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Hippies_Have_Guns_Too
07-20-2012, 8:35 PM
I posted this in another thread in the off-topic lounge. I think it belongs here in the 2nd Amend forum.

---





I do not believe the second amendment protects our right to keep & bear arms.

Allow me to elaborate:


"The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence"

-- SCOTUS (1875)




"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."


Words we all here are familiar with. But what do they actually mean? Well, I am not going to profess that my point of view on this matter is 100% the last word. However, I do believe my point of view to be academically correct on the basis of the laws I am going to cite below. This is from a post I posted years ago on a Democratic forum.

First of all if we look at the second amendment we see that it is composed of two statements which some folks (from both sides of this argument) see as contradictory. On one hand it appears to affirm the right of the people to possess and use their own firearms. On the other hand it appears to affirm only the right to possess and use firearms in the context of a well regulated militia such as the state's national guards.

Which ever one of these two ideas you believe to be the case, it still leaves this amendment appearing to be ambiguous. Well, I don't believe the founders would publish a right which was ambiguous.

If we look at the first part of this amendment we can clearly see this amendment is dealing with a military type action. A well regulated militia being necessary for our national security certainly is expressing a military type action. However, the second part of this amendment clearly states that the people have the right to keep and bear arms. Is there a way these two seemingly opposing thoughts can coexist without ambiguity? Yes.

If we look at the U.S. Code Law 10 USC 311 (http://codes.lp.findlaw.com/uscode/10/A/I/13/311/)


Militia: composition and classes 10 USC 311 (http://codes.lp.findlaw.com/uscode/10/A/I/13/311/)

(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.



What we see is there are two classes of what defines "Militia" and only one of them is defined as a National Guard. The other one is defined as all able-bodied males between the ages of 17 - 45.

So in other words I believe the second amendment protects the right of both classes of militia to keep and bear arms for national security (military) type reasons.

So does this mean that women not in a National Guard or men older than 45yrs cannot possess and use their own firearms? No

Referring back to the US Supreme Court quote I posted above. The right to keep and bear arms is not a right granted by the second amendment, nor is it dependent upon it for its existence. In other words the US Supreme Court stated all the way back in 1875 that the right to keep and bear arms is a HUMAN RIGHT.

This statement by the Supreme Court is important in my opinion not only because it states a truth, but, also, because it corroborates the point I am making that the second amendment is about declaring the right of the "militia" (National Guards -and- all men 17 to 45) to keep and bear arms for the purpose of national security, and as we will see below, it appears that the militia is not only expected to show up bearing their own arms, but, also of the type "in common use". In other words today that means M16's.




Supreme Court Cases


The SCOTUS case I cited above is: U.S. v. Cruikshank, 92 U.S. 542 (1875) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=92&invol=542)

U.S. v. Cruikshank was a case which involved the KKK suppressing black folks from their right to freely assemble and to bear arms. The Supreme Court in this case ruled that because the 1st and 2nd amendments applied to the federal government and not to the states; citizens had to "rely on the police power of the states for their protection from private individuals.

However, the Supreme Court also ruled:


The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called..."internal police."



The next important Supreme Court case is: Presser v. State of Illinois, 116 U.S. 252 (1886) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&linkurl=%3C%LINKURL%%3E&graphurl=%3C%GRAPHURL%%3E&court=US&case=/data/us/116/252.html)

In Presser v. Illinois the Supreme Court ruled that the states had the right to regulate private military groups. Presser also reaffirmed the earlier Cruikshank decision that the Second Amendment is a restriction upon the federal government and not the states.

Nevertheless, Presser is important because the Supreme Court also ruled that the states could not write laws prohibiting the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."


It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.



Next important Supreme Court case we have is: U.S. v. Miller, 307 U.S. 174 (1939) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174)

The Miller case is a case often cited by the anti-gun crowd as proof against private gun ownership. Well, I am very sorry for all those who believe that the Miller case ruled that citizens are not guaranteed the right to private ownership of firearms. The Miller case doesn't make any such ruling. What the Miller case rules is that a sawed-off shotgun doesn't constitute "ordinary military equipment or that its use could contribute to the common defense." Therefore "it cannot be said that the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument (sawed-off shotgun), or that the statute violates such constitutional provision."

Also, pay attention to the language SCOTUS uses in these next quotes. Remember above I said I believe the second amendment means a right to own arms of the type "in common use". In other words today that means M16's? Here you go:


In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.




The Miller case also brings up some other interesting rulings. And to better understand these rulings requires knowledge of the U.S. Code I posted above with respect to the definitions of the militia.


The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.




Its important to note that the Supreme Court only required evidence that a saw-off shotgun contributed to the efficiency of a well-regulated militia. They did not however ask the question if whether or not the defendants had to belong to a well regulated militia.

Now given this fact and interpreting Miller with its references to "ordinary military equipment", "Militia comprised all males physically capable.....", and citizens "expected to appear baring arms (of the 'ordinary military equipment') supplied by themselves and of the kind in common use at the time (today the M16 or the M4).

Taken into context with the U.S. Code on "Militia composition and classes" and its definition of all able-bodied males between the ages 17 to 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States.

And further taken into context with the Cruikshank and Presser cases. It is my opinion the Supreme Court has held that the second amendment protects the right of all able bodied men of correct age to privately possess the common military weapon of the time and that other firearms are not protected by the 2nd amendment --BUT!-- that the right to keep and bare arms is a human right that existed prior to the constitution and as such is not reliant upon that document.


http://www.jonrb.com/emoticons/shoot.gif

http://www.smileysnetwork.com/armes/arme02.gif

a308garand
07-20-2012, 8:37 PM
You are wrong.

taperxz
07-20-2012, 8:38 PM
It's not our fault you don't understand English or court decisions.

thayne
07-20-2012, 8:41 PM
Whats with all the trolls today?

Hippies_Have_Guns_Too
07-20-2012, 8:42 PM
You are wrong.

Highly doubt you read it because your response first of all was too fast to have read it, and its not anti-gun rights, its pro-gun rights.

But then again, maybe you did read all that in less than two minutes and maybe you don't believe we have the right to own firearms.


;)

fighter4cage
07-20-2012, 8:44 PM
Well, If Obama gets re-elected and makes more Supreme Court appointments I am sure they will interpret the 2nd amendment just like you....

Hippies_Have_Guns_Too
07-20-2012, 8:45 PM
Whats with all the trolls today?

Hmmm, so posting differing opinions constitutes trolling?

:rolleyes:

thayne
07-20-2012, 8:46 PM
Heller vs dc
mcDonald vs Chicago

/thread

barbasol
07-20-2012, 8:47 PM
Ahhh, like so many sushi chefs, you cut a fish in your special way. Your special way is not necessarily right or commonly accepted. Thanks for at least citing some facts

taperxz
07-20-2012, 8:48 PM
Regardless of your opinion. Your findings in the cases above are not accurate. You are citing bad case law. See heller and McDonald

sandman21
07-20-2012, 8:48 PM
It's not our fault you don't understand English or court decisions.

Really......


And further taken into context with the Cruikshank and Presser cases. It is my opinion the Supreme Court has held that the second amendment protects the right of all able bodied men of correct age to privately possess the common military weapon of the time and that other firearms are not protected by the 2nd amendment --BUT!-- that the right to keep and bare arms is a human right that existed prior to the constitution and as such is not reliant upon that document.


http://www.jonrb.com/emoticons/shoot.gif

http://www.smileysnetwork.com/armes/arme02.gif

taperxz
07-20-2012, 8:50 PM
Hmmm, so posting differing opinions constitutes trolling?

:rolleyes:

NO! Posting misinformation as fact is though. Moleculo

dantodd
07-20-2012, 8:51 PM
Heller vs dc
mcDonald vs Chicago

/thread

This. Heller and McDonald bothe supersede Cruikshanks, Presser and Miller where there is any discrepancy.

The factual errors in Miller are largely because no one even showed up at orals to argue Miller's case.

taperxz
07-20-2012, 8:52 PM
Really......

YES really! The 2A applies to everyone not just men of certain ages.

eaglemike
07-20-2012, 8:59 PM
I'm pretty sure a few here missed the point.

The implication is that the right pre-exists the COTUS. Right to self-defense, etc is inherent.

GOEX FFF
07-20-2012, 8:59 PM
Now's a good time for everyone to watch this -

7RgLEGibyXs

db.40
07-20-2012, 9:00 PM
To the op:

"the defense of ones self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defense is not confined merely to the person; it extends to the liberty and property of a man: it is not confined merely to his own person; it extends to the person of all those, to whom he bears a peculiar relation- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of everyone who is in danger; perhaps, to the liberty of everyone, whose liberty is unjustly and forcibly attacked." -James Wilson

"if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements, for people who decide to wait for these will have to wait for justice too- and meanwhile they must suffer injustice first." -Cicero

"the people of America would be highly displeased at being debarred the privilege of carrying arms, tis our duty to prepare against contingencies, and to provide the means for every man to protect himself as well against tyranny and usurpation, as against assault and invasion." - Andrew Jackson

otalps
07-20-2012, 9:01 PM
I'm pretty sure a few here missed the point.

The implication is that the right pre-exists the COTUS. Right to self-defense, etc is inherent.

The pre-existing part of the right in the OP is true. The ambiguity of the amendment as written is not.

taperxz
07-20-2012, 9:01 PM
Hmmm, so posting differing opinions constitutes trolling?

