The Second Amendment doesn't guarantee the right to get arms, true or false? (Moved from Legal)

[BLACKHAWKNJ]

An argument I use is that the 2A imposes no obligation on the government or other citizens to provide my firearms, ammunition, etc.
That's like saying you have the right to freedom of speech but can't print handbills, books, use recording devices, etc.

 

[AlexanderA]

So, in other instances, "the people" equates to "the unorganized militia"?

You could put it that way. The problem, however, with that formulation is that it gets confused with the definition of "unorganized militia" found in 10 U.S. Code § 246. This is really mixing apples and oranges. The "2nd Amendment Militia" is universal, whereas the statutory militia is not.

 

[jrmiddleton425]

The Second Amendment only specifies the right to keep and bear arms. There's no mention of the right to acquire arms. In the absence of specifically mentioning the right to get arms, is it a right or something that should be regulated by the government/ATF? In other words, can or should the government legally regulate if law abiding citizens get guns or certain guns or gun parts? We know certain firearms/weapons can't be legally owned by individuals or things can change over time. We know the government can legally or illegally do things just like an individual can.

What was the intent of the Second Amendment at the time it was written, codified and passed as law? How can we be sure what the intent was or is of our founding fathers? Why wasn't other supporting documents or writings specifically on the Second Amendment by our founding fathers include more words explicitly stated in the Second Amendment to try to attempt to avoid lawsuits. Not that the Second Amendment is about lawsuits but in reality that's where legal determinations are made. Was the Second Amendment broadly or narrowly focused?

In some ways the Second Amendment might be too short and concise that leaves it open for people to interpret or debate the intent and have varying opinions. Perhaps, more wasn't written because it would have had the opposite effect because it would be picked apart and therefore more confusion would ensue.

Who are all the gun laws protecting? The government, other countries, law abiding citizens, criminals or a all of the above?

For the legal scholars or very opinionated, what's your thoughts on the Second Amendment regarding getting arms not just keeping and bearing arms? It's difficult enough to just keep what guns or rights we already have because it's constantly being chipped away.

P.S. Please keep things cordial. I'm as passionate about guns and the Second Amendment as anyone that believes in "freedom" which can be a misnomer in itself but you know what I'm saying. I want this to be an educational dialogue. In other words, I don't want the mods to shut this thread down because it goes south because adults can't behave themselves.

A law can do one of two things...it can either require that you MUST do something, or it can require that you MAY NOT do something. In the case of the Second Amendment, it is silent on everything EXCEPT what the government cannot do.

If the law is silent, you can do what you want. What is not expressly forbidden is allowed by default.

 

[Pudge]

You could put it that way. The problem, however, with that formulation is that it gets confused with the definition of "unorganized militia" found in 10 U.S. Code § 246. This is really mixing apples and oranges. The "2nd Amendment Militia" is universal, whereas the statutory militia is not.

So, are you saying that the right of the universal militia to keep and bear arms is not an individual right, and likewise the freedoms of assembly and being secure in their persons, houses and papers are not individual rights, but rather are rights granted to the universal militia?

 

[RetiredUSNChief]

Are you saying that the Founders considered "the people" and "the militia" interchangeable all the time, or just in the 2A?

The Founders considered the citizens to BE the militia.

 

[Pudge]

The Founders considered the citizens to BE the militia.

The militia may be the people, but the people are who have the right. Saying that the right is a corporate one for the militia, means that it is reserved for those serving in the capacity of the militia, for those defending this nation and its government in an unorganized militia. I disagree. I am no historian, but I've read enough to be convinced that the right to keep and bear arms is an individual right, and that right is necessary to keep this nation free. It is an individual right so that it can serve a corporate good, but the right is not dependent on the militia, the militia is dependent on the right. I believe the right has been preserved for me to defend myself, defend this country, defend my government, or oppose my government. The militia is necessary, so my individual right may not be infringed upon.

 

[AlexanderA]

So, are you saying that the right of the universal militia to keep and bear arms is not an individual right, and likewise the freedoms of assembly and being secure in their persons, houses and papers are not individual rights, but rather are rights granted to the universal militia?

Not saying that at all. The way the 2nd Amendment is structured, the individual RKBA (to the extent it cannot be infringed under the Constitution) flows from the automatic membership in the universal militia. I think Justice Scalia was totally wrong on this. It's an individual right, but one that is grounded in the collectivity. The other rights that you mentioned have nothing to do with the militia.

