View Full Version : Scope of 2nd Amendment's Questioned

02-01-2007, 1:50 AM
“In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday (12-7-06) that the Second Amendment right to bear arms applies only to militias, not individuals.” According to The Associated Press, “At issue in the case before a federal appeals court is whether the Second Amendment right to ‘keep and bear arms’ applies to all people or only to ‘a well regulated militia,’” pointing out, “If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the amendment's scope.”

A decision on the scope of the 2 Amendment by the USSC could either be really good or really bad for gun rights in this country.

However, I for one would like the Supreme Court to make a ruling once and for all that will define the 2nd Amendment so that there is no leeway to viewing it one way or another since cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments.

Is it worth the risk?

02-01-2007, 1:59 AM
I say it is worth the risk. The supreme court is mainly pro gun with the 2 new ones put on the court. Machine gun Alito is on our side :-)

02-01-2007, 2:01 AM
Search is your friend.


LAK Supply
02-01-2007, 7:12 AM
If they interpret it in the language of the time, and/or read the rest of the pertinent writings of the founders we'll be in good shape.
You never know though; it could go either way. All it takes is a few who have a personal agenda against the 2A to have big problems.

02-01-2007, 7:47 AM
I really don't get that these *****hats can't comprehend the written word.
If "the people" MEANS the "people= everyone" in all the rest of the BOR, then why wouldn't it mean "everyone" or every "individual" in the 2ND Amendment.
ANY reasoning mind should be able to comprehend that, then again, maybe I'm giving the MSM and the dumbicrats too much credit here...........

02-01-2007, 9:15 AM
The idea of the Right to Bear Arms being a "collective" right wasn't introduced until the middle of the 20th century. I believe the majority of the Justices know that, and won't buy it. Also, I spent 6 years in the National Guard- the Guard and reserve are NOT militias. A militia by definition is INDIVIDUALS using their PRIVATE arms.

02-01-2007, 9:26 AM
All the anti-gunners like to say "you're forgetting the 'well regulated militia' part..."

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.

if you look at it logically, what is this sentance saying? It points out that a militia is necessary for the security of freedom. What's a militia? Militia is the activity of one or more citizens organized to provide defense or paramilitary service, or those engaged in such activity. so what this sentance is saying is: since Militias are important, and citizens form militias, citizens shall be allowed to own weapons should they need to form a militia.

If it was meant to say only militias may have weapons, it would read "the right of the Militia to keep and bear arms shall not be infringed"

And you'll hear a lot of people say "militias aren't necessary anymore". Bull ****. Imagine this: major quake hits the Bay Area. Looters are running amuck. Your neighborhood has a neighborhood watch program. Your neighborhood watch decides to arm itself and patrol the neighborhood to ward off looters. Your neighborhood watch just became a "neighborhood militia"...

02-01-2007, 9:38 AM
I say it's worth the risk. If they rule it is not an individual right, then we know where the court (and the government at large) stand regarding ALL of our inalienable rights.

That might finally wake people up and then who knows...it might finally be "showtime."

02-01-2007, 12:48 PM
Incorrect. If you use the search function, you will find the actual definition of militia, which is somewhere in federal law from the early 1900s. A quick summary: There are two types of militias. The organized militia comprises the national guard and similar organizations. The unorganized militia is all citizens (I think in the original law it still says men) of an age suitable for bearing arms. So the national guards are very much defined by law to be militias.

Thank you. I stand partially corrected, but in doing so you have strengthened my point. You state that this definition is found in federal law from the early 1900s. You are probably referring to The Militia Act of 1903 which prescribed Federal standards for the Guard. These standards required that the Guard was to be organized, trained and equipped according to regular Army standards (emphasis is mine).

Point 1. By 1900 the Guard had become a regular military organization- albeit of part-timers- very unlike the militias of the late 18th century. This type of militia organization did not exist at the time the Bill of Rights was written, therefore the 2nd Amendment could NOT have included this in its meaning.

Point 2. Once the Guard was "organized, trained and equipped according to regular Army standards" it could no longer be considered what the framers referred to as a militia.

Therefore, the 2nd Amendment does not in the term "militia" refer to what is today the National Guard, notwithstanding the current definition of the term militia, as defined in The Militia Act of 1903, of which you were absolutely correct in your response.

In summary, and hopefully more accurately than in my first post, the National Guard is NOT a militia, as the term militia was used by the author's of the 2nd Amendment.


p.s. I am very proud of, and thankful for, the 6 years I served in the 1Bn 210th Armor, New York Army National Guard, a unit that has unfortunately been disbanded :(

02-01-2007, 1:40 PM
mi·li·tia /mɪˈlɪʃə/ Pronunciation Key - Show Spelled Pronunciation[mi-lish-uh] Pronunciation Key - Show IPA Pronunciation
–noun 1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

02-01-2007, 1:48 PM
It is certainly worth the risk. 7 out of the 9 sitting justices are currently Republican appointees, and the Chief Justice is John Roberts, the recent Bush appointee. If this court finds that the 2nd amendment only applies to the National Guard (I say that to draw a distinction between the NG and Hamilton's and Madison's militia), then I'm willing to accept it, since I'm not a constitutional scholar, although I have read the Federalist Papers.