:rolleyes:


This statement is from Moleculo! He is trolling with another screen name. IMHO

Chosen_1
07-20-2012, 9:02 PM
I do not believe the second amendment protects our right to keep & bear arms.

--BUT!-- that the right to keep and bare arms is a human right that existed prior to the constitution and as such is not reliant upon that document.


Basically, you cut out all the bad court cases, and you get what he is trying to say (I think?) :shrug:. He is saying the 2A is just a written expression of an inalienable right?? What's wrong with that?

Hippies_Have_Guns_Too
07-20-2012, 9:03 PM
I'm pretty sure a few here missed the point.

The implication is that the right pre-exists the COTUS. Right to self-defense, etc is inherent.


THANK YOU eaglemike. I too am certain a few here completely missed the point of the OP. Thanks for actually taking the time to read it.

Lifeon2whls
07-20-2012, 9:06 PM
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.

Another way for you to read this would be to consider that the founders of this country saw the need to "watch the watchers".

A well armed populace is necessary in order to regulate the militia and that is how we keep our country truly free, rather than being run by tyrants, military dictators and so forth. Don't forget this was written right after we over turned our previous rule by the British and how else would that have been done if we were not armed. The second amendment IN MY OPINION really has little to do with keeping citizens "minutemen" but rather the balance of power for government which is corruptable and always seeking more control.

taperxz
07-20-2012, 9:07 PM
THANK YOU eaglemike. I too am certain a few here completely missed the point of the OP. Thanks for actually taking the time to read it.

Regardless, you do not understand what you think you know. All out of context.

thayne
07-20-2012, 9:08 PM
THANK YOU eaglemike. I too am certain a few here completely missed the point of the OP. Thanks for actually taking the time to read it.

No, the point is your thread title is completely false and when you do that most people will ignore the rest of your post. especially when you leave out the two cases that matter most.

wpayne
07-20-2012, 9:08 PM
My opinion:
First, you are supporting your hypothisis with laws and decisions that came after the Bill Of Rights, which is your first mistake. I think you have to analyze the 2nd from a historical point of view. Who was the militia of the period? Minutemen. A citizen militia that kept their own arms. Second, who were the founders protecting themselves from? Foreign invaders, maybe. A new fedral government that might be strong enough to usurp states right? More than likely. Pretty simple analysis, but I think it is more accurate

eaglemike
07-20-2012, 9:14 PM
My opinion:
First, you are supporting your hypothisis with laws and decisions that came after the Bill Of Rights, which is your first mistake. I think you have to analyze the 2nd from a historical point of view. Who was the militia of the period? Minutemen. A citizen militia that kept their own arms. Second, who were the founders protecting themselves from? Foreign invaders, maybe. A new fedral government that might be strong enough to usurp states right? More than likely. Pretty simple analysis, but I think it is more accurate
Do you remember the history of the BoR? Some didn't think it was even needed. Some didn't want it because then it might be interpreted as limited to the rights listed. Sound like the people with this line of thought were prescient? Inalienable rights.......... :) The writers of the COTUS were incredible people.

Mssr. Eleganté
07-20-2012, 9:15 PM
Did you seriously think most calgunners would actually read your post beyond the thread title? :p

Hippies_Have_Guns_Too
07-20-2012, 9:17 PM
To the op:

"the defense of ones self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defense is not confined merely to the person; it extends to the liberty and property of a man: it is not confined merely to his own person; it extends to the person of all those, to whom he bears a peculiar relation- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of everyone who is in danger; perhaps, to the liberty of everyone, whose liberty is unjustly and forcibly attacked." -James Wilson

"if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements, for people who decide to wait for these will have to wait for justice too- and meanwhile they must suffer injustice first." -Cicero

"the people of America would be highly displeased at being debarred the privilege of carrying arms, tis our duty to prepare against contingencies, and to provide the means for every man to protect himself as well against tyranny and usurpation, as against assault and invasion." - Andrew Jackson


There is nothing I or my OP disagree with you on those quotes. I think folks are just jumping to conclusions because of the title I posted could be misleading if the post is not actually read.

Hippies_Have_Guns_Too
07-20-2012, 9:19 PM
Did you seriously think most calgunners would actually read your post beyond the thread title? :p


The title does appear to be misleading people. But I think the title is fine -IF- the post is actually read.. LOL.

;)

m03
07-20-2012, 9:19 PM
I skipped around and didn't read the whole thing (TL;DR and all that), but I get the crux of it. I think everyone is tripping over the inaccurate title and just reacting to that.

Interesting point you have though.

taperxz
07-20-2012, 9:20 PM
There is nothing I or my OP disagree with you on those quotes. I think folks are just jumping to conclusions because of the title I posted could be misleading if the post is not actually read.

And your misinterpretations of those cases

five.five-six
07-20-2012, 9:28 PM
Highly doubt you read it because your response first of all was too fast to have read it, and its not anti-gun rights, its pro-gun rights.

But then again, maybe you did read all that in less than two minutes and maybe you don't believe we have the right to own firearms.


;)

No, we have all heard your fallacious argument before, it is always postulated by people that failed the portion of 3rd grade grammar that covered commas.


ETA, Welcome to calguns, enjoy your stay, listen up and you will learn things :thumbsup:

SilverTauron
07-20-2012, 9:31 PM
This argument is beside the point.

Let us pretend that the 2nd Amendment doesn't exist. Our set of gun laws still needs to be overhauled regardless of what that passage is interpreted to mean.

Logic dictates that the criminal act of murder, theft, rape, assault, kidnapping, and mass murders are crimes which engender stiffer punishments in the legal system than violation of a gun ordinance. Lying on a 4473 is not a concern to a man intent on using his illegally acquired firearm to coldly execute his neighbors. A magazine capacity restriction is irrelevant to a crook who faces felony charges just touching or using a gun. Regulation of full auto firearms makes no sense when out of two crimes comitted with Class III weaponry one of them was done by a COP.

States with shall issue CCW and few restrictions on gun laws don't suffer more crime than super-regulatory environments. Best case scenario, CA taxpayers are funding an entire branch of firearm regulatory bureaucracy for NO LOGICAL REASON during a state budget crisis. Worst case, the CA taxpayer is funding their own exploitation by crooks not concerned with registration forms.Second Amendment right to bear arms or no, the current crop of gun laws as policy initiatives meant to safeguard the public are abject failures. Much like the Apple II computer and Web TV, current gun control dogma need to find its way to the trashbin of history where it belongs.

five.five-six
07-20-2012, 9:34 PM
My opinion:
First, you are supporting your hypothisis with laws and decisions that came after the Bill Of Rights, which is your first mistake. I think you have to analyze the 2nd from a historical point of view. Who was the militia of the period? Minutemen. A citizen militia that kept their own arms. Second, who were the founders protecting themselves from? Foreign invaders, maybe. A new fedral government that might be strong enough to usurp states right? More than likely. Pretty simple analysis, but I think it is more accurate

Actually no, The English government was a standing domestic government. the heart of the 2nd amendment is to avail the people the ability to over throw a tyrannical domestic government. full context is available in the Federalist papers. OP's diatribe is quite effective with the logically and historically impaired

dunndeal
07-20-2012, 9:37 PM
"The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence"

-- SCOTUS (1875)

Exactly, it is not a right granted by the Constitution. The Constitution affirms that the right to bear arms is a natural right that cannot be infringed upon.
Seems simple enough to me.

njineermike
07-20-2012, 9:37 PM
100% agree. The right is not granted by the 2A. It is a right unto itself. The 2A prevents (or should prevent anyway) governmental interference or penalty from the exercise of that right by the people.

eaglemike
07-20-2012, 9:38 PM
No, we have all heard your fallacious argument before, it is always postulated by people that failed the portion of 3rd grade grammar that covered commas.
My friend, please re-read the OP.

Anyone else remember when some politician (Biden? Pelosi) said our rights are granted by the government???? The point is - this is not so!!!

dunndeal
07-20-2012, 9:42 PM
Why is it that the vast majority of members who post crap like this have recently joined and have low post counts and usually leave quickly?

eaglemike
07-20-2012, 9:48 PM
Why is it that the vast majority of members who post crap like this have recently joined and have low post counts and usually leave quickly?
Betcha a chocolate malt you didn't read the entire post........

taperxz
07-20-2012, 9:48 PM
My friend, please re-read the OP.

Anyone else remember when some politician (Biden? Pelosi) said our rights are granted by the government???? The point is - this is not so!!!

If you read the court cases he quoted (not just parts) you would understand.

Hippies_Have_Guns_Too
07-20-2012, 9:48 PM
Why is it that the vast majority of members who post crap like this have recently joined and have low post counts and usually leave quickly?

Leave quickly?

Anyway I do not believe it to be crap, but you are entitled to your opinion of course.

eaglemike
07-20-2012, 9:51 PM
If you read the court cases he quoted (not just parts) you would understand.

I think Cruikshank is a travesty. IMO should have been tossed long ago. I think I understood the point he was trying to make. I also think a LOT of people jumped to conclusion after reading the title. I'm not positive I understand his reasoning for quoting those cases. I think his point could have been made without doing so.
ETA: I do agree with some of the SCOTUS wording around the decision if quoted correctly. The 14th, PoI should also be a good thing, but so far has not done as well as I would have hoped.

five.five-six
07-20-2012, 9:53 PM
The comma, in Unicode U+002C , comma (HTML: ,), is a punctuation mark, and includes several variants in various languages. It has the same shape as an apostrophe or single closing quotation mark in many typefaces, but it differs from them in being placed on the baseline of the text. Some typefaces render it as a small line, slightly curved or straight but inclined from the vertical, or with the appearance of a small, filled-in number 9. It is used to separate parts of a sentence such as clauses, and lists of three or more things.

