What to say to people who say "SA is for well organized militias only?"

[AZRickD]

This should keep them busy for a while:

First, the basics:

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debate, and instead of trying what meaning may be squeezed out of the text, or invested against it, conform to the probable one in which it was passed.†[Letter to Justice William Johnson, June 12, 1821]

Tench Cox was a friend of Madison’s and wrote the following glowing report of the Second Amendment just after it was drafted:

“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.†Philadelphia Federal Gazette, June 18, 1789.

Madison later read these words and wrote back to Cox, “...the printed remarks I already find in the gazettes here...be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the cooperation of your pen.â€.


Here is Cox, writting prior to the Constitutional Convention:

“The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon regular troops, and will generally be sufficient to over-awe them. Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.â€

Richard Henry Lee is the guy who called for drafting the Declaration of Independence, which he later signed:

“A militia, when properly formed are in fact the people themselves...and include all men capable of bearing arms...To preserve liberty it is essential that the whole body of people always possess arms...The mind that aims at a select militia, must be influenced by a truly anti-republican principle.†Federal Farmer, 1788.

What did Noah Webster mean by the phrase, "whole body of the people?"

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense raised in the United States...â€
“Leading Principles of the Federal Constitution, Philadelphia,†1787.

Even Alexander Hamilton got into the act:

Federalist #28: "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state."

And in Federalist #29:

“If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens.â€

Wow. What Radical Revolutionaries these dude were!!!

William W. Rawle, A View of the Constitution 125 (2d ed. 1829). His work was adopted as a constitutional law textbook at West Point. He is quoted by Stephen P. Halbrook in "That Every Man Be Armed: The Evolution of a Consitutional Right" as follows.

"In the Second Article, it is declared that a well regulated militia is necessary to the security of a free state: a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable, yet ... the militia form the palladium of the country .... The corollary from the first position is, that the right of the people to keep and bear arms shall not be infringed. THE PROHIBITION IS GENERAL. NO clause in the Constitution could by any rule of construction be conceived to give Congress a right to DISARM THE PEOPLE." Such a flagitious attempt could only be made under some general pretence by a state legislature. But, if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

Powerful stuff.

Thomas Cooley, who was born in 1820 wrote the leading law school text for the latter 19th century. It is called the “General Principles of Constitutional Law.†Here is an excerpt:

“The right of self defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible.â€

"...The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon...If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet in voluntary discipline in arms, observing in so doing thelaws of public order.â€

 

[Nightfall]

What, are you telling me that we have a Constitutional Amendment especially to say that the government may have weapons? Wow.

I've kinda used this one before. I find it astounding that people can honestly tell me (with a straight face!) that they think the Founding Fathers, after fighting a tyrannical government, while in the course of founding a limited government of the people, decided to include an amendment specifically saying the government has a right to arms.

 

[Col. Mustard]

'People" as used in the BOR

Oops.

 

[MrMurphy]

Tell people who think the militia is the National Guard that how come the Constitution, which was written around 1780-90, authorized the arming of a group which did not exist until about 1914? You know, LONG AFTER THEY WERE DEAD! And multiple wars later too........



"The militia" is what is seen in The Patriot with Mel Gibson. Any man or boy old enough to walk, see, hear and shoot. Technically from 17-45, but realistically from 14 to 70.

I just saw some footage yesterday from the liberation of a small French town during WW2 where they handed out guns to all the residents and they helped them clear the town out with the US troops. 15 year old kids with .38s were running around passing messages and taking potshots, and greybearded old veterans of World War One (one guy looked like he could have been a vet of the war of 1871!!) were doing street fighting, house to house and corner to corner against guys half their age with old Lebels and Berthiers, M1 carbines and whatever else was on hand.

They may be old, but they knew how to fight, and how to shoot, and they apparently helped quite a bit in liberating their own town and surrounding countryside. THOSE guys are "the militia".

 

[Mute]

Rather than post all of it here, this website gives a good summary, by Eugene Volokh, of the various decisions that relates to the second amendment.

 

[Jim K]

The liberal argument is that in the Second Amendment, and the Second Amendment ONLY, the word "people" means "the people collectively" or "the state." By that reasoning, the rest of the Bill of Rights protects the right of the state (and the state ONLY) to publish papers and magazines, the right of the state (and the state ONLY) to be free from searches of its property, etc. Both the idea that the word "people" had a unique meaning when used in one place, and the idea that the only rights protected are those of the states, are absurd.

