The 2nd Amendment

[Randy4Candy]

Well, FUCK! Something's gone horribly wrong here.

[CuteOldGuy]

How do you think I feel?

[Sidewinder]

Originally Posted by timpage

"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."

Was this kid who shot all these 6 and 7 year olds a member of the "well-regulated militia" that the 2nd Amendment references?

As a matter of strict fact and law, he was. 10 USC 311(a) reads as follows:

"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."

Now, there is something else.

As a strict matter of English grammar, the phrase "A well regulated Militia, being necessary to the security of a free State" in the Second Amendment is what is known to grammarians as a subordinate clause. Subordinate clauses do not modify the meaning of the sentence. They merely explain. The meat of the Second Amendment, stripped of the explanatory clause, is "The right of the people to keep and bear Arms shall not be infringed."

And another thing.

Much is made in the latter part of the 20th Century about the Second Amendment declaring a "collective right" as opposed to an "individual right". Ignoring for the moment the decision in District of Columbia v. Heller 554 US 570 (2008), in which the United States Supreme Court ruled, among other things, that the right to keep and bear Arms most assuredly was an individual right, the fact is that the right to keep and bear arms goes back over 1000 years in the English Common Law, and was ALWAYS considered an individual right. See here for more details.

It should also be mentioned that every other usage of the term "the right of the people" in the Constitution and the Amendments referred specifically to individual rights.

[JD Barleycorn]

In 1781 a militia was every able bodied man between 16 and 46 years old. Very simple. That is what the words meant to the founders when it was written. Of course we would include women and we live longer so it would be pretty accurate to say that a militia would be every able bodied person between the age of 16 and 64 today.
What does well regulated mean? Once again we go back to 1781. The early Americans did not have scheduled meetings like out National Guard today but if trouble broke out the resident leader would go around and collect the men with their weapons. The weapon was up to the man. It could be a musket, a blunderbuss, or a rifled barrel long gun. Under the circumstances they did their own training when it came to shooting as putting food on the table sharpened your aim. During the Black Hawk wars the men were collected and in small unit they elected their leader; Captain Abraham Lincoln.

So a well regulated militia in 1781 terms would be every able bodied man between 16 and 64 with their own weapon and ammunition. The Brown Bess musket was the weapon of the British Army and was state of the art. Three or four shots a minute were what a professional soldier could do. Massed fire was how battles were fought. The rifled long gun became more popular and numerous in the early 19th century. A good marksman (were there any other kind in the US?) could hit a man at 300 yards. The British discovered this in the War of 1812 much to their chagrin. The lost many officers and a few generals from some well aimed shots of a commoner.

So if we extrapolate for modern times and values; every person between 16 and 64 is part of the militia and they should all maintain they own firearms up to a modern automatic weapon as they do in Norway, Switzerland, and Israel.

[essence]

Originally Posted by Randy4Candy

The quoted article goes to length about mentioning how a "well regulated militia" has become, essentially, irrevalent and goes further by posing the argument that personal ownership of firearms is unnecessary and even dangerous to the common good. It also makes an interesting point about cannons. I would liken the old school application of restricting cannons to apply to modern day weapons like *gasp* assault weapons as we would define them going forward from this point. IBSyndrome must not have read the link carefully, hmmmmm - surprising. NOT!

The rest of what you say I generally agree with and is more or less what I have said or implied elsewhere. But CoG will always reject anything I say because of geography and pre conceptions.

[Randy4Candy]

Originally Posted by essence

The rest of what you say I generally agree with and is more or less what I have said or implied elsewhere.

Well, I was trying to be facetious regarding IBH and should have probably added the "not" myself.

[Guest123018-4]

I have explained this before.
First understand what the word "regulated" means in the era it was written.
Second, read the Constitution and understand that it is a complete document that woeks not in part but as a whole.
Third, find the part that says a standing army shall not be funded for a period of more than two years. also check out the part that requires the government to maintain a navy.

did you do all of that?

The founders fully understood that maintain a standing army would be very expensive and the new government did not have the money to do so. Further, since one of the primary reasons that the new government existed was because of unjust taxes, the founders did not want to saddle the citizens with taxes in order to equip a large standing army.
So the question becomes how do we defend ourselves until we can muster an army. The answer was a well regulated militia which in simple terms means a citizenry that has plenty of arms and ammunition. The government bears no cost in arming the citizens until an army and the armaments can be mustered and the army trained. The people are the first line of defense against all forms of attack.

Notice that they used the words "free State" in the second ammendment. Some would infer that this also means the ability to defend ourselves for the establishment of a tyrannical government that could very well be our own. It did not say a free Nation or a free Republic.


Way too much of this amendment is attempted to be interpreted using terms that are not the same as what they meant in the late 1700's. One thing that does stand out and connot be fefuted is the last part. "the right of the PEOPLE to keep and bear arms, SHALL NOT BE INFRINGED". This is the right of the people. It does not say the right of the militia.

This is just as simple as the 1st amendment that does not say a word about separation of church and state.