The comma is used in many contexts and languages, principally for separating things. According to the Oxford English Dictionary, the word comma comes directly from the Greek komma (κόμμα), which means something cut off or a short clause.



Read more here:

http://en.wikipedia.org/wiki/Comma

Ripon83
07-20-2012, 9:54 PM
The 2nd will protect our right so long as judges appointed to the supreme court do not reach a conclusion like you have, until they (like Kagan and Sotomayor) think the living breathing and evolving document didn't provide the Bill of Rights to individuals but their beloved collective. At which point - we're in deep you know what.

taperxz
07-20-2012, 9:54 PM
I think Cruikshank is a travesty. IMO should have been tossed long ago. I think I understood the point he was trying to make. I also think a LOT of people jumped to conclusion after reading the title.

Screw the title. OP is trying to reason bad case law using snippets without understanding it's taken Heller, mcDonald and Ezell to get what we lost and we are not done.

dunndeal
07-20-2012, 9:54 PM
Betcha a chocolate malt you didn't read the entire post........

Make it hot fudge sunday and you're on.

Obviuously you didn't read the content of my post, too.

otalps
07-20-2012, 9:56 PM
If it said, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

Would it have a damn thing to do with schools?

eaglemike
07-20-2012, 10:14 PM
Make it hot fudge sunday and you're on.

Obviuously you didn't read the content of my post, too.

Actually I did, or tried to do so. Most of the noob's try to promote "reasonable regulation" etc, as in the other two threads going at this time. :) So I think this guy is a little different.

dantodd
07-20-2012, 10:23 PM
THANK YOU eaglemike. I too am certain a few here completely missed the point of the OP. Thanks for actually taking the time to read it.

Again, Heller does a much better, clearer and recent job of explaining this. Or you could have merely stated what you were trying to say rather than quoting snippets of 19th century court decisions which are generally seen as anti-gun.

five.five-six
07-20-2012, 10:26 PM
10 USC 311 does not operate as an interpretation of the term "Militia" in the 2nd Amendment. Constitutional interpretation is determined by trying to figure out what the original intent was of the founding fathers in enacting that Amendment, not a Code section passed by Congress of the 1950's to regulate the military. Even if Congress wanted 10 USC 311 to be the all encompassing definition of the term "Militia" (which by the lack of legislative comments it could not have), a mere Code section is always subordinate to, meaning has no ability to fetter or limit, those rights guaranteed by the Constitution.

QFT

dantodd
07-20-2012, 10:28 PM
10 USC 311 does not operate as an interpretation of the term "Militia" in the 2nd Amendment. Constitutional interpretation is determined by trying to figure out what the original intent was of the founding fathers in enacting that Amendment, not a Code section passed by Congress of the 1950's to regulate the military. Even if Congress wanted 10 USC 311 to be the all encompassing definition of the term "Militia" (which by the lack of legislative comments it could not have), a mere Code section is always subordinate to, meaning has no ability to fetter or limit, those rights guaranteed by the Constitution.

"Militia," as used in the second amendment, is defined the same way it is defined in Article I of the constitution. Scalia was quite clear about this in Heller.

tonelar
07-20-2012, 10:34 PM
Mebbe you meant your title to read grants instead of "protects"?

I alwaze saw the "well regulated militia" part to mean that we (as a nation) benefit when more of us grow up with hands on firearms skills. Look at how military and police require more firearms training than in decades past (as less people grow up shooting than they did a generation ago).

Emdawg
07-20-2012, 11:03 PM
Interesting read Hippie, but, if I am reading this right, how come the Miller case did not strike down the National Firearms Act of 1934? Using its logic, an BAR would have qualified as a part of "ordinary military equipment" by 1939, so the ban of full automatics to all able-bodied men that could be a member of the Militia would be against the court's ruling?

Maybe I was not reading this right, but that is what it seems like to me.

Libertarian71
07-20-2012, 11:12 PM
Um, http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

"In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amend- ment right recognized in Heller."

McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010).

On the other hand, I do agree with the creator of this thread that "that the right to keep and bear arms is a human right that existed prior to the constitution and as such is not reliant upon that document." The Constitution does not create or grant rights. Our rights pre-exist government. In the words of the Declaration of Independence, it is a "self-evident" truth that "we are endowed by our creator with certain unalienable rights." The purpose of government, and the only legitimate purpose of government, is to "secure these rights." (Emphasis added).

Remember that many of the Founders were opposed to amending the Constitution by adding a Bill of Rights. The reason for the opposition was that an enumeration of rights could be construed as a limitation on the number of rights we have. James Madison's solution to this quandary was the Ninth Amendment, which provides that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added).

The right to keep and bear arms is a natural right that pre-exists the government and the adoption of the Constitution. In addition, the Second Amendment as drafted does not purport to create a right to keep and bear arms; rather it merely declares a right that already exists, and states that it not be infringed: "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."

dantodd
07-20-2012, 11:16 PM
Yes, perhaps it is the error in you title that first misleads people. The Second Amendment most assuredly does protect the right to keep and bear arms, but it does not grant or create such a right.

Shotgun Man
07-21-2012, 12:52 AM
[...]

And further taken into context with the Cruikshank and Presser cases. It is my opinion the Supreme Court has held that the second amendment protects the right of all able bodied men of correct age to privately possess the common military weapon of the time and that other firearms are not protected by the 2nd amendment --BUT!-- that the right to keep and bare arms is a human right that existed prior to the constitution and as such is not reliant upon that document.




You wish to be perceived as smart and academic, yet your use of "bare arms" exposes your fraudulence.

press1280
07-21-2012, 4:07 AM
The OP is not inconsistent with Heller/McDonald-Cruikshank was used as the vehicle for incorporation in McDonald since it pre-existed the Constitution itself.

vantec08
07-21-2012, 4:11 AM
A "militia" is not a creature of the state. National Guard is.

CDFingers
07-21-2012, 5:26 AM
The "collective right" argument is now less defensible after Heller and McDonald. Rather, the more defensible argument is for the individual right to keep and bear arms.

The Militia Act (iirc of 1792) says that the individual must buy his own weapons and ammo and "kit" so he's ready when the militia is called out. In the 21st century, we'll also add "her" to the mix.

The collective rights argument is weak. The individual right to keep and bear is more defensible.

I don't think the OP is trolling, as the collective right argument is well documented; it has been, however, pushed down in prominence.

CDFingers

OleCuss
07-21-2012, 5:41 AM
Note to the OP. That was an intelligent opening post. And I liked your conclusion.

But how you got there was so wrong in so many ways.

Others have mentioned the horrifyingly amazingly awful travesty that was Miller as not really being very good case law. Problems with Cruikshank as well. Essentially no attention to Heller and McDonald?

But the huge mistake that no one has pointed out to you is that the modern "militia" defined in the code you cited is not at all the militia those who wrote the Constitution knew and enshrined in the text. You made at least some mention of the general composition of the militia, but the way it was structured had relatively little in common with the "militia" of today as defined by US and California code.

Maybe you'd call this a concurring opinion? I like your attitude. I mostly like where you end up. I don't like a lot of how you got there.

I consider you a brother in the fight. Keep up the good work and please take the criticisms as constructive - whether they were meant that way or not.

NoJoke
07-21-2012, 6:10 AM
What is your motivation for even writing/researching such a topic?

Dave22
07-21-2012, 6:14 AM
I have never understood why some people are so quick to give up their rights.

OP...might as well give up your right to free speech and protection against illegal search while you are at it.

Sheep. It's a mental illness I think.

tonelar
07-21-2012, 6:52 AM
Oz5o1qEB5ok
^- This

MudCamper
07-21-2012, 7:53 AM
Heller vs dc
mcDonald vs Chicago

/thread

QFT.

OP, you omitted the two most significant 2A cases.

The "collective right" argument is now less defensible after Heller and McDonald.

No. The collective rights argument is now dead. Heller killed it. No matter what anyone believes, the 2A is now an individual right to self defense.

hornswaggled
07-21-2012, 7:58 AM
Heller case.

Done. Next?

moleculo
07-21-2012, 8:04 AM
NO! Posting misinformation as fact is though. Moleculo


Trolling my name in this, huh? Don't start up with me again; I'll have to expose you as the *ss you are again.

BTW, I read the OP post as well and disagree with his analysis.

donw
07-21-2012, 8:15 AM
i'll never understand why it's difficult to understand the Heller decision: the SCOTUS clearly reaffirmed the 2A gives citizens the right to own firearms.

however i think far too many do not understand that the 2A does NOT remove 'control' of the type, size (caliber), use of, etc, of the type of firearms that the state may invoke; it merely states we have a right to OWN firearms...NOT to use them...

state legislatures, county sheriffs, etc, have taken advantage of this fact by attacking the ammunition, when and where you may LEGALLY shoot/discharge firearms, transporting them, and even displaying them openly in public. California has become especially abusive in this legislative field IMO.

the fight has just intensified with the shootings in Aurora...we'd better dig in, hunker down, and prepare for a barrage of anti-gun legislation...

