm someone. Nuclear material does not need to be used. If it is protected the feds could not set up a licensing scheme in order to force people to keep it in a certain way.
Besides, it poses such a threat to the constitution that the constitution HAS to be able to provide for the banning of it.

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.

I disagree, this goes back to the fact that arms are not protected by the 2A.
Individuals are protected.

The unused versions of the "Second Amendment" you listed are interesting, but do not bear up your interpretation of "bear".

Not only do they bear up, but they are consistent with the language of those in congress at the time.

Was willing to accommodate; he thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent.

I think Mr Jackson said this. He wanted this to be written in, ie, someone who did not want to bear arms did not have to. They are synonyms again.

Read what the founders said in congress and the whole religiously scrupulous argument is basically people who don't want to be in the militia should not have to serve. They got rid of it for one reason, because they believe that the feds could say all individuals were religiously scrupulous and prevent them from bearing arms. Ie, being in the militia.

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 -

Just because "get" means receive, does not mean "i get high" means "i receive high". Languages have these words with multiple meanings, fact is the founders made it CLEAR which meaning "bear" they were using.

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?

Quite easily, they are a major threat to the security of the USA. They count as a federal issue in the general welfare of the people.

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.

The 2A does not say "any arms" it says "arms"
Specific arms are not and have never ever been protected by the 2A. Only the general term "arms" are protected. In fact, as i have said before, if you are protected in having all arms, then ownership issues would come up. "I want your gun and i have a right to it".

 

[legaleagle_45]

The reason behind preventing catholics from being protected was that they had just overthrown a catholic monarch and put in the protestant Mary on the throne.

Actually OMDP, Catholics had been previously prohibited by law from being in the militia. King James II violated that law by recruiting Catholics to lead his "select militia". Thus, this language in the English BoR's:

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law

The method employed to exclude Catholics was by virtue of the so called Test Acts in which persons where required to declare that they did not believe in "transubstantiation" (the conversion of wine and bread to the blood and bones of Christ-- a fundamental tenant of the Catholic faith). This has importance in understaning what was going on in the Colonial era and explains some of the debate in the 1st Congress concerning the 2nd, since many states employed a modified "Test Act". In fact, there are certain "test acts" imbedded in our Constitution... the Presidential oath of office is an example.

This site makes the claim that the BoR did not effect the powers of govt to decide who could and who could not keep arms.

That is primarily an argument raised by Saul Cornell in his book book, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Quite simply, Saul is wrong. For example, his basic premise concerning Blackstone is that the 5th Auxillary right MUST concern a civic obligation tied to the militia because Blackstone covers the right of self defense elsewhere. What Cornell fails to tell you that the discussion of the 5th Auxillary Right occurs in an introductory chapter of Blackstone's Commentaries covering the "absolute rights of individuals". In that chapter he undeniably explains the nature of self defense as an absolute right of individuals, and does not mention the militia at all. Blackstone does in fact cover self defense elsewhere in his Commentaries when explaining self defense as a defense to the crime of homicide. What Cornell does not tell you is that Blackstone also covers the militia elsewhere in his Commentaries... So, the whole rationalization used by Cornell fails. Fact 1: Blackstone describes self defense in his 1st Chapter; Fact 2: Blacktone uses the terminology "self preservation" in his description of the 5th Auxillary right; Fact 3: Blackstone uses the same terminology of "self preservation" in his description of the defense to the criminal charge of homicide; Fact 4: The militia is not mentioned whatsoever in Blackstones 1st Chapter; and Fact 5: The militia is dealt with in seperate chapters of Blackstones Commentaries...

In other words, Cornell is either incredibly stupid or incredibly dishonest. I can provide you with direct links to Blackstone if you so desire, to confirm everything that I am telling you here...

 

[H088]

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.

Your contradicting yourself all throughout that passage.

IMO muskets are unsafe, we should ban them.................

 

[Gunsby_Blazen]

If you were to ban everything that was harmful, we wouldn't have much of anything available to us today.

This product contains SOMETHING, a substance known to the state of California to cause you to DIE....

 

[ConstitutionCowboy]

The armed forces are not for internal use in the Union.

Why not? There is nothing stopping the govt from using the armed forces in the US. When the national guard is called up by the feds, it is part of the armed forces and is used internally. The civil war used the armed forces.