At the time of the writing of the Constitution, the words "well regulated" did not mean "controlled" or "organized" but rather "well trained" or "well drilled". As with almost everything else in politics, the wording was a compromise between those who wanted an unlimited right (as in some state constitutions) and those who wanted the right in a militia context.

In fact, it was recognized that the "right to bear arms" was a euphemism for "the right to revolt". We should not forget that the people who wrote that document had just emerged from a revolution (actually a secession) and feared that the new government might also turn into a tyranny. The colonial militias, not citizens acting as individuals, were the backbone of the revolutionary army, and the laws, then and now, make every citizen a member of the militia.

Remember, "Our Noble Founding Fathers" were a gang of armed revolutionaries.

Jim

 

[moa]

A "well regulated" militia meant that citizens had the duty to supply their own arms, ammo, equipment and training. The States and communities could not afford to arm, train, equip and retain a large number of people for long period of time, and be ready for any eventuality indefinitely.

And, that is what the militia is, a large number of armed and ready citizens that can be mustered, or muster themselves, in case of emergencies that require armed resistance.

That is one of the reasons the Japanese during WWII gave up on the idea of attempting an invasion of America. Too many armed citizens that would undoubtely resist.

The National Guard is for intents and purposes is an arm of the Pentagon. I think the Pentagon supplies like 98% of the funding and all of the equipment, training, etc. The National Guard is factored into the Pentagon's war fighting strategies. Been that way since WWII, if not earlier.

 

[RaySendero]

UberPhLuBB,

Its always important to know what the founding fathers wrote or were quoted to understand their thinking at the time they penned the BOR. AZRickD had some already listed. Here are some quotes from my files. Mostly then and now one of late where Tribe says uncle.


"The very atmosphere of firearms anywhere and everywhere restrains evil interference -- they deserve a place of honor with all that is good.â€
--George Washington

“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation. . . (where) the governments are afraid to trust the people with arms.â€
-- James Madison, of Virginia, The Federalist, No. 46

“Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them.â€
-- Thomas Paine, of Pennsylvania, Thoughts On Defensive War, 1775

“No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against the tyranny in government.â€
-- Thomas Jefferson, June 1776

“Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
-- Jefferson's "Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

“A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms... The mind that aims at a select militia, must be influenced by a truly anti-republican principle.â€
-- Richard Henry Lee, of Virginia, Additional Letters From The Federal Farmer, 1788

“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 Defense of a free state.â€
-- George Mason, Declaration of "the essential and unalienable Rights of the People“, 1788

"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
-- Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788

“The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.â€
-- Fisher Ames, of Massachusetts, Letter to F. R. Minoe, June 12, 1789

“On every question of construction (of the constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.â€
-- Thomas Jefferson, letter to William Johnson, June 12, 1823


“The right of the people to keep and bear arms shall not be infringed. Amendments to the Constitution of the United States and this without any qualification as to their condition or degree, as is the case in the British government.†“In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.â€
-- St. George Tucker, creator of an American edition of Blackstone's Commentaries, was appointed by President James Madison to Virginia's High Court of Appeals where he served as a jurist from 1804 until his death in 1827.

“Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one. Its central object is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state.â€
-- Laurence H. Tribe, I AMERICAN CONSTITUTIONAL LAW 901-02 n.221 (Foundation Press 2000).

 

[Sistema1927]

oldfart, great response to Pharley.

It is really true that there is "nothing new under the sun". The heart of man has not changed since 1776, just as it had not changed for thousands of years prior to that date.

The Founding Fathers knew the hearts of men, they knew all about abuse of power, and they knew all about how to craft a government for the ages.

You are correct, we need to return to the Founding principles, and forget this notion that since times have changed our principles need to change.

 

[SodiumBenzoate]

I saw this at LiberalForum, of all places:

Consider that as a simple analogue:

"A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed."

What does it mean? It means you are going to stop infringing on the right to read and write, hoping that, as a result, some of them will be smart enough to vote. To the same tune, the Second Amednent means the government is going to stop infringing on your RKBA, hoping that, as a result, it will be possible to create a ‘well-regulated militia’.

 

[SunBear]

Nice work,folks!!!

 

[luxone]

I would say that the Cinstitution needs updated. Although I like to carry my pistols, let's face it....times are different than 1776, as is the definition and meaning of militia. They guys 230 years ago put together a heckuva a writing, but they obviously could not see the times we are in now.

Pharley,
Please tell me your joking! Our founding fathers were way ahead of us. The constitution, as far as I'm concerned, is written in stone! It is not a "living document" and does not need updated!