"Troll", or not, there is validity in what BOTH sides claim... we better NOT underestimate these anti-gun folks; they are determined...

taperxz
07-21-2012, 8:23 AM
Trolling my name in this, huh? Don't start up with me again; I'll have to expose you as the *ss you are again.

BTW, I read the OP post as well and disagree with his analysis.

Sorry but your ideas of alternate points of views are so similar. Go ahead and expose! LOL

greybeard
07-21-2012, 8:26 AM
Well this is the USA, you can believe anything you want, we can also disagree.

radioburning
07-21-2012, 8:29 AM
I'm pretty sure a few here missed the point.

The implication is that the right pre-exists the COTUS. Right to self-defense, etc is inherent.

Yep. Some here lack reading comprehension.

db42
07-21-2012, 8:36 AM
But the huge mistake that no one has pointed out to you is that the modern "militia" defined in the code you cited is not at all the militia those who wrote the Constitution knew and enshrined in the text. You made at least some mention of the general composition of the militia, but the way it was structured had relatively little in common with the "militia" of today as defined by US and California code.

This is the point I immediately thought of after reading the first post. I'm not extremely familiar with the court cases, and I most often argue against gun control with people who think (as the OP) that it isn't REALLY a right.

As OleCuss points out, "militia" as referred to in the text were private citizens who brought their own privately owned weapons to act as soldiers for the "common defense". The famed "minutemen" were not an "formal" military force, but civilian volunteers. These volunteers became "regulated" only after the fighting began. These men were not considered members of the "Continental Army" but fought alongside them as a coalition force. They were people who lived in the same general area who agreed that they needed to be ready to fight if the British came.

When the British finally did come, you will recall Minuteman Paul Revere's attempt to warn the people of Concord of the impending attack. For what reason were the British attacking Concord? Because there was a store of weapons there that they intended to seize. Hoping to quell the rebellion before it began, the British had begun seizing weapons from private citizens all across the colonies (early gun control) - this is key.

Now to the text of the amendment.
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.

Why is a militia necessary as opposed to a "standing army" - such as the British Regulars or the early Continental Army? Wouldn't a standing army be better trained and equipped?
Because a militia is formed of regular citizens, not military personnel. People will fight harder when their own homes and freedoms are at stake, and they will fight "anyone" who tries to take them.

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.

Why is the militia "necessary to the security of a free state"? Shouldn't all countries implement such a system if it's so effective?
A militia wouldn't work out very well for a tyrannical government now would it? - and it didn't. When the British crown refused to recognize the rights of their colonial subjects (who were full citizens of the empire) the militia (of their citizens) rose up against them. Conversely, many of the people in the American militias were fighters in the French and Indian War, and fought on the British side - as militia members.
Militias serve as a check against tyranny and a bolster for good government - they assure that a "free state" remains "free" and a tyrant is overturned.

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 the militia is the point, then why doesn't it say "the right of the militia" or "the right of the militia members" etc? Why are regular people included.

1: Many militias didn't form until after the bullets were flying, or shortly before. These people would have no time to arm themselves and hence no way to defend themselves if they needed to be a militia "before" they got the weapons.
2: The founders were smart enough to know that requiring a formally established militia membership to purchase a weapon would only lead to a group of government searching out militia members to disarm them - just as the British did in Concord.

The strength of a militia is that they are invisible. You don't know who they are; so requiring one to present proof of militia membership to purchase a weapon is just silly and for that matter counterproductive.


If you understand what is meant by "militia" in this context, the rest is self explanatory - and there is practically no way to come to a conclusion that doesn't authorize personal/private ownership.

radioburning
07-21-2012, 8:39 AM
Interesting read Hippie, but, if I am reading this right, how come the Miller case did not strike down the National Firearms Act of 1934? Using its logic, an BAR would have qualified as a part of "ordinary military equipment" by 1939, so the ban of full automatics to all able-bodied men that could be a member of the Militia would be against the court's ruling?


Technically, we should be able to own FA. If the government makes millions of FA M4's, trains an army of soldiers and police to use them, and the 2A is designed to keep citizens armed with "common weapons of the time" in order to keep the gov in check...well you do the math.

hawk1
07-21-2012, 8:43 AM
Whats with all the trolls today?

Mass murder and shootings tend to excite them a bit.

Mostly for political and monetary gain.

hoffmang
07-21-2012, 9:01 AM
That the right to possess and carry arms for self defense predates the adoption of the Bill of Rights, does not strip the Second Amendment of it's actual additional protection of that right. Preservation of the unorganized militia is but one of the reasons that the people have a right to keep and bear arms.

-Gene

taladeganite
07-21-2012, 9:28 AM
This thread has been sooooo informative (if not provacative). In lieu of the recent tragedy, I feel very motivated to really bone up on constitutional law, our bill of rights and the current threats to 2a, as well as our countrys' sovereinty.

sandman21
07-21-2012, 9:58 AM
Yep. Some here lack reading comprehension.

It's funny to watch....:p

Johnnyfres
07-21-2012, 9:59 AM
Gene has spoketh. /thread

anthonyca
07-21-2012, 10:14 AM
My friend, please re-read the OP.

Anyone else remember when some politician (Biden? Pelosi) said our rights are granted by the government???? The point is - this is not so!!!

I agree. "A government big enough to give you everything you want is strong enough to take it all away. "

Our rights come from our Creator as stated by Thomas Jefferson in one of the most amazing and beautiful documents ever written. http://www.archives.gov/exhibits/charters/declaration.html/

vincewarde
07-21-2012, 11:33 AM
Prior to Heller, I would regularly hear from my liberal friends - including at least one very accomplished lawyer - that SCOTUS had definitively ruled that, "The Second Amendment only protects the your right to join the National Guard." Of course when asked what decision such a ruling might be found in, they could not name it. So before Heller, I read every 2nd Amendment case I could find. There was no ruling addressing the issue of a personal right prior to Heller.

There is no better issue to reveal the absolute disdain "liberal" justices have for the Constitution than the 2nd Amendment - because the only way to hold the opinion that it does not protect a personal right is to intentionally ignore both the text of the amendment and the context in which it was passed.

First the context: As other have pointed out, the Revolutionary War involved the British attempting to confiscate the guns of the people that might be used against them. In addition, the founders had a profound distrust of both a standing army and government in general. They believed the best way to keep the government and the army in check was to make sure that the civil population could not be disarmed. In addition, as in the Revolution, the militia drawn from the population, would serve as a secondary force that could reinforce the army in time for war.

The text was written with these goals in mind: "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."

For the classic, pre-Heller liberal view to be correct it would have to read something like this: "A well regulated Militia, being necessary to the security of a free State, the right of the states to organize and arm their respective Militias, shall not be infringed."

Others have suggested that gun ownership should be restricted to Militia members, but for that opinion to be correct it would have to read: "A well regulated Militia, being necessary to the security of a free State, the right of the Militia members to keep and bear Arms, shall not be infringed."

Of course the language they settled upon - after significant debate - consisted of a preface and an operative clause:

Preface: A well regulated Militia, being necessary to the security of a free State,

In the thinking of the founders, the preface was necessary in order that readers would understand why the right was being protected by the Federal government. Simply put, the founders knew that a large military force might very well be needed again - but in their minds a standing army was a threat to freedom. The Swiss model, and well as their own experiences in the Revolution, convinced them that the only way freedom could survive would be if the the people were that military force.

Operative clause: "the right of the people to keep and bear Arms, shall not be infringed."

Interestingly, while they could have extended protection only to Militia members, they extended the protection to the entire populace - the people. Furthermore, they used a term found no where else in the constitution, "shall not be infringed". The word "infringe" is defined as, "Act so as to limit or undermine (something); encroach on".

This language is exceedingly strong. If interpreted textually, most of our nations gun control laws would be invalidated. It is certainly hard to see how the 2nd Amendment can legitimately be accorded any level of protection below strict scrutiny.

Of course, I agree that the Amendment does not confer any new rights - it protects a preexistent human right that IMHO is conferred to us by our Creator.

lrdchivalry
07-21-2012, 12:06 PM
This is the point I immediately thought of after reading the first post. I'm not extremely familiar with the court cases, and I most often argue against gun control with people who think (as the OP) that it isn't REALLY a right.

As OleCuss points out, "militia" as referred to in the text were private citizens who brought their own privately owned weapons to act as soldiers for the "common defense". The famed "minutemen" were not an "formal" military force, but civilian volunteers. These volunteers became "regulated" only after the fighting began. These men were not considered members of the "Continental Army" but fought alongside them as a coalition force. They were people who lived in the same general area who agreed that they needed to be ready to fight if the British came.

When the British finally did come, you will recall Minuteman Paul Revere's attempt to warn the people of Concord of the impending attack. For what reason were the British attacking Concord? Because there was a store of weapons there that they intended to seize. Hoping to quell the rebellion before it began, the British had begun seizing weapons from private citizens all across the colonies (early gun control) - this is key.

Now to the text of the amendment.


Why is a militia necessary as opposed to a "standing army" - such as the British Regulars or the early Continental Army? Wouldn't a standing army be better trained and equipped?
Because a militia is formed of regular citizens, not military personnel. People will fight harder when their own homes and freedoms are at stake, and they will fight "anyone" who tries to take them.



