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I am not against the Second Amendment in its entirety but I feel that it is seriously misinterpreted by a great many individuals over the years. Here is the text as reprinted from my encyclopedia:
"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"
Notice the first part says that if a militia is formed, it has to be well regulated which means it ought to be officially sanctioned by the government. I sincerely doubt that is always the case these days. My biggest gripe is how some communities allow ordinary people, not police, to openly carry guns out in the public even in the name of self-defense. That's how we have these self-declared fringe groups that are not part of the National Guard or any official police force just walking around in public with loaded semi-automatic rifles in many states. Then we sometimes even have individuals walking around openly with handguns claiming self-protection once again. There you have a gray area where if the individuals discharge their weapons, some will argue self-defense while others will argue unnecessary offense. All of this could be avoided if only police and military get to openly carry arms while on duty and ordinary citizens including off-duty police can only use concealed firearms to protect their homes or businesses but not discharge them on public streets. I don't think that would violate the Second Amendment at all, it's just a tighter interpretation. What do others think?
Moderator's Caveat:
This could be a very interesting topic, as there are many who have an interest in how our Constitution is interpreted.
I'm laying down a few ground rules for this debate, however, for all who choose to participate:
1. Support your interpretation of the Constitution with authoritative sources.
2. Stick to the original premise posed regarding Constitutional interpretation. Do not resort to bringing in provocative pro-gun or anti-gun headlines from the news or YouTube videos in order to make an emotional appeal.
3. Do not attempt to derail this topic into a Liberals vs Conservatives vs Democrats vs Republicans free-for-all.
Thank you.
Lol. A guy with a posted location of Boston where the original Tea Party happened is complaining about the bill of rights.
You need to understand that the language used...was the language used at the time. A free state encompasses everything from a country down to your postage stamp of a property. A militia was common people farmers tradesmen etc. See back then people had common sense. They didn’t need everything specifically stated down to the last minutiae.
Arms was a gun. Blunderbuss, flintlock, matchloch whatever. It was arms. Today arms are different but still arms. Ok I’m a Militia of one member. And I have my arms.
To me it means keep your hands off my guns in whatever form they take. Period.
Let's get this out of the way so that we can focus on the 2nd Amendment's meaning.
What is the militia?:
10 U.S. Code § 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.
This law establishes a minimum age of 17. The "under 45 years of age" does not exclude those older than 45, just removes the compulsory obligation. Same for females; not excluded, just not mandatory to be a part of the militia.
The important distinction is that the state's National Guard (formerly State Guard) is not the only militia, as some have tried to interpret in this forum.
I have a sneaking suspicion that the Federalist Papers pre-date 10-USC, and of course statute does not trump the Constitution.
In regard to the formation and management of a militia, please note that Hamilton's intent was that there should be a certain amount of government involvement (divided between Federal and State) in this undertaking: "It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union 'to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.' " (Quoted from The Federalist No. 29, "Concerning the Militia" -- upper case quoting is not mine, but Hamilton's instead, presumably for emphasis.)
I think this settles the matter. Let's see who opposes now, and why.
While I don't deny that the meaning of words can change over time, those suggesting a change of meaning in this instance, keep doing so without providing any evidence in support. If I was a cynic I might say they've been listening to too many faery tales from the gun lobby.
The Second Amendment guarntees an individual right to keep and bear arms. It has absolutely nothing to do with the militia, and "well regulated" is irrelevant. By the way, when the Founders wrote "well regulated" it simply meant "well trained", not some formalized military group. Well regulated simply meant well trained and well provided for.
There was much debate about including the militia clause or not for this very reason. That is why there are so many quotes about "what is the militia". It was not a foregone conclusion that they were going to include the militia clause in the amendment.
Virginia debated the militia and 2nd Amendment separately. The first was in the Ratifying Convention of 1788; the second was when the Bill of Rights was debated in 1791.
Virginia established the militia in 1607 an it has kept a militia since then. Today, every resident of the Commonwealth, male and female between 16 and 55, is still by law enlisted in the unorganized state militia, VA Code § 44-4. It is part of the Commonwealth's defense: the unorganized state militia, the National Guard and the Virginia Defense Force.
Well regulated is not irrelevant. In Va. at least its key. Militia day, before the Revolution, was a day for drinking, socializing and maybe a bit of drunken mustering. The point of that clause being in there was to make it a professional force. "An act for regulating and disciplining the Militia," passed on May 5, 1777 in Virginia specified what constituted a well regulated militia.
