View Full Version : Stupid esoteric 2A question

08-26-2008, 12:37 AM
Hearing some talk about the possibility that she'll be McCain's VP nominee, I was looking for videos of Kay Bailey Hutchison on YouTube and found this:


Fast forward to ~2:20.

Speaking about the anti argument that the Second Amendment is a collective right that allows states to field militias, she says "[The Framers] didn't intend for [the Second Amendment] to be a collective right. If they had, their purpose had already been served. In Article I of the Constitution, Congress has the power for calling forth a militia to execute the laws of the Union, and suppress invasions. "

In the wake of Heller this is strictly academic, but is she right? I agree with the conclusion she arrives at later in the speech, but I'm not sure I agree with how she got there. Seems like she's talking apples and oranges. Obviously the antis are talking about the National Guard, and she's talking about the US Armed Forces.

08-26-2008, 6:25 AM
No... Shes right... She is referring to the Militia Clauses of Article 1 section 8, (clauses 15 & 16) which are completely separate from the Army/Navy clauses (clauses 11, 12, 13 & 14).

If you read Heller, you will see that the Court spends a great deal of time on discussing the power of the Militia clauses, and how the 2nd Amendment becomes POINTLESS if its only purpose is to arm the MILITIA. Congress has the power to call forth and organize the Militia. Therefore it has the power to DISSOLVE the Militia as well. The power granted to Congress by the Militia clauses can not be reconciled with the restrictions placed on Congress by the 2nd amendment, if its interpreted to be a collective right...

Thus, when the Constitution says the right of the PEOPLE to keep and bear arms, THE PEOPLE is what it means. Not the states, and not people in a militia that Congress has the power to disband and disarm.

08-26-2008, 7:25 AM
RomanDad's right. It's also worth pointing out that the argument that "the Second Amendment applies to the militia, and the militia is the National Guard" argument is weakened by the fact that Congress has organized the National Guard under its power to raise and support armies (what RomanDad calls "the Army/Navy clauses") rather than under the "Militia clauses." That lets the feds deploy the National Guard for purposes beyond what they're authorized to use the militia for. The federal government may call up the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions. The National Guard gets deployed for all kinds of other missions, like overseas "peacekeeping."

08-26-2008, 11:29 AM
Very informative answers. Thanks guys.