The RKBA may exist outside the Constitution. That's another discussion.

 

[Pudge]

Not saying that at all. The way the 2nd Amendment is structured, the individual RKBA (to the extent it cannot be infringed under the Constitution) flows from the automatic membership in the universal militia. I think Justice Scalia was totally wrong on this. It's an individual right, but one that is grounded in the collectivity. The other rights that you mentioned have nothing to do with the militia.

The RKBA may exist outside the Constitution. That's another discussion.

Those other rights are rights of "the people", the same as the right to keep and bear arms. The right to keep and bear arms is not dependent on any militia, the militia is dependent on the right of the people to keep and bear arms.

 

[theotherwaldo]

Not saying that at all. The way the 2nd Amendment is structured, the individual RKBA (to the extent it cannot be infringed under the Constitution) flows from the automatic membership in the universal militia. I think Justice Scalia was totally wrong on this. It's an individual right, but one that is grounded in the collectivity. The other rights that you mentioned have nothing to do with the militia.

The RKBA may exist outside the Constitution. That's another discussion.

The Constitution and the Bill of Rights do not give us rights
Rather, the Constitution enumerates the powers and duties of the federal government in relation to the rest of the world and the original Bill of Rights primarily restricts the federal government from tampering with these 'God-given' (as opposed to government-controlled) rights.
Therefore, the RKBA exists outside of all of the laws, rules and regulations of the United States.

 

[gunny2]

Asking about the second amendment on a gun forum I wondered how this would turn out

 

[12Bravo20]

I'll quote the actual Militia Law again.

§246. Militia: composition and classes

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

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Take note to (a) then look at (2). As written, ALL abled bodied males at least 17 years of age, and under 45 years of age ARE the militia. Number 2 clarifies that if one is not a member of the National Guard or Naval Militia (the organized militia) then they are part of the unorganized militia.

 

[tomrkba]

I think there was a ruling on this and the right includes the ability to buy, sell and dispose of weapons and related items.

 

[AlexanderA]

Those other rights are rights of "the people", the same as the right to keep and bear arms. The right to keep and bear arms is not dependent on any militia, the militia is dependent on the right of the people to keep and bear arms.

Well, that was Justice Scalia's view in the Heller case. The problems I have with that are (1) it's not historical, and therefore not "originalist," and (2) it's actually weaker, from a gun-rights view. If we give the Militia Clause due weight, that means that the private ownership of military weapons, such as machine guns, is protected. If the Militia Clause is a nullity, then the government can outlaw such things. (And in fact, in the Heller decision, Scalia explicitly said that the government could do just that.)

 

[AlexanderA]

The Constitution and the Bill of Rights do not give us rights
Rather, the Constitution enumerates the powers and duties of the federal government in relation to the rest of the world and the original Bill of Rights primarily restricts the federal government from tampering with these 'God-given' (as opposed to government-controlled) rights.
Therefore, the RKBA exists outside of all of the laws, rules and regulations of the United States.

God or Nature does not "give" us rights. The only law of Nature is that the strong eat the weak. And besides, if gun rights were "God given," we would see them throughout the world. Instead, America is unique in having them.

No, throughout human history, rights have been wrested by the people from their reluctant rulers. The Constitution and laws merely codify rights that we ourselves seized by bloody struggle. This of course is an ongoing thing.

 

[AlexanderA]

I'll quote the actual Militia Law again.

10 U.S.C. section 246, as it stands today, is not relevant to the situation in 1791. The militia, as envisaged by the Founders, was much more universal than the section 246 definition. I see your point, but the 1791 situation is even more favorable to us. For example, there was no "under-45-years-of-age" limitation for the 2nd Amendment militia. If you could heft a musket, you were in.

 

[Space Ghost]

I think the founding fathers were well educated, moral, and brilliant men.

Therein lies the problem...

When drafting the Constitution, and the following amendments, they were written as if they would be read, and followed by men of equal intelligence, and morals.

We all know this has not been the case.

In more modern times, people have taken to using their so called "educations" without the corresponding morals.
It's as if an education is nothing more than instructions on "how best to screw over your fellow man for personal gain".

For me... I look at the 2A and see it covers everything... for both the government, and its people.