Why is the militia "necessary to the security of a free state"? Shouldn't all countries implement such a system if it's so effective?
A militia wouldn't work out very well for a tyrannical government now would it? - and it didn't. When the British crown refused to recognize the rights of their colonial subjects (who were full citizens of the empire) the militia (of their citizens) rose up against them. Conversely, many of the people in the American militias were fighters in the French and Indian War, and fought on the British side - as militia members.
Militias serve as a check against tyranny and a bolster for good government - they assure that a "free state" remains "free" and a tyrant is overturned.



If the militia is the point, then why doesn't it say "the right of the militia" or "the right of the militia members" etc? Why are regular people included.

1: Many militias didn't form until after the bullets were flying, or shortly before. These people would have no time to arm themselves and hence no way to defend themselves if they needed to be a militia "before" they got the weapons.
2: The founders were smart enough to know that requiring a formally established militia membership to purchase a weapon would only lead to a group of government searching out militia members to disarm them - just as the British did in Concord.

The strength of a militia is that they are invisible. You don't know who they are; so requiring one to present proof of militia membership to purchase a weapon is just silly and for that matter counterproductive.


If you understand what is meant by "militia" in this context, the rest is self explanatory - and there is practically no way to come to a conclusion that doesn't authorize personal/private ownership.

Well said!

lrdchivalry
07-21-2012, 12:10 PM
Prior to Heller, I would regularly hear from my liberal friends - including at least one very accomplished lawyer - that SCOTUS had definitively ruled that, "The Second Amendment only protects the your right to join the National Guard." Of course when asked what decision such a ruling might be found in, they could not name it. So before Heller, I read every 2nd Amendment case I could find. There was no ruling addressing the issue of a personal right prior to Heller.

There is no better issue to reveal the absolute disdain "liberal" justices have for the Constitution than the 2nd Amendment - because the only way to hold the opinion that it does not protect a personal right is to intentionally ignore both the text of the amendment and the context in which it was passed.

First the context: As other have pointed out, the Revolutionary War involved the British attempting to confiscate the guns of the people that might be used against them. In addition, the founders had a profound distrust of both a standing army and government in general. They believed the best way to keep the government and the army in check was to make sure that the civil population could not be disarmed. In addition, as in the Revolution, the militia drawn from the population, would serve as a secondary force that could reinforce the army in time for war.

The text was written with these goals in mind: "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."

For the classic, pre-Heller liberal view to be correct it would have to read something like this: "A well regulated Militia, being necessary to the security of a free State, the right of the states to organize and arm their respective Militias, shall not be infringed."

Others have suggested that gun ownership should be restricted to Militia members, but for that opinion to be correct it would have to read: "A well regulated Militia, being necessary to the security of a free State, the right of the Militia members to keep and bear Arms, shall not be infringed."

Of course the language they settled upon - after significant debate - consisted of a preface and an operative clause:

Preface: A well regulated Militia, being necessary to the security of a free State,

In the thinking of the founders, the preface was necessary in order that readers would understand why the right was being protected by the Federal government. Simply put, the founders knew that a large military force might very well be needed again - but in their minds a standing army was a threat to freedom. The Swiss model, and well as their own experiences in the Revolution, convinced them that the only way freedom could survive would be if the the people were that military force.

Operative clause: "the right of the people to keep and bear Arms, shall not be infringed."

Interestingly, while they could have extended protection only to Militia members, they extended the protection to the entire populace - the people. Furthermore, they used a term found no where else in the constitution, "shall not be infringed". The word "infringe" is defined as, "Act so as to limit or undermine (something); encroach on".

This language is exceedingly strong. If interpreted textually, most of our nations gun control laws would be invalidated. It is certainly hard to see how the 2nd Amendment can legitimately be accorded any level of protection below strict scrutiny.

Of course, I agree that the Amendment does not confer any new rights - it protects a preexistent human right that IMHO is conferred to us by our Creator.

Excellent! Another great post.

Kappy
07-21-2012, 12:32 PM
From the very beginning, the OP's original post was misinformed. I began with the intent to read the entire thing, but it was founded in such soft footing, I couldn't go any further.

The Militia Clause merely lends support. It is not the reason for the 2A. In some ways, it would be better if the writers of the Constitution had not bothered adding the clause, but I suspect it was left in to get the 2A to pass through the convention. Even now, it seems a great idea to include the clause, since many citizens are currently fearful of losing their political freedoms, but it also currently creates confusion.

It is a preamble to the right, not a limitation of that right. SCOTUS said so.

OP, you may disagree based upon your reading of a Wikipedia page this morning (sarcasm, but the best legal minds in the country hashed it out and said it was an individual right. Move on.

otalps
07-21-2012, 1:12 PM
Prior to Heller, I would regularly hear from my liberal friends - including at least one very accomplished lawyer - that SCOTUS had definitively ruled that, "The Second Amendment only protects the your right to join the National Guard." Of course when asked what decision such a ruling might be found in, they could not name it. So before Heller, I read every 2nd Amendment case I could find. There was no ruling addressing the issue of a personal right prior to Heller.


Read Dred Scott, while not exactly a 2a case the the court said that if he was a citizen he would be entitled to all the freedoms and privileges of citizenship of the United States, including the right to bear arms.

vincewarde
07-21-2012, 2:52 PM
Read Dred Scott, while not exactly a 2a case the the court said that if he was a citizen he would be entitled to all the freedoms and privileges of citizenship of the United States, including the right to bear arms.

Absolutely right. The Justices often mentioned the right in passing - but until Heller, when pressed, they always found a way to side step the issue. In Miller, they basically said that since a sawed off shotgun had no "militia value" the 2nd Amendment did not apply and they did not need to address the issue any further. Much as in Heller, SCOTUS did not address the issue of scrutiny because a ban such as DC's would fail under any level of scrutiny. Just as in Miller, it does not mean strict scrutiny will not end up being the standard, it simply means that it has yet to be 100% settled by SCOTUS. Thankfully McDonald seemed to move the court in that direction.

eaglemike
07-21-2012, 4:38 PM
Absolutely right. The Justices often mentioned the right in passing - but until Heller, when pressed, they always found a way to side step the issue. In Miller, they basically said that since a sawed off shotgun had no "militia value" the 2nd Amendment did not apply and they did not need to address the issue any further. Much as in Heller, SCOTUS did not address the issue of scrutiny because a ban such as DC's would fail under any level of scrutiny. Just as in Miller, it does not mean strict scrutiny will not end up being the standard, it simply means that it has yet to be 100% settled by SCOTUS. Thankfully McDonald seemed to move the court in that direction.
Pretty sure part of the failings in Miller were due to the peculiar circumstances surrounding the case. IIRC during Heller there was a little discussion about this and one of the Justices implied Miller needed to be reviewed, or something along that line. Again IIRC Miller was dead by the time this came to trial, and he had no advocate to argue his position, so the case ended up where it did.

HiveDR.
07-21-2012, 5:01 PM
If the OP would spend some time reading the writings of the founding father of the United States, such as Thomas Jefferson, George Washington, John Adams just to name a few. He would see that these men fully believed in a individuals right to bear arms. Hell a quick Google search on quotes by just these three would help him see the founders intent.

"The very atmosphere of firearms anywhere and everywhere restrains evil interference." George Washington

eaglemike
07-21-2012, 5:17 PM
If the OP would spend some time reading the writings of the founding father of the United States, such as Thomas Jefferson, George Washington, John Adams just to name a few. He would see that these men fully believed in a individuals right to bear arms. Hell a quick Google search on quotes by just these three would help him see the founders intent.

I know the title is misleading - but you didn't read the OP. He agrees with you. :)

Dreaded Claymore
07-21-2012, 5:24 PM
This is an impressive troll thread. :troll:

Ordnance1
07-21-2012, 5:29 PM
Can we just say it does protect our right to keep and bear arms because thats the way I want it to be and I'm not going to accept any alternatives?

otalps
07-21-2012, 5:35 PM
I know the title is misleading - but you didn't read the OP. He agrees with you. :)

Not entirely he doesn't. Re-read the op. There are not 2 statements in the 2nd amendment and there is no ambiguity as to the sentence structure.

eaglemike
07-21-2012, 7:17 PM
Not entirely he doesn't. Re-read the op. There are not 2 statements in the 2nd amendment and there is no ambiguity as to the sentence structure.
The bottom line - it is a right pre-existing the COTUS and BOR.

I believe we need to remain determined to protect this right. This only thing that will truly protect this right is our determination to do so. If the current POTUS is able to get another liberal justice in there we will be challenged.

otalps
07-21-2012, 7:35 PM
I agree with that but at the same time these ideas of it being meant for militia, grammatical errors and such need to be snipped in the bud. The asinine interpretations of the amendment just give room for the anti's to come up with asinine arguments.

RJohnson
07-21-2012, 7:39 PM
After this latest massacre using an assault weapon we will see a new federal assault weapons and hi cap magazine / repair kit ban, a California ban on off the list lowers, bullet buttons, hi cap magazine repair kits, bans on many parts including the sale of complete or parted out upper assemblies, stocks, etc. Also I believe we will see a California ban on semi auto handguns within the near future.

stitchnicklas
07-21-2012, 7:57 PM
i really get sick of these anti-trolls...


:ban::ban::ban:

kcbrown
07-21-2012, 10:15 PM
Just as in Miller, it does not mean strict scrutiny will not end up being the standard, it simply means that it has yet to be 100% settled by SCOTUS. Thankfully McDonald seemed to move the court in that direction.