For govt to be involved with the militias would be a huge conflict of interest!
^
Quote:
Originally Posted by Rachel NewYork
Whose interest? That of the U.S. citizenry who vote for our government representatives -- or that of disgruntled individuals of whatever political persuasion who have decided to take the law into their own hands?
I think what that poster was saying, is that the FF's worried about what would happen if the federal/national government were to authorize/build a standing army. It could be used by a tyrannical government run amok to destroy the constitutional republic they bestowed upon us.
That essentially mirrors my understanding of what the FF's worried about and articulated.
Granted we (through our representatives) eventually authorized a federally controlled standing army for the purpose to deal with threats outside of our country.
Yet some day in our future, if that army (and other branches) were used against the citizenry to carry out "orders" from a tyrannical federal government, say to abolish our constitution, they would say "see we warned you".
Fortunately since the 2nd Amendment provides for the individual right to own firearms, America's citizenry is the most well armed free people on the face of the earth.
Even if the combined forces of all branches of the federally controlled military were aligned against us, short of using WMD's, the military members would be far outnumbered.
That is not even taking into account those military members that would refuse orders to fire upon American citizens, and those who would leave their positions and take their weaponry with them.
I love how "non-ugly" this thread has largely been. The information explains both sides of the interpretation in a civil fashion. I almost did not read, because I was afraid of it getting nasty. Instead, everyone was cool. I learned a lot.
I love how "non-ugly" this thread has largely been. The information explains both sides of the interpretation in a civil fashion. I almost did not read, because I was afraid of it getting nasty. Instead, everyone was cool. I learned a lot.
Ditto. I think I have constitutional knowledge a blip or two above the norm, and I love listening to SCOTUS oral arguments, among other things, while I’m out on the road in my 18 wheeler. The folks in this thread make me feel like a rube, and in all the best ways. I might put in a vote for this as thread of the year.
I think what that poster was saying, is that the FF's worried about what would happen if the federal/national government were to authorize/build a standing army. It could be used by a tyrannical government run amok to destroy the constitutional republic they bestowed upon us.
That essentially mirrors my understanding of what the FF's worried about and articulated.
Granted we (through our representatives) eventually authorized a federally controlled standing army for the purpose to deal with threats outside of our country.
Yet some day in our future, if that army (and other branches) were used against the citizenry to carry out "orders" from a tyrannical federal government, say to abolish our constitution, they would say "see we warned you".
Fortunately since the 2nd Amendment provides for the individual right to own firearms, America's citizenry is the most well armed free people on the face of the earth.
Even if the combined forces of all branches of the federally controlled military were aligned against us, short of using WMD's, the military members would be far outnumbered.
That is not even taking into account those military members that would refuse orders to fire upon American citizens, and those who would leave their positions and take their weaponry with them.
`
That's putting it in a good perspective! Although, with power divided between Federal and State government, individual States would naturally have some say in the use of their militias against a tyrannical takeover by any leader in the Federal government using the military for his personal enforcement.
There is a logical reason why this amendment came right after the first one protecting free speech so the Founding Fathers obviously believed it was very important to the individual.
Actually, when submitted to the states for ratification, the 1st as we know it was actually the 3rd Article, and the 2nd, the 4th. As submitted, Article 1 and Article 2 were not ratified then. 1 and 2 laid out NO individual rights. So, imo, the listing order was not a factor of importance.
Quote:
And as I said before, I may agree with the decision but my opinion is pointless because the Heller case is only one decision in which 4 out of 5 justices dissented.
When the Court was first organized, it only had 6 Justices. If there was a tie, they would haggle it out. If it still was 3 - 3, that meant the lower court decision would stand.
When Heller was decided, Stevens was the only Justice who did not partake in the Certiorari Pool, just as a side note.
The question, is concerning Heller, how many votes were to grant Certiorari, at least 4 votes were required, but was it 4-5-6-7-8-9? The info is out there somewhere.
I once read an article where a legal scholar analyzed who voted to grant certiorari and also how they voted for the decision. Who voted to grant, were they for or against in their minds?
The link has a transcript of a discussion this evening on militias with Mary McCord, a constitutional law prof, former asst. AG, and legal director of the Institute for Constitutional Advocacy & Protection. 3M read. Make sure you read as far as the reference to the 1886 & 2008 SCOTUS decisions.
Last edited by Rachel NewYork; 08-31-2020 at 07:39 PM..
Reason: Fixed link
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