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 first part... "A well regulated Militia, being necessary to the security of a free State" covers the fact that the state has the right to keep a standing army for it's security. (or call one up)
The second part... "the right of the people to keep and bear Arms, shall not be infringed." covers the fact that the populace may be similarly armed, in case the government goes rouge, and uses its army to subjugate its own people... like they just got done fighting against.

Of note is that they simply state "Arms". In common use meaning "weapons". This is a "gun control" issue in modern times, but its meaning is "ANY TYPE" of weapon. Knife, Sword, Battle Axe, spear, Cannon, Ship of the line, (Battleship)
In short, everything the military had, anyone who could afford it could buy. If we are to go by the actual intent of the 2A, the entire NFA would be nullified, and every weapon would be legal.

Basically, to me this indicates a few things.

1. We can KEEP arms. (of ANY kind)
2. We can BEAR arms. (of ANY kind)
and for us to do either...
3. We can ACCQUIRE arms. (of ANY kind)


Well, we SHOULD be able to anyhow.

 

[AlexanderA]

I think the founding fathers were well educated, moral, and brilliant men.

Really? Thomas Jefferson fathered many children with his slave mistress (Sally Hemings). He never married her, and, more importantly, he never freed her or most of their children.

If you look hard enough, the Founders had feet of clay. After all, they were politicians. Same then as now. Not gods.

 

[Pudge]

Well, that was Justice Scalia's view in the Heller case. The problems I have with that are (1) it's not historical, and therefore not "originalist," and (2) it's actually weaker, from a gun-rights view. If we give the Militia Clause due weight, that means that the private ownership of military weapons, such as machine guns, is protected. If the Militia Clause is a nullity, then the government can outlaw such things. (And in fact, in the Heller decision, Scalia explicitly said that the government could do just that.)

I disagree with your position on #1, and if the shall not be infringed clause was given due weight, #2 would be moot.

 

[AlexanderA]

I disagree with your position on #1, and if the shall not be infringed clause was given due weight, #2 would be moot.

Bottom line: without the Militia Clause, there's no chance that the NFA would be overturned. The Miller case would be irrelevant.

 

[tazbigdog]

Courts have ruled on this, especially during COVID. The right to possess, purchase, and train with them, shall not be infringed. I agree.

 

[damyankee425]

The OP's question in some ways gets to the heart of the text-and-tradition test set up by the Bruen decision. Most all the restrictions on arms are a 20th century construct. No one in America would have given a second thought about if personal guns were legal to acquire and keep before then. Big city laws like the Sullivan act came about after the turn of the century with the changing landscape and modernization of the country.

Cannons, warships, explosives, rifles, machine guns, handguns were all owned and used by private citizens at one time. Anyone who wanted them and could come up with the money could do so without any by-you-leave from the federal government pre-1934. It was understood that all manner of weapons were freely traded without constitutional impediment, hence the reason when 1934 came about it was a taxing scheme. (A giant raft of other federal laws came into being around this time greatly expanding government power where it very much didn't exist previously. People were distracted with a depression and lots of other problems so ceding ground wasn't much concern to most citizenry but it was awful important to do something about artillery pieces and machine guns after the Bonus Army affair in '32.)

Federal laws were few and far between with 1934 and 1968 as the big ones. These took a off with slews of amendments and adjustments going forward. There wasn't much doubt what legislators and agitators wanted: a complete bans on handguns and relegating long guns to hunting camps and sporting ranges. This was supposed to be a brave new world and putting the archaic past behind us as a society. Given the antiwar sentiment and fear of inner city crime of the 60s-70s-80s-90s they had a pretty good track record of pushing and passing their agenda. It likely would have continued if not for the Gulf war and subsequent terror attacks which changed a lot of public opinion about our military and people's inherit rights to self protection.

I would keep in mind this was not a case of the government establishing some new threshold for what qualified as constitutional rights in the past. Instead at each step the story was always the same -- bad people have some type of bad item already freely available to them, so we the good people need to be responsible and give up the right to the bad item so we can all be safer from the bad people.

Have my own theories. All these crime sprees and shootings were and are in some cases set ups. Government wants to take our guns. Make the public feel safe by making such laws that will do so. And the people will freely give up their rights.

 

[Robert]

Nope, conspiracy theories are not helpful. Let's call it a day.