I would hope that scrutiny would not be involved at all. I would hope that, thanks to the "shall not be infringed" language, a purely categorical standard would be used.

Which is to say, there would be one, and only one, question:

Does the law in question "infringe", as understood by the founders of the country, the "right", again as understood by the founders of the country, to keep and bear arms?


If the answer is in the affirmative, the law must struck as invalid, no matter how compelling the "government interest" may be or if the law is the "least restrictive means" of achieving that "interest" or how "narrowly tailored" it is , because it infringes on the right to keep and bear arms.


But I suspect it'll be a cold day in Hades before the Supreme Court actually insists on that (and only that) as the standard for deciding 2A-related cases.

ZombieTactics
07-21-2012, 10:27 PM
After this latest massacre using an assault weapon we will see a new federal assault weapons and hi cap magazine / repair kit ban, a California ban on off the list lowers, bullet buttons, hi cap magazine repair kits, bans on many parts including the sale of complete or parted out upper assemblies, stocks, etc. Also I believe we will see a California ban on semi auto handguns within the near future.

We'll see some political posturing along these lines, but ultimately nothing like the laundry list you've posted.

IPSICK
07-21-2012, 11:50 PM
I wish I had time to read all the posts here, but I am less motivated to considering many here did not even bother to read the Op's starting post.

However, the title is terrible as the 2nd Am does protect the right to bear arms. But as has been noted by others, it does not grant, create, or establish that right. That right is either granted by a higher power or if you're an atheist, a right that logically already exists in nature.

Upstanding Black Citizen
07-22-2012, 12:29 AM
The ruling in Heller was a landmark victory, but I believe that it essentially stunted our growth from here onward.

How are we going to prove that "military-style weapons" are protected items without any references to militia/military use?

I can't think of a single lawful purpose that cannot be adequately done without the use of evil-features/full auto capability/ect.

dantodd
07-22-2012, 5:43 AM
The ruling in Heller was a landmark victory, but I believe that it essentially stunted our growth from here onward.

How are we going to prove that "military-style weapons" are protected items without any references to militia/military use?

I can't think of a single lawful purpose that cannot be adequately done without the use of evil-features/full auto capability/ect.

What makes you think that Heller forecloses the ability to argue the implications and meaning of the prefatory clause of the second amendment?

CharlesV
07-22-2012, 5:19 PM
Much to comment on in this thread but i'll limit it to the OP.

Ive debated 2A for decades with the four lawyers in my family and there is never a consensus.

But the argument is this. Does 2A apply to anyone, anytime? OR...did 2A mean that the government could outfit a volunteer or conscripted militia in times of conflict/war, hand them a gun to use and then take it back when the conflict ended? In this way, "the right to bear arms" was given and taken by the government at will. Yes, it says "shall not be infringed," but under what circumstances shall the right not be infringed-- war? peacetime? And by whom would it be or not be infringed? And did the right go beyond ownership of the piece itself and include ammo and your right to fire the weapon at will at your choosing, not the governments?

Self defense does not connect to gun ownership automatically, that depends on the interpretation of 2A. Also in the same way, the overthrowing of a tyrannical government does not mean automatically that it would have been done with guns. It could have meant rocks and sticks.

The importance of the debate is that Congress and others are largely history-illiterate and they will pass laws about 2A without ever studying its core and ensuing cases. The real problem is that there is no firm consensus in government what 2A actually means and so whats left is NRA, anti-gun groups, etc, all pushing opposing agendas based on the lack of clarity in 2A. The loudest mouth wins, doesnt matter who is right or wrong.

I as a Calgunner recognize the lack of clarity but will continue to own and enjoy guns as long as i can and promote safe ownership by all, until at least something firm falls on the other side. But i dont believe gun ownership and use is god-given or automatic. Its cloudy and debatable. For this reason Congress, all of us, need to learn a lot more before making laws and the rest of us accepting them, respectively.

otalps
07-22-2012, 8:45 PM
There is nothing cloudy nor debatable about the Second amendment. It's written in plain English, it is backed up by the written words of the people that wrote it. It is now recognized as an individual right by the Supreme Court. It is not a privilege bestowed upon us by the Government.

XD40SUBBIE
07-23-2012, 8:32 AM
Regardless of the OP's conclusion and entry of 150 year old case law, as recent as 2010, this issue has been laid to rest by the SCOTUS. (http://www.washingtonpost.com/wp-dyn/content/article/2010/06/28/AR2010062802134.html) So, OP, why are you posting this? Posting it here, of all places. You already know that everyone here are likely to disagree with your opinion. As nice as your opinion is to hold and believe, unfortunately, it does not rule on cases and interpretation of the law, unless you are one of the judges in the SCOTUS or even a municipal judge. Are you? Then otherwise, your opinion weighs just about the same as anyone of ours, which does not become law or case law or anything outside of just another point of view. So again, why argue this, when this matter has been resolved in 2010?

Wherryj
07-23-2012, 10:07 AM
It's not our fault you don't understand English or court decisions.
...or the fact that one CANNOT use definitions from a later time to define terms used in an earlier time. "Militia" meant and entirely different thing then that it does now.

Jason_2111
07-23-2012, 11:29 AM
To add a troll to your ignore list, click on "Quick Links" -> "Edit Options".
From there select "Edit Ignore List".
After adding to your list, be sure to click "Save Options".

Poof.

/thread

Meplat1
07-23-2012, 12:07 PM
Basically, you cut out all the bad court cases, and you get what he is trying to say (I think?) :shrug:. He is saying the 2A is just a written expression of an inalienable right?? What's wrong with that?

What is wrong is that he starts by asserting that the 2A does not protect the RKBA. It does, just at another level below human rights and natural law. The most recent opinion on the subject handed down by the SCOTS holds that the second amendment protects an individual right. What is important to remember is that the constitution does not grant rights, it expresses the existence of rights that naturally exist. The words of the founders freely admit that there are many more natural human rights that exist that they did not touch upon in the constitution.

Meplat1
07-23-2012, 12:18 PM
The title does appear to be misleading people. But I think the title is fine -IF- the post is actually read.. LOL.

;)


Nope! The title is just plain wrong. I understand that you are saying that the natural human right to arms predates the constitution; and I agree. But the 2ND does in its own right protect that right at one level.

Uxi
07-23-2012, 12:28 PM
I have never had a right to bear arms in Los Angeles County. There's a pending lawsuit but right now I can still only "keep" arms.

Meplat1
07-23-2012, 12:40 PM
If the OP would spend some time reading the writings of the founding father of the United States, such as Thomas Jefferson, George Washington, John Adams just to name a few. He would see that these men fully believed in a individuals right to bear arms. Hell a quick Google search on quotes by just these three would help him see the founders intent.

"The very atmosphere of firearms anywhere and everywhere restrains evil interference." George Washington

This quote from Washington makes, I think, a point that is almost universally overlooked; even by 2A advocates. That being that the overwhelming majority of people are good; flawed, but good. Only a minute minority are evil. Given that circumstance, the more universal bearing arms becomes, the safer society becomes.

Meplat1
07-23-2012, 12:46 PM
I have never had a right to bear arms in Los Angeles County. There's a pending lawsuit but right now I can still only "keep" arms.

You have the right; it's just being infringed.:mad:

Whiskey_Sauer
07-23-2012, 3:46 PM
This is from a post I posted years ago on a Democratic forum.

I have a sincere question to the OP: What is the point of your post?

You apparently wrote this years ago, presumably before 2008, because you completely ignore the Heller decision. It would be akin to me expressing an opinion as to whether the Fourteenth Amendment's Equal Protection Clause prohibits segregation, and completely ignoring Brown v. Board of Education. What gives?

POLICESTATE
07-23-2012, 3:48 PM
You are certainly free to believe what you like. Now if you're a man of principle you will turn all your guns in. If not, well then I guess you'll do whatever you like.

However please note you have no right to impose your view on the rest of us. We're keeping our guns. :D


I posted this in another thread in the off-topic lounge. I think it belongs here in the 2nd Amend forum.

---





I do not believe the second amendment protects our right to keep & bear arms.

Allow me to elaborate:





"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."


Words we all here are familiar with. But what do they actually mean? Well, I am not going to profess that my point of view on this matter is 100% the last word. However, I do believe my point of view to be academically correct on the basis of the laws I am going to cite below. This is from a post I posted years ago on a Democratic forum.

First of all if we look at the second amendment we see that it is composed of two statements which some folks (from both sides of this argument) see as contradictory. On one hand it appears to affirm the right of the people to possess and use their own firearms. On the other hand it appears to affirm only the right to possess and use firearms in the context of a well regulated militia such as the state's national guards.

Which ever one of these two ideas you believe to be the case, it still leaves this amendment appearing to be ambiguous. Well, I don't believe the founders would publish a right which was ambiguous.

If we look at the first part of this amendment we can clearly see this amendment is dealing with a military type action. A well regulated militia being necessary for our national security certainly is expressing a military type action. However, the second part of this amendment clearly states that the people have the right to keep and bear arms. Is there a way these two seemingly opposing thoughts can coexist without ambiguity? Yes.

If we look at the U.S. Code Law 10 USC 311 (http://codes.lp.findlaw.com/uscode/10/A/I/13/311/)




What we see is there are two classes of what defines "Militia" and only one of them is defined as a National Guard. The other one is defined as all able-bodied males between the ages of 17 - 45.