Having said that, I don't think this Court is going to find that the 2nd only applies to the National Guard. For if it did, that would mean a whole host of minor medical maladies are disqualifying from the right to keep and bear arms, as well as homosexuality and a high school diploma, etc....

For example, gays have talked about using the 2nd to force admission to the National Guard. Other examples include flat feet, being overweight, missing digits, etc. It doesn't help our cause, but at least it illustrates the range of issues that would result from such an interpretation.

02-01-2007, 5:37 PM
Lets clear up a few misconceptions here....

The National Guard is the OLDEST fighting force in this land....been fighting for hundreds of years. Since the 1600's.

The term "National Guard" and "Militia" were synonymous throughout most of this country's history. It was not until the State Militia's, the National Guards, were federalized with the Dick Act in 1903, with the creation of the National Guard Bureau, that they gained federal status.

Prior to this act in 1903, The National Guard were the State based ORGANIZED militia and everyone else consisted of the UNorganized militia.

In 1916, with the National Defense Act, the National Guard was placed under the control of the Federal Government.

It is no coincidence that Congress, again in 1916, decided they needed to clarify who the militia, both organized and unorganized, consisted of since they were changing some of the nations traditions in terms of names/definitions.

They passed 10USC311 which states....

Sec. 311. 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

This makes it clear that INDIVIDUALS still make up the UNorganized militia. We are NOT under the control of the State or the Federal Government unless called upon...otherwise we would be called the National Guard.

This is just one layer of the fraud....it doesn't even need to get this far....

EVERYTHING in the Bill of Rights consists of INDIVIDUAL rights...that is why they are there....they are UNalienable rights...not privileges.

Furthermore, when the Founders lived and wrote the Constitution they only knew the militia to consist of individuals on a State basis(National Guard)...and even then they had an unorganized component.

How could they, the Founders, have known that over 100 years later the Feds would take control of the National Guard?

How could they have known that idiots in the future would even question an individuals right to bear arms?

This is all spelled out and clear as a spring day for those that want to just learn about it. The dates all match..etc..etc....the path of logic is pretty easy to follow.

The problem arises when people with an agenda, 2nd Amendment deniers, already have their conclusion and pick and choose definitions to match their preconceived notions.

When I was in college, 13 years ago, I demolished a poor student when we debated this very subject. It was Lincoln-Douglas style so you must address each others claims specifically....he couldn't even come close.

02-01-2007, 6:21 PM
Incorrect. If you use the search function, you will find the actual definition of militia, which is somewhere in federal law from the early 1900s. A quick summary: There are two types of militias. The organized militia comprises the national guard and similar organizations. The unorganized militia is all citizens (I think in the original law it still says men) of an age suitable for bearing arms. So the national guards are very much defined by law to be militias.

Getting back to the original question, I personally see great risk in this lawsuit. One nasty outcome might be that the SCOTUS says that the 2nd amendment indeed applies only to organized militias (unlikely given the current makeup of the judges, but perfectly compatible with a lot of legal scholarship from the 20th century). Another even nastier outcome might be that the SCOTUS says that the 2nd amendment fully protects all individual gun ownership, and with a stroke of a pen wipes out all gun control laws. Since the societal consensus today calls for some gun control (for example NFA weapons and prohibitions for felons), the backlash to such a decision could wipe out the 2A.

On the other hand, there is great opportunity in this lawsuit. Gene (hoffmang) has pointed it out eloquently: A reasonable decision of the SCOTUS might say that the 2A creates an individual right, that can only be restricted with very good justification, such as NFA and felons. Such a decision might wipe out just the gun control that most annoys us, such as the CA handgun roster (SB15) and the CA AWB, because it can not be justified as a narrow exception.

Required bad joke: Some guys say the glas is half full, the others say the glas is half empty. The engineer in me says that the glas was overdesigned by a factor of two.
I'm not arguing with what you're saying, but do you actually believe the NFA has a very good justification for being there? I think it limits exactly the type of arms we are supposed to have.

02-01-2007, 6:40 PM
Since when does the Government have the ability to regulate my rights?

Rights cant be regulated....only priviledges can.

02-01-2007, 9:22 PM
From a 2A point of view, correct. But that's not the argument. The restriction against felons owning guns aren't derived from the 2A point of view either, since felons would make perfectly fine members of the militia, considering their abilities. What these other restrictions seem to indicate that in special cases, other considerations (such as safety of many members of society) can override the 2A. In the same fashion as divulging classified information and yelling "fire" in a crowded theatre are public safety considerations that override the 1A.

The argument for the NFA prohibition derives exactly from public safety: from the experience of the gang wars during prohibition, it seemed logical at the time to restrict full auto weapons and concealable shotguns. That's why many (see posts by hoffmang) think that the NFA prohibition would survive an individual right 2A ruling.
I think the problem is that almost all gun laws are supposedly for "public safety". Any firearm could be theorhetically put under NFA type rules if public safety is the only determining factor. .50BMG = too powerful, .22 and other subsonic rounds = too easy to suppress, .380acp & 9mm = choice of gang members, etc, etc.

Just take for example your exact words with a few changed " The argument for the NFA prohibition derives exactly from public safety: from the experience of the gang wars during the 90's, it seemed logical at the time to restrict semi auto weapons and concealable handguns."

I realize that you obviously don't think this would be a good idea but if certain firearms could be put under NFA for "public safety" reasons and it seems justified, why not be able to add more for the same reasoning?