Let's do some clarification. Let us call the regular Army, Navy, Air Force, Marines, and Coast Guard the "armed forces". We'll call the National Guard and Unorganized Militia the militia, for that is what they are. The Posse Comitatus Act prevents the use of the regular armed forces internally(except to guard the borders, repel invasions, etc.), and the Constitution only grants power to the Union to use the militia to enforce its laws (as well as repel invasions like the regular armed forces do, and suppress insurrections). As for "safety", that is not a function of the Union. The Union only provides security insofar as this discussion is concerned.

The Congress shall have power to provide for the common defense and general welfare of the United States

Again, you are taking this out of context. Congress collects taxes to pay for the execution of its powers. Congress provides(collects taxes and spends some of the money) for the common defense through its powers granted in this section, Clauses 10 through 16; and provides(collects taxes and spends some of the money) for the general welfare through its powers in the other clauses. Congress does not have an over arching power to provide for "the general welfare" as you keep stating. That would be like taking the "necessary and proper" clause out of its context and using it beyond the scope of the "...foregoing powers, and all other powers vested by this Constitution ..." to make some sort of law that Congress might feel is necessary though it would be beyond the scope of its enumerated powers, or into the realm of powers specifically prohibited.

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.

I disagree, this goes back to the fact that arms are not protected by the 2A.
Individuals are protected.

Again, the amendment prohibits government to infringe the right of the people. If it's a weapon, the government may not infringe my right to keep and bear it. The only thing that can prevent me from keeping and bearing any weapon is if it hasn't been invented yet, I can't afford it and Uncle Sam won't provide me with one, or I don't want one. Period.

Specific arms are not and have never ever been protected by the 2A. Only the general term "arms" are protected. In fact, as i have said before, if you are protected in having all arms, then ownership issues would come up. "I want your gun and i have a right to it".

Aside from your contradiction to your previous statement that arms are not protected, you still miss the point, purpose, and specific mandate of the Second Amendment: The right of the people to keep and bear arms shall not be infringed - as in by government. The Second Amendment doesn't give me any right to anyone else's arms. If I want some arm you have and you are willing to sell or give it to me, we can make a deal and government may not interfere.

There is no logic that can contravene the Second Amendment, no stratagem that can do an end run around it, and no malapropism that can vitiate its intent. Dissemble all you wish, for it's transparent. If you wish for the Second Amendment to disappear or to allow limitations on the right currently protected from government infringement, amend it. Article V of the Constitution for the United States of America specifies the processes by which any part of that Constitution may be amended. But for now, as George Washington said in his Farewell Address: "The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole of the People, is sacredly obligatory upon all." The Second Amendment was part of the Constitution when he made that speech.

I don't think it's a lack of understanding that has led to the infringements upon the RKBA, but a desire to undermine the freedom and self sufficiency of the people in order to create a larger, more domineering, nanny state. I don't think it's mistrust of the people by those in government, but a desire to act toward the goals of nanny-state-ism/police-state-ism with impunity. Unless and until we are effectively disarmed, those of us who are armed stand in the way. Knowing the past, I'll not surrender any arms and march less prepared into the future.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. If that doesn't convince you to take a stand and protect your inalienable rights and freedoms, nothing will. If that doesn't convince you to maintain your personal sovereignty, you are already someone else's subject. If you don't secure your rights and freedoms to maintain your personal sovereignty now, it'll be too late to come to me for help when they come for you. I will already be dead because I had to stand alone. B.E.Wood

 

[GhostCat]

End of discussion....

 

[OMDP]

Legaleagle

Actually OMDP, Catholics had been previously prohibited by law from being in the militia. King James II violated that law by recruiting Catholics to lead his "select militia". Thus, this language in the English BoR's:

Well yes. It was the fight between the catholics and protestants that has been a blight of the country.

In other words, Cornell is either incredibly stupid or incredibly dishonest. I can provide you with direct links to Blackstone if you so desire, to confirm everything that I am telling you here...

I am not sure it is that important. I think the most important aspect of this is that the english BoR is the precursor to the american BoR but that rights meant something different only 100 years previously.
It did seem to be something that may have been an interpretation. Certainly not all individuals could have arms even if they were protestant, and the govt did have the power to change this, however the english BoR was designed to protect parliament, rather than act as, like the US BoR, a limit of the power of the govt.