So in other words I believe the second amendment protects the right of both classes of militia to keep and bear arms for national security (military) type reasons.

So does this mean that women not in a National Guard or men older than 45yrs cannot possess and use their own firearms? No

Referring back to the US Supreme Court quote I posted above. The right to keep and bear arms is not a right granted by the second amendment, nor is it dependent upon it for its existence. In other words the US Supreme Court stated all the way back in 1875 that the right to keep and bear arms is a HUMAN RIGHT.

This statement by the Supreme Court is important in my opinion not only because it states a truth, but, also, because it corroborates the point I am making that the second amendment is about declaring the right of the "militia" (National Guards -and- all men 17 to 45) to keep and bear arms for the purpose of national security, and as we will see below, it appears that the militia is not only expected to show up bearing their own arms, but, also of the type "in common use". In other words today that means M16's.




Supreme Court Cases


The SCOTUS case I cited above is: U.S. v. Cruikshank, 92 U.S. 542 (1875) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=92&invol=542)

U.S. v. Cruikshank was a case which involved the KKK suppressing black folks from their right to freely assemble and to bear arms. The Supreme Court in this case ruled that because the 1st and 2nd amendments applied to the federal government and not to the states; citizens had to "rely on the police power of the states for their protection from private individuals.

However, the Supreme Court also ruled:




The next important Supreme Court case is: Presser v. State of Illinois, 116 U.S. 252 (1886) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&linkurl=%3C%LINKURL%%3E&graphurl=%3C%GRAPHURL%%3E&court=US&case=/data/us/116/252.html)

In Presser v. Illinois the Supreme Court ruled that the states had the right to regulate private military groups. Presser also reaffirmed the earlier Cruikshank decision that the Second Amendment is a restriction upon the federal government and not the states.

Nevertheless, Presser is important because the Supreme Court also ruled that the states could not write laws prohibiting the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."




Next important Supreme Court case we have is: U.S. v. Miller, 307 U.S. 174 (1939) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174)

The Miller case is a case often cited by the anti-gun crowd as proof against private gun ownership. Well, I am very sorry for all those who believe that the Miller case ruled that citizens are not guaranteed the right to private ownership of firearms. The Miller case doesn't make any such ruling. What the Miller case rules is that a sawed-off shotgun doesn't constitute "ordinary military equipment or that its use could contribute to the common defense." Therefore "it cannot be said that the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument (sawed-off shotgun), or that the statute violates such constitutional provision."

Also, pay attention to the language SCOTUS uses in these next quotes. Remember above I said I believe the second amendment means a right to own arms of the type "in common use". In other words today that means M16's? Here you go:





The Miller case also brings up some other interesting rulings. And to better understand these rulings requires knowledge of the U.S. Code I posted above with respect to the definitions of the militia.





Its important to note that the Supreme Court only required evidence that a saw-off shotgun contributed to the efficiency of a well-regulated militia. They did not however ask the question if whether or not the defendants had to belong to a well regulated militia.

Now given this fact and interpreting Miller with its references to "ordinary military equipment", "Militia comprised all males physically capable.....", and citizens "expected to appear baring arms (of the 'ordinary military equipment') supplied by themselves and of the kind in common use at the time (today the M16 or the M4).

Taken into context with the U.S. Code on "Militia composition and classes" and its definition of all able-bodied males between the ages 17 to 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States.

And further taken into context with the Cruikshank and Presser cases. It is my opinion the Supreme Court has held that the second amendment protects the right of all able bodied men of correct age to privately possess the common military weapon of the time and that other firearms are not protected by the 2nd amendment --BUT!-- that the right to keep and bare arms is a human right that existed prior to the constitution and as such is not reliant upon that document.


http://www.jonrb.com/emoticons/shoot.gif

http://www.smileysnetwork.com/armes/arme02.gif

hoffmang
07-23-2012, 8:38 PM
After this latest massacre using an assault weapon we will see a new federal assault weapons and hi cap magazine / repair kit ban, a California ban on off the list lowers, bullet buttons, hi cap magazine repair kits, bans on many parts including the sale of complete or parted out upper assemblies, stocks, etc. Also I believe we will see a California ban on semi auto handguns within the near future.

It can't even get to the floor in the House.

And boy do I wish California would throw us in your latter briar patch!

http://cdn2.likethedew.netdna-cdn.com/wp-content/uploads/2009/12/3736863169_5d02026b84.jpg

-Gene

Wiz-of-Awd
07-24-2012, 7:10 AM
I appreciate this post, and I see it as responsible & respectful.

Thank you "CharlesV"

Regards,
A.W.D.

Much to comment on in this thread but i'll limit it to the OP.

Ive debated 2A for decades with the four lawyers in my family and there is never a consensus.

But the argument is this. Does 2A apply to anyone, anytime? OR...did 2A mean that the government could outfit a volunteer or conscripted militia in times of conflict/war, hand them a gun to use and then take it back when the conflict ended? In this way, "the right to bear arms" was given and taken by the government at will. Yes, it says "shall not be infringed," but under what circumstances shall the right not be infringed-- war? peacetime? And by whom would it be or not be infringed? And did the right go beyond ownership of the piece itself and include ammo and your right to fire the weapon at will at your choosing, not the governments?

Self defense does not connect to gun ownership automatically, that depends on the interpretation of 2A. Also in the same way, the overthrowing of a tyrannical government does not mean automatically that it would have been done with guns. It could have meant rocks and sticks.

The importance of the debate is that Congress and others are largely history-illiterate and they will pass laws about 2A without ever studying its core and ensuing cases. The real problem is that there is no firm consensus in government what 2A actually means and so whats left is NRA, anti-gun groups, etc, all pushing opposing agendas based on the lack of clarity in 2A. The loudest mouth wins, doesnt matter who is right or wrong.

I as a Calgunner recognize the lack of clarity but will continue to own and enjoy guns as long as i can and promote safe ownership by all, until at least something firm falls on the other side. But i dont believe gun ownership and use is god-given or automatic. Its cloudy and debatable. For this reason Congress, all of us, need to learn a lot more before making laws and the rest of us accepting them, respectively.

IPSICK
07-24-2012, 12:20 PM
I've got to ask this question:

Is the 2nd sufficient to protect our rights?

I can see some of the criticism by anti's that the Heller decision could have represented judicial activism, as self-defense was not considered in prior Court decisions. However, self-defense can easily be seen as inherent to all free and living people. This would seem to indicate the need for a Ninth amendment argument but no court to date sees it as such. I really feel that to add protection from future Supreme Court configurations, the 2nd must be supplemented by a better interpretation of the 9th and extended support from the 14th. Unfortunately as I've stated, no judicial court has seen the 9th in this manner so accusations of judicial activism could surface again.

stix213
07-24-2012, 1:09 PM
You can cite all the SCOTUS cases you want, but if you're talking about the meaning of the 2A but neglect to cite District of Columbia v. Heller (2008) which thoroughly hashed out much of the interpretation used in the court today, you are either suffering from ignorance or are just a liar.

IPSICK
07-24-2012, 1:45 PM
You can cite all the SCOTUS cases you want, but if you're talking about the meaning of the 2A but neglect to cite District of Columbia v. Heller (2008) which thoroughly hashed out much of the interpretation used in the court today, you are either suffering from ignorance or are just a liar.

This is my concern. Heller is based on the court as it is today. What happens if we lose the Heller majority (i.e. Obama replaces one pro justice with one anti justice). If Heller can supplant precedence a later ruling could supplant Heller. We've got the 2nd (Heller) supporting us working in conjunction with the 14th (McDonald), but somehow I still feel we need to establish a natural right (9th). Unfortunately, no iteration of the Supreme Court has wished to establish what the 9th actually does, so a 9th argument is currently unrealistic. This is just layman (me) opinion but I believe there is scholarly but not judicial support for such argument. This likely makes my point moot, but I do want to make what we gained in Heller as ironclad as possible.

email
07-24-2012, 1:52 PM
Why are most of the lefty folks so darn condescending

therealnickb
07-24-2012, 2:03 PM
I didn't read the whole thread so maybe someone hit these points.

1. The vast majority of the amendments deal directly and specifically with "people's" rights. 2A clearly includes people's rights.

2. Militia as used in 2A is qualified with the words "regulated" and "necessary".

Necessary is pretty obvious as is people. Here is what most have missed IMO.

To regulate means to control. Those that control need the means to do so.

If only the militia had arms, the people certainly could not control it.

It may already be too late, but we will keep fighting for our right to bear arms that suit the task.

Wiz-of-Awd
07-24-2012, 2:13 PM
I didn't read the whole thread so maybe someone hit these points.

1. The vast majority of the amendments deal directly and specifically with "people's" rights. 2A clearly includes people's rights.

2. Militia as used in 2A is qualified with the words "regulated" and "necessary".

Necessary is pretty obvious as is people. Here is what most have missed IMO.

To regulate means to control. Those that control need the means to do so.

If only the militia had arms, the people certainly could not control it.

It may already be too late, but we will keep fighting for our right to bear arms that suit the task.

"qualified with the words "regulated" and "necessary" by the entity in charge.

GOV.

I hate to say it, but sounds like a bit of a back door loophole written into 2A - just in case.