 

[Persnickety]

The constitution is a contract between citizens and the government. A word's definition cannot change within a contract.


Bill of Rights rewrite:


Article I.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of state-approved organizations peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II.]
A well regulated Militia, being necessary to the security of a free State, the right of state-approved organizations to keep and bear Arms, shall not be infringed.

Article [III.]
No Soldier shall, in time of peace be quartered in any building owned by a state-approved organization, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article IV.

The right of state-approved organizations to be secure in the persons of their official members, buildings, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article [V.]
No state-approved organization shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any state-approved organization be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. These provisions apply solely to the collective state-approved organization, and may not be transferred to any individual member.

Article [VI.]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against it; to have compulsory process for obtaining witnesses in its favor, and to have the Assistance of Counsel for its defence, provided however that such accused is a state-approved organization.

Article [VII.]
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law, provided both plaintiff and defendent are state-approved organizations.

Article [VIII.]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article [IX.]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by state-approved organizations.

Article [X.]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to state-approved organizations.

[Article XI.]
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by state-approved organizations of another State, or by Citizens or Subjects of any Foreign State.



Yes, yes, call me paranoid and extremist and absurd. Call me what you like, but don't mess with my Bill of Rights.

P.S: For reasons I probably don't want to know, there's a bit tucked in front of the BoR that frequently gets omitted.

"The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;

Amendments 1-10 declare what a legitimate government is restricted from doing.

 

[Heraclitus]

the second amendment says "well organized militia,"

What to say to them? Well, first of all, tell them that it doesn't read "well organized militia", but rather "well regulated militia", whether it's organized or not. Then tell them that it's the judicial branch of our government that does all the interpreting.

There. You're off the hook.

 

[otomik]

Laurence Tribe

“Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one. Its central object is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state.â€

i often point out laurence tribe, he's a harvard professor that wrote a influencial textbook on constitutional law and had every liberal in this country spewing that "right of the militia" crap even years after he published a revised version with the fewpoint above.

alan dershowitz is another anti-gun law scholar that admits the true meaning of the 2nd amendment and actually says it should be repealed.

 

[Test1968]

You could also mention

that there wasn't an organized militia (National Guard) for almost 100 years after the Conitution was ratified. The Continental army was an army, not a militia. But in either event, the members would bring their own weapons, and those weapons were on par with what the Regular British Army had. And that is why (with the help of a few good generals) we won.

Secondly, some have said that is a group right and not an individual right.
The Bill of Rights enumerates indivdual rights we already have and the government cannot take away. Are all of the other 9 rights specified a group or individual rights. Freedom of Speech, Religion, search and seizure, speedy trial are individual rights, so why is the Second Amendment any different.

The Second Amendment speciifically states "these rights shall not be abridged."
Why then do we trump up The First Amendment to allow flag burining, but not the one right that allows all the others to be kept.

 

[Derby FALs]

I would go as far to say that male citizens under the age of 45, that have never learned to shoot, are breaking US Code and should be prosecuted if they resist.

 

[boofus]

Straight from Department of Justice Office of Legal Counsel

The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.

http://www.usdoj.gov/olc/secondamendment2.htm

Any Bush-haters think something like that would have come out of the DOJ under a Democrat?

 

[sendtoscott]

I've kinda used this one before. I find it astounding that people can honestly tell me (with a straight face!) that they think the Founding Fathers, after fighting a tyrannical government, while in the course of founding a limited government of the people, decided to include an amendment specifically saying the government has a right to arms

A totally redundant right for the govt - how would a Constitution w/ a NG-only 2nd differ from one without it? What possible purpose would it have served to add to a document that already authorizes a govt military another authorization for a govt military? Did the framers, when coming up w/ a BOR that was a necessary promise of limitations on govt to get the Constitution passed in the first place, really interrupt their limits on govt for a totally redundant authorization for a NG?

I don't think so.

 

[Control Group]

You know, when I read the thread title, my first response was to wonder who on earth would want only the military to have single-action guns.

I think my brain is broken.

 

[Parallax]

What if someone went back in time and told the Founding Fathers to change it so it only read:

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

Time to get started on the time machine

 

[Control Group]

You know, Parallax, that's a very interesting question.

Time to start a thread.

 

[Glocker]

how does a person jion a well organized militia if theywanted to ?

 

[UberPhLuBB]

You shouldn't have to. If I remember correctly, there is a law that states all able-bodied males age 18 to 45 (or similar ages) are automatically part of the United States Militia.

 

[Bear Gulch]

As Mr Lee said: "The People are the Militia."