 

[OMDP]

HO88

Your contradicting yourself all throughout that passage.

IMO muskets are unsafe, we should ban them.................

No, i am not contradicting myself. The govt can ban guns, they can choose criteria for banning guns, however what they cannot do is ban all types of guns. There has to be a healthy market, as long as there is a health competative market for weapons that the ordinary person can buy, then the right of individuals to keep arms is still intact.

The govt can say all guns are unsafe, it doesn't matter, they cannot ban all of them, they can say a 19th century musket is unsafe and ban that, while keeping more modern weapons available.

 

[OMDP]

ConstitutionalCowboy

We'll call the National Guard and Unorganized Militia the militia, for that is what they are.

They are. But you also have to distinguish between federal duty and non-federal duty at times.

The Posse Comitatus Act prevents the use of the regular armed forces internally(except to guard the borders, repel invasions, etc.), and the Constitution only grants power to the Union to use the militia to enforce its laws (as well as repel invasions like the regular armed forces do, and suppress insurrections). As for "safety", that is not a function of the Union. The Union only provides security insofar as this discussion is concerned.

As far as i know, this is normal duty. The problem is what we are talking about is the safety of the union. Not from a general law enforcement point of view. You claim that the FBI is acting unconstitutional, i disagree to a certain point. There are federal laws which require a federal police force.

However, by safety i mean safety from forces that could topple the legitimate govt and the constitution. So this is more the armed forces rather than simple policing matters. So, when a group is considered a threat, the armed forces or a federal unit can be used. Wacko for example, or the destruction of AIM are such perceived threats where the govt has used its forces internally to provide for the general welfare and common defence.

Now in terms of the 2A and banning arms, if there is a perceived threat to the constitution and the legitimate govt, the govt can do something. Obviously they are limited in deciding what a threat is, even though they manage to pass this line on many occasions. But the 2A generally protects the right of individuals to have arms. No, if the US govt thinks that nuclear weapons are a threat to the stability of the nation, can they ban them? I would say yes. It is all about interpreting, but they are generally banned and controlled. Other weapons like tanks and aircraft are also controlled because they pose enough of a threat. Firearms are less of a threat, one person with a hand gun can do less damage than one person with a baseball sized nuclear device.
What about arms that have been banned through international treaties? Are they protected by a govt that is not allowed to have them by law?

Again, you are taking this out of context. Congress collects taxes to pay for the execution of its powers. Congress provides(collects taxes and spends some of the money) for the common defense through its powers granted in this section, Clauses 10 through 16; and provides(collects taxes and spends some of the money) for the general welfare through its powers in the other clauses.

The clauses within article 1 section 8 are powers. Congress can raise taxes for these things. Hamilton in the federalist papers said that congress could spend for the general welfare. This could be education, agriculture or other such things that are considered in the general welfare of the USA.
These are not specified below, however you could (especially if you were a govt official) that these could come under the commerce clause, which guns have at one point come under, controversially.

Congress does not have an over arching power to provide for "the general welfare" as you keep stating.

Of course it doesn't. However you have said that disarming or limiting arms is self defeating. The first is, the second is not.
The main clause here is "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;"
Ie, the ability of the feds to prevent insurrection from within. Yes the people have to have risen up (though to what extend goes back to what the govt deems insurrection). How do you prevent insurrection when a person gets themselves an atomic weapon?
Even though this clause deals with the calling up of the militia. The US govt has the power to prevent insurrection. Just as the right to privacy exists without it actually being mentioned. The US govt has the power to protect the legitimate govt and the constitution.
Certainly they have the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."


This ability to be able to protect the nation, though various agencies, the FBI, the CIA, the Militia, the Armed Forces and the like, exists for a reason. Where does the power for the CIA come from?
Bush seems to be trying to take this too far in my opinion. Wire tapping and other such things that are more than likely unconstitutional.

What the 2A protects is the right of individuals to be able to get their hands on weapons. Not all weapons. The commerce clause for example can get unsafe guns banned. There are parts of the constitution that can legitimatly ban certain guns.
The point is, they cannot ban all guns, there still needs to be a decent market. Does there need to be a decent market for other weapons, like howitzers for example? It depends on how you view the protections of the 2A, the problem is that these things are not currently considered protected.