[SpeedRacerXXX]

Ridiculous argument. The SCOTUS has made 2 recent rulings, as cited, that have determined that the 2nd Amendment applies to citizens and gives them the right to possess firearms. No ifs, ands, or buts. However, 2 points need to be made:

1. The fact that cases like this make it all the way to the Supreme Court points out how difficult it is to interpret the true meaning of the 2nd Amendment. Forgetting politics, don't forget that the vote was 5-4 in favor of the ruling.

2. The majority judges in their ruling on McDondald v Chicago made it clear that the ruling in no way affected the legality of the state's rights regarding other gun control laws such as CHLs.

[essence]

The devil is in the detail.

To take some bits from my lengthy excerpts above:

Whatever right there is to possess firearms is no less important than the right of every American, gun owners included, to protection against the possession of guns by persons who by any reasonable standard lack the crucial credentials for responsible gun ownership.

There is no absolute constitutional right of an individual to possess a firearm.

In the last angry decades of the twentieth century, members of rifle clubs, paramilitary groups and other misguided patriots continue to oppose legislative control of handguns and rifles. These ideological heirs of the vigilantes of the bygone western frontier era still maintain that the Second Amendment guarantees them a personal right to "keep and bear arms."

In short, there may be a right to keep and bear arms, but it is not absolute, it is not a guarantee, it is not universal, and it must be balanced with other rights.

The issue whether the right to keep and bear arms is associated with personal defense or associated with the need to have a well regulated militia available when needed against tyrannical governments is maybe not so important.

What is important is common sense.

[LexusLover]

Originally Posted by SpeedRacerXXX

1. The fact that cases like this make it all the way to the Supreme Court points out how difficult it is to interpret the true meaning of the 2nd Amendment. Forgetting politics, don't forget that the vote was 5-4 in favor of the ruling.

Not necessarily. The close decision might entice someone to take a case up on a similar point with the aspiration of persuading a vote to shift sides or to persuade the support of a new member on the Court to swing the interpretation in a different direction.

Sometimes changing political winds spawn the belief that the Court will change its mind.

[SpeedRacerXXX]

Originally Posted by LexusLover

Not necessarily. The close decision might entice someone to take a case up on a similar point with the aspiration of persuading a vote to shift sides or to persuade the support of a new member on the Court to swing the interpretation in a different direction.

Sometimes changing political winds spawn the belief that the Court will change its mind.

I don't disagree with you at all. In fact I totally agree with you. Again not wanting to turn this into a political discussion, the vote in McDondald v. Chicago was fairly easy to predict. 5 judges who had historically favored gun rights issues and 4 judges who had not. But you never know on a different issue.

[Sidewinder]

Originally Posted by SpeedRacerXXX

Ridiculous argument. The SCOTUS has made 2 recent rulings, as cited, that have determined that the 2nd Amendment applies to citizens and gives them the right to possess firearms. No ifs, ands, or buts. However, 2 points need to be made:

1. The fact that cases like this make it all the way to the Supreme Court points out how difficult it is to interpret the true meaning of the 2nd Amendment. Forgetting politics, don't forget that the vote was 5-4 in favor of the ruling.

2. The majority judges in their ruling on McDondald v Chicago made it clear that the ruling in no way affected the legality of the state's rights regarding other gun control laws such as CHLs.

District of Columbia v. Heller originated in Washington DC. The local court ruled against Heller. Heller appealed. The DC Circuit Court of Appeals ruled in Heller's favor. The District of Columbia appealed. At that point, the Supreme Court looks at the case, and one of three things could have happened. 1) The Supreme Court could have declined the case, leaving Heller's victory intact, but not delivering a strong message. 2) The Supreme Court could have taken the case, and ruled against Heller, declaring that there was not an individual right to keep and bear arms. Or, as actually happened, 3) The Supreme Court could take the case and rule that there was such an individual right.

From the syllabus (summary) of the decision:

Held:

1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation
of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved.
Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous armsbearing
rights in state constitutions that preceded and immediately
followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms.
Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual
rights interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

There's more, of course, but this will get you started.

It isn't that it was difficult to rule. It was that the Supreme Court has been waiting for the right case. There have been several cases prior to this one that were appealed to the Court: those cases all had problems.

As the Court observes, the history of the 2nd Amendment makes it clear that it was always intended as an individual right.

[Randy4Candy]

Ya know, I doubt very much that The President for Four More Years, or anybody else for that matter - well, except for the 1%-2% on the radical hard left fringe, and maybe a few far righties for other reasons - wants everybody's guns. That part of the conversation is really over and has been for quite a while. Of course, as with everything else, a lookout should be kept for REAL moves that would REALLY infringe on our ability to protect ourselves with firearms.

But, I'm not signed onto anyone having a .50-cal machine gun nest on the front porch, RPG attachments for their AR-15s or AK-47s, and other suchlike silliness. Now, if we want to squeeze of a couple of thousand rounds in 10 minutes just for the pure fu*king rush, let's go to some range that caters to that fantasy and rent a little fun, much like we do here in the hobby.

[Guest032516]

Looks like Timpage stopped asking his "Three Questions of Death".

I guess this one is over then?

[JD Barleycorn]

Candy ass, you want to cite some of those Supreme Court decisions that have changed the original interpretation?

Congresswoman Sheila Jackson Lee has come out against all guns. Different Jackson than over the weekend.