What swings it for me is that the 2A was designed to be a check and balance on the armed forces. Through firearms it seems to be a check and balance that works and if the govt were to become bad or illegitimate, then there would probably be enough of a force to take over the govt if there were enough support. So the right to keep and bear arms works in its present state. Having a howitzer is not going to improve this, but might in fact make a legitimate govt have more problems.

Again, the amendment prohibits government to infringe the right of the people. If it's a weapon, the government may not infringe my right to keep and bear it. The only thing that can prevent me from keeping and bearing any weapon is if it hasn't been invented yet, I can't afford it and Uncle Sam won't provide me with one, or I don't want one. Period.

No, i disagree. What the govt cannot stop you doing is keeping arms, or bearing them. Ie, they cannot prevent you having weapons, they could in theory keep you to a certain amount of weapons per person. The bearing of arms i don't believe is connected with the weapon you have. It is possible to be bear someone elses arms within the militia system.
However it does say the right to keep arms, not all arms. As long as you CAN keep arms, then the govt is not doing anything wrong by banning certain things.

Aside from your contradiction to your previous statement that arms are not protected,

How is it a contradiction? The 2A does not say arms are protected.

The right of arms to be kept and bourne shall not be infringed.

There is no logic that can contravene the Second Amendment, no stratagem that can do an end run around it, and no malapropism that can vitiate its intent. Dissemble all you wish, for it's transparent. If you wish for the Second Amendment to disappear or to allow limitations on the right currently protected from government infringement, amend it.

Was the 2A there to destroy a legitimate govt by a private militia?
The function of the militia works like this.
Individuals have the ownership of arms protected so in the event of problems they can be used. This is a good check and balance on any govt.
These arms could be used ONLY within the militia system. Ie, an individual is protected in being in the militia and able to use their own or someone elses arms, ie, if the militia has howitzers then the personnel which are protected may use them.
Only the militia is valid in taking down an invalid govt, this is a protection because you don't want a dictator.
So the govt is prevented from banning the instruments that lead to this point. They are not prevented from banning things that do no lead to this point, and it is my opinion that howitzers, nuclear weapons do not.
The govt obviously has the power to protect itself. We can see this in article 1 section 8, they have the power to prevent insurrection (even though the 2A is designed to allow this to happen, through official means). Yes it only says through the militia, but i believe that it means more than this.

It is not about changing the amendment, it works perfectly fine, AS LONG AS it does not allow weapons which are going to be a major threat to the stability of the govt.

I don't think it's a lack of understanding that has led to the infringements upon the RKBA, but a desire to undermine the freedom and self sufficiency of the people in order to create a larger, more domineering, nanny state.

I don't think there have been many instances of infringements, DC yes, but not in many other places. The fact that the Heller/DC case has got to the Supreme Court when many others have not shows that the SUpreme Court do not agree with you.

 

[Nobody's_Hero]

Any time the Constitution is interpreted, it should be interpreted to expand freedom, not limit it.

Otherwise, we seem to have forsaken the very purpose of the document.

 

[Orange_Magnum]

"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."

The part "the right of the people to keep and bear Arms" in the statement above is a clarification of the two previous segments in the same sentence.

"A well regulated militia" means any group of people coming together for the purpose of upholding the law and forming a defense of the State or the Union. The threat can be Democratic politicians trying to over ride the Constitution.

At least if you ask me...

 

[yokel]

What swings it for me is that the 2A was designed to be a check and balance on the armed forces. Through firearms it seems to be a check and balance that works and if the govt were to become bad or illegitimate, then there would probably be enough of a force to take over the govt if there were enough support. So the right to keep and bear arms works in its present state. Having a howitzer is not going to improve this, but might in fact make a legitimate govt have more problems.

One might get closer to truth by realizing that it will prove to be a horribly lopsided contest without the equal or equivalent raw firepower as the main battle tank or attack helicopter. Somewhat akin to pitting a big bruiser against bantams.

I, for one, wish to taste the real thing and no longer settle for the ersatz Second Amendment that earlier generations in the U.S. bequeathed us.

 

[H088]

No, i am not contradicting myself. The govt can ban guns, they can choose criteria for banning guns, however what they cannot do is ban all types of guns. There has to be a healthy market, as long as there is a health competative market for weapons that the ordinary person can buy, then the right of individuals to keep arms is still intact.

The govt can say all guns are unsafe, it doesn't matter, they cannot ban all of them, they can say a 19th century musket is unsafe and ban that, while keeping more modern weapons available.

So you can ban guns, but not ban all guns, but the goverment can decide which bans on guns, but they can't ban guns with modern technology.



You lost me, anyway what about "shall not be infringed" is so confusing?

 

[basicblur]

And now for a different interpretation?

"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."

The part "the right of the people to keep and bear Arms" in the statement above is a clarification of the two previous segments in the same sentence.

"A well regulated militia" means any group of people coming together for the purpose of upholding the law and forming a defense of the State or the Union. The threat can be Democratic politicians trying to over ride the Constitution.

At least if you ask me...

I know many have tried to interpret their meaning by their other writings, etc, but when I simply read the 2nd, I don’t come away with that interpretation. Don’t know if I’ve ever seen anybody else interpret it this quite this way, but from an old country boy…

When I read the 2nd, I kinda get the impression that the founding fathers are 1st making a statement (we realize there needs/is going to be some type of military etc as it’s necessary to protect the country), but even though that’s the case, “the right of the people to keep and bear Arms, shall not be infringed.”

Now “the right of the people to keep and bear Arms, shall not be infringed” speaks (or should) for itself-how much plainer/simpler can you make it?

Where I read it differently is I take it to say (in today’s vernacular):
“Look, we know if we simply say, “the right of the people to keep and bear Arms, shall not be infringed”, somewhere down the road some d***head (trying to disarm the people) is going to say “but we’re not infringing on their right, as “the people” (the militia/military, etc) have arms”-In other words, ya wanna keep and bear arms, join the militia/military etc-so we’re (the Founding Fathers) going to make a distinction between “the people” and “the Militia”.

Now it doesn’t matter what interpretation you take, to me the result is the same: “the right of the people to keep and bear Arms, shall not be infringed.”
Where I kinda differ is I don’t know that the founding fathers meant for “A well regulated Militia” to be “the people”.
I kinda read the 2nd as establishing a distinction between "the Militia" and “the people”.

To me, the interpretation I get (just from reading the 2nd) would show the Founding Fathers to be even wiser (and knew human nature/dictators/politicians darn well) than if they meant for the people and the Militia to be the same.

I’m just saying…

 

[basicblur]

One might get closer to truth by realizing that it will prove to be a horribly lopsided contest without the equal or equivalent raw firepower as the main battle tank or attack helicopter. Somewhat akin to pitting a big bruiser against bantams.

But the very fact that “the people” are armed might mean it may never get to that point!
After all, there’s a big difference between a soldier being asked to do X, Y, or Z against an unarmed populace, but if “the people” start shooting, how many in the military would say, “That’s it”…I ain’t firing on our own citizens”?

BTW…iff’n memory serves, in the book “The Great New Orleans Gun Grab”, when the 82nd Airborne was told to go into New Orleans and confiscate all weapons they found, they informed the local authorities, “We just got back from Iraq…we ain’t firing on our own countrymen”!
Reports are the only 2 “enforcement” groups that had no complaints against them were the Louisiana Department of Wildlife and Fisheries and the 82nd Airborne (the 82nd Airborne was reported as being the most professional of all groups citizens in New Orleans had dealings with).
Kinda reminds me of the preponderance of bumper stickers I see at military air shows (on soldiers’ cars!)…
I love my country…I fear my government!

And on a related note…?
I remember reading many years ago Soviet leaders had contingency plans to use nuclear weapons on their own people in case they got a bit too uppity until the KGB managed to convince them how ridiculous that was!

 

[Orange_Magnum]

The part "shall not be infringed" says it all: Do not touch the fire arms of the people, and do not have objections about their fire arms. This means a gatling gun in every home and a few anti tanks launchers under the bed. If I were president...

Militia and military are two completely different words. Look them up in the dictionary.

 

[ConstitutionCowboy]

There are federal laws which require a federal police force.

The only "police force" available to the Union is the militia as specified in Article I, Section 8, Clause 15. There is no other provision in the Constitution granting law enforcement power to the Union. The FBI, BATFE, DHS, and the like are not the militia. The militia should have been used in Waco. If you can find any grant of power in the Constitution to Congress for it to establish any federal police force, please show it to me.

What about arms that have been banned through international treaties? Are they protected by a govt that is not allowed to have them by law?

The United States may not enter into any treaty that would run afoul of the Constitution. Treaties must be made under the authority of the United States. The Second Amendment prohibits government to infringe upon the right of the people to keep and bear arms, therefore, the Union has no authority to enter into any such treaty.

Limiting our arms, whether those owned by the Union or by the people, is the dumbest thing any country or individual can do. It creates an open door for every opportunistic tyrant and despot out there. Nothing has ever worked better than a balance of power to thwart war. World War II might never have occurred if the rest of Europe was as well armed as Germany. If you wish for our government to remain intact and the people to remain free under that government, a balance of power is required. No one would overthrow a government that kept to its assigned duties and wasn't oppressive, and a government wouldn't become oppressive if those in government knew they could be taken out and replaced in a matter of a few minuets.

The clauses within article 1 section 8 are powers. Congress can raise taxes for these things. Hamilton in the federalist papers said that congress could spend for the general welfare. This could be education, agriculture or other such things that are considered in the general welfare of the USA. ...

These things weren't included in the Constitution, for the "general welfare" doesn't mean what you keep implying. The general welfare to be provided for includes things like coining money and set its value, regulate(not prohibit or limit) commerce between the several states and foreign nations, deliver the mail, build roads, provide for the common defense. Education and supporting individuals who don't wish to work for a living are not things among the duties and responsibilities of the Union. Those things are powers reserved to the states or to the people - no power is granted to Congress to fund or regulate these things.

... These are not specified below, however you could (especially if you were a govt official) that these could come under the commerce clause, which guns have at one point come under, controversially.

The Commerce Clause is about the most abused and stretched power - by usurpation and unconstitutional interpolation of the meaning of the word "regulate" - granted to Congress. As for its use in the attacks on the RKBA, Congress has completely ignored the Second Amendment. The Commerce Clause does not supersede the Second Amendment. The opposite is true.

There are parts of the constitution that can legitimately ban certain guns.

Show me.

I don't think there have been many instances of infringements, DC yes, but not in many other places. The fact that the Heller/DC case has got to the Supreme Court when many others have not shows that the SUpreme Court do not agree with you.

The NFA, the GCA, and parts of the FOPA affect everyone and are the most invasive for that reason. As for which cases have made it to the Court, I'd look at the makeup of the Court when any of these issues came up. The Supreme Court is in no way immune to bias and agenda. At present there are only four people on the Court who have any measurable respect for the Constitution: Roberts, Thomas, Scalia, and Ilito.

Woody

 

[OMDP]

Nobody's hero

Any time the Constitution is interpreted, it should be interpreted to expand freedom, not limit it.

Otherwise, we seem to have forsaken the very purpose of the document.

What is expanding freedom? Allowing citizens to have nuclear bombs sounds more like preventing freedom, allowing survival of the richest. For freedom to exist, the constitution needs to be protected, legitimate govt needs to be protected, otherwise it is all a waste of time.

 

[OMDP]

Yokel

One might get closer to truth by realizing that it will prove to be a horribly lopsided contest without the equal or equivalent raw firepower as the main battle tank or attack helicopter. Somewhat akin to pitting a big bruiser against bantams.

The one would assume that the US won Vietnam and the soviets won Afganistan.

 

[OMDP]

HO88

So you can ban guns, but not ban all guns, but the goverment can decide which bans on guns, but they can't ban guns with modern technology.

You lost me, anyway what about "shall not be infringed" is so confusing?

The right is for the people, individuals to be able to keep (own) and bear (be in the militia) arms.
Individuals have to be able to keep arms, that is what is protected, the arms are not protected, the Miller case basically 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.

Now, they did not absolutly come out and say a gun had to have some reasonable relationship, but they suggested this. However it makes sense. What is a reasonable relationship?
Well look at who can and who cannot keep arms for example, criminals can be banned, what does that mean for "shall not be infringed"?
It CAN be infringed after due process.
So, an individual cannot be banned before due process for keeping arms. There is nothing that says all weapons must be allowed to be kept, a citizen must be able to have a choice of arms and be able to keep them at home.

The problem is that most people seem to think the amendment says "arms" and "shall not be infringed" and they assume that they can do whatever with their arms as long as it doesn't break the law. Wrong.
Carry and conceal is not protected, the supreme court has said this and in the US at present there are licenses for carry and conceal. If it were a right it could not be licensed.
What is protected is there for a reason, to allow the militia to have arms. But that does not mean that a person cannot carry and conceal, it means that carry and conceal is not protected. The protections of the 2A are limited to a certain extend. And arms do not have a right to be protected, individuals have the right to be able to keep and bear arms.

 

[OMDP]

Basicblur

Now “the right of the people to keep and bear Arms, shall not be infringed” speaks (or should) for itself-how much plainer/simpler can you make it?

Considering most americans don't seem to understand it, and considering the supreme court is considering a case where both sides don't seem to understand it, could be simpler.

 

[OMDP]

Orange magnum

The part "shall not be infringed" says it all: Do not touch the fire arms of the people, and do not have objections about their fire arms. This means a gatling gun in every home and a few anti tanks launchers under the bed. If I were president...

Actually it says, do not prevent individuals from being able to keep arms. The arms are not what is protected. The protection is the individuals to be able to own arms and then use them in the militia.

 

[OMDP]

ConstitutionalCowboy

If you can find any grant of power in the Constitution to Congress for it to establish any federal police force, please show it to me.

So how does the US govt justify the FBI? Why has the Supreme Court not done away with the FBI?

The United States may not enter into any treaty that would run afoul of the Constitution. Treaties must be made under the authority of the United States. The Second Amendment prohibits government to infringe upon the right of the people to keep and bear arms, therefore, the Union has no authority to enter into any such treaty.

Which is then subject to your interpretation of the 2A, that it protects arms, rather than individuals to keep arms.

Limiting our arms, whether those owned by the Union or by the people, is the dumbest thing any country or individual can do.

Quite the opposite. As i have said numerous times, the basic premise of a constitution is that it should be implode. It should not allow people to be able to destroy it and destory the legitimacy.
The Weimar Republic had such a constitution and that was far more dumb.

It creates an open door for every opportunistic tyrant and despot out there.

Not as much as what you are suggesting.

Nothing has ever worked better than a balance of power to thwart war. World War II might never have occurred if the rest of Europe was as well armed as Germany. If you wish for our government to remain intact and the people to remain free under that government, a balance of power is required. No one would overthrow a government that kept to its assigned duties and wasn't oppressive, and a government wouldn't become oppressive if those in government knew they could be taken out and replaced in a matter of a few minuets.

The Nazi Germany part i think is wrong, but i won't get into that now. Just to say that lots of people had guns in Iraq and did that save them?
A balance of power IS required, but you are suggesting moving the balance of power too much in the wrong direction. I could give Hundreds of examples of legitimate govts that were overthrown. The Weimar Republic for example. It kept to its duties and was not repressive. It got overthrown by a minority because it could. The Germans sat back and took it.

Education and supporting individuals who don't wish to work for a living are not things among the duties and responsibilities of the Union. Those things are powers reserved to the states or to the people - no power is granted to Congress to fund or regulate these things.

Well you are going to have to argue that with Hamilton, author of the federalist papers. You are also going to have to argue that with the SUpreme Court which upholds these things.

http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html

The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The Commerce Clause is about the most abused and stretched power - by usurpation and unconstitutional interpolation of the meaning of the word "regulate" - granted to Congress. As for its use in the attacks on the RKBA, Congress has completely ignored the Second Amendment. The Commerce Clause does not supersede the Second Amendment. The opposite is true.

The Supreme Court stopped the expansion of the commerce clause in 1995 in Lopez. However it upheld certain cases that had taken place in the 1940s that have an expanded version of the commerce clause.
However, the ability to regulate commerce is important, ie, faulty guns should not be sold.

Originally Posted by OMPD
There are parts of the constitution that can legitimately ban certain guns.

Show me.

The commerce clause for example. But i also stick by my interpretation of general welfare.

The NFA, the GCA, and parts of the FOPA affect everyone and are the most invasive for that reason. As for which cases have made it to the Court, I'd look at the makeup of the Court when any of these issues came up. The Supreme Court is in no way immune to bias and agenda.

No, of course it isn't. However i don't think cases haven't got there because of bias. I don't even think the 2A was on their bias radar 50 years ago.
I also don't see much of a dramtic change in the make up of the court in quite a while for there to have been a bias against the 2A, in fact i would assume that all would want to put their stamp on this amendment.