Even our founding fathers most likely knew enough, to allow for things to shift and turn in favor of the "might" vs. the "right" (or vice versa) when conditions dictated the necessity - whether then or at some unknown point in the future.

A.W.D.

therealnickb
07-24-2012, 2:17 PM
"qualified with the words "regulated" and "necessary" by the entity in charge.

GOV.

A.W.D.

Of the people....

therealnickb
07-24-2012, 2:38 PM
"qualified with the words "regulated" and "necessary" by the entity in charge.

GOV.

I hate to say it, but sounds like a bit of a back door loophole written into 2A - just in case.

Even our founding fathers most likely knew enough, to allow for things to shift and turn in favor of the "might" vs. the "right" (or vice versa) when conditions dictated the necessity - whether then or at some unknown point in the future.

A.W.D.

It's not a back door loop hole at all IMO. If you follow the logic I layed out, the full meaning of 2A seems perfectly clear.

We need a well regulated army to protect us all. In order to regulate (control) it, we the people must have the power to do so.

Look around the world through out history at civilizations that did not have individual right to bear arms. It didn't end well for most of them.

Simple terms in my mind.

stix213
07-24-2012, 3:53 PM
This is my concern. Heller is based on the court as it is today. What happens if we lose the Heller majority (i.e. Obama replaces one pro justice with one anti justice). If Heller can supplant precedence a later ruling could supplant Heller. We've got the 2nd (Heller) supporting us working in conjunction with the 14th (McDonald), but somehow I still feel we need to establish a natural right (9th). Unfortunately, no iteration of the Supreme Court has wished to establish what the 9th actually does, so a 9th argument is currently unrealistic. This is just layman (me) opinion but I believe there is scholarly but not judicial support for such argument. This likely makes my point moot, but I do want to make what we gained in Heller as ironclad as possible.

That is why it is important to back Romney even though he isn't the perfect candidate, or anywhere close. We already got two anti justices from Obama, so our only hope is Romney. Fortunately he has praised all the justices in the Heller majority, except Kennedy, as being the right kind for the court on several occasions.

IPSICK
07-24-2012, 4:22 PM
That is why it is important to back Romney even though he isn't the perfect candidate, or anywhere close. We already got two anti justices from Obama, so our only hope is Romney. Fortunately he has praised all the justices in the Heller majority, except Kennedy, as being the right kind for the court on several occasions.

Someday, I hope to be able vote for candidates on issues other than RKBA. Unfortunately, that day seems very very far far away.

therealnickb
07-24-2012, 6:45 PM
Someday, I hope to be able vote for candidates on issues other than RKBA. Unfortunately, that day seems very very far far away.

No 2A, no other rights either.

Meplat1
07-25-2012, 5:01 AM
I didn't read the whole thread so maybe someone hit these points.

1. The vast majority of the amendments deal directly and specifically with "people's" rights. 2A clearly includes people's rights.

2. Militia as used in 2A is qualified with the words "regulated" and "necessary".

Necessary is pretty obvious as is people. Here is what most have missed IMO.

To regulate means to control. Those that control need the means to do so.

If only the militia had arms, the people certainly could not control it.

It may already be too late, but we will keep fighting for our right to bear arms that suit the task.


You need to seek out and understand the 19th century meaning of ‘well regulated’ as applied military affairs. Short answer; it means 'well equiped and functioning properly'.

watersports500
07-25-2012, 6:06 AM
You can make better use of your time, by going to the range or maybe loading one our two thousand rounds of ammo.

That's what I'm going to do today. I will thinking go you as I'm hanging my target at the range and drilling holes threw the center ring.

Have a nice day

Oh yes just a reminder there us a GUN SHOW THIS WEEKEND IN GLENDALE. SO BUY LOTS OF GUNS AND AMMO....

therealnickb
07-25-2012, 6:51 AM
You need to seek out and understand the 19th century meaning of ‘well regulated’ as applied military affairs. Short answer; it means 'well equiped and functioning properly'.

And who insures those 2 conditions? A government of the people....... Right?

Old4eyes
07-25-2012, 7:42 AM
Like many things drafted into law, the 2nd amendment represents a compromise.

I found this article to be an education as to how that compromise came into effect:
http://www.guncite.com/journals/hardhist.html

There were founding fathers who recognized the people needing arms as a militia and there were others who saw that people outside of a militia needed the right to arms.

I've taken a segment of the article which illustrates that compromise. Take the time to read the entire article, it is well researched.

Further, when Madison outlined the improvements at which the Bill of Rights were aimed, he cited freedom of press and conscience, the right to arms, and other liberties; he gave not a word to the militia.[245] Whatever its value in Madison's eyes, Mason's proclamation that the militia "is the proper, natural and safe defense of a free state" would stay in, albeit with modification and abbreviation.[246]

Madison's choice for the right to keep and bear arms component was less complex. Madison knew from experience that the Virginia/New York/North Carolina model had proven acceptable to all factions in Virginia; indeed, the committee that drafted it had included himself and Richard Henry Lee, one of the Constitution's most prominent opponents. It also had been endorsed by New York and always-vital North Carolina. Moreover, the concise wording of the statement "the people have a right to keep and bear arms," required little editing. A Madisonian touch adding a command that it "shall not be infringed," was all that was needed.

therealnickb
07-25-2012, 11:26 AM
I have to believe the founders would chastise those arguing against the common sense of "peoples" rights. Perhaps a great deal of beotch slapping as well.

Meplat1
07-25-2012, 1:46 PM
And who insures those 2 conditions? A government of the people....... Right?

No, the militia its self. Militias could be called up and drilled in times of need but they were generally drilled by their own elected officers. Remember the original concept was a country without a standing army.

therealnickb
07-25-2012, 2:20 PM
The militia are people too.

Somebody can school me here but from the time our constitution was signed, "We the People" were supposed to be running the show right?

Meplat1
07-25-2012, 2:29 PM
Heller & Mc Donald have superseded much of this argument.




Like many things drafted into law, the 2nd amendment represents a compromise.

I found this article to be an education as to how that compromise came into effect:
http://www.guncite.com/journals/hardhist.html

There were founding fathers who recognized the people needing arms as a militia and there were others who saw that people outside of a militia needed the right to arms.

I've taken a segment of the article which illustrates that compromise. Take the time to read the entire article, it is well researched.

Further, when Madison outlined the improvements at which the Bill of Rights were aimed, he cited freedom of press and conscience, the right to arms, and other liberties; he gave not a word to the militia.[245] Whatever its value in Madison's eyes, Mason's proclamation that the militia "is the proper, natural and safe defense of a free state" would stay in, albeit with modification and abbreviation.[246]

Madison's choice for the right to keep and bear arms component was less complex. Madison knew from experience that the Virginia/New York/North Carolina model had proven acceptable to all factions in Virginia; indeed, the committee that drafted it had included himself and Richard Henry Lee, one of the Constitution's most prominent opponents. It also had been endorsed by New York and always-vital North Carolina. Moreover, the concise wording of the statement "the people have a right to keep and bear arms," required little editing. A Madisonian touch adding a command that it "shall not be infringed," was all that was needed.

Meplat1
07-25-2012, 2:43 PM
The militia are people too.

Somebody can school me here but from the time our constitution was signed, "We the People" were supposed to be running the show right?

The Bill of Rights puts limits on the government by, for, and of the people. Otherwise you have Democracy. Democracy is mob rule. Democracy is two wolfs and a lamb voting on what to have for dinner. The founders knew that democracy was basically and fatally flawed, that is why they opted for a constitutional republic, wherein the rule of the majority is restrained from infringing on human rights. The people are trumped by the constitution in our system, and thank god for that.

1stLineGear
07-25-2012, 3:25 PM
The right of the PEOPLE. the People is refered to as U.S. citizens throughout the constitution. You need not look anyfurther than that.

therealnickb
07-25-2012, 3:49 PM
The Bill of Rights puts limits on the government by, for, and of the people. Otherwise you have Democracy. Democracy is mob rule. Democracy is two wolfs and a lamb voting on what to have for dinner. The founders knew that democracy was basically and fatally flawed, that is why they opted for a constitutional republic, wherein the rule of the majority is restrained from infringing on human rights. The people are trumped by the constitution in our system, and thank god for that.

That's the way I have always understood it.

Maybe you misunderstood my initial point about who controls that which needs to be controlled. And what tools provide us the power to control.

Meplat1
07-25-2012, 5:29 PM
That's the way I have always understood it.

Maybe you misunderstood my initial point about who controls that which needs to be controlled. And what tools provide us the power to control.

Maybe I did. But it is not public opinion, it is the cunstitution.

therealnickb
07-25-2012, 5:57 PM
Maybe I did. But it is not public opinion, it is the cunstitution.

Seems pretty disrespectful unless that was a typo.

I'm not tracking the rest.

billmaykafer
07-25-2012, 5:59 PM
After this latest massacre using an assault weapon we will see a new federal assault weapons and hi cap magazine / repair kit ban, .

an AR-15 is NOT an assault weapon.

arslin
07-25-2012, 7:48 PM
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.

Let me break this down...

First a militia at the time was every male between the age of 16 to 60. The select militia would be the modern national guard, but everyone else was in the general militia.

A "regular" at the time was an infantryman that had been trained to fire up to 3 rounds a minute. The process of training is called "making regular", or "regulating." This word simply means that the militia should be as well trained as a regular infantryman.

Necessary to a free state. The founder were against a standing army. The militia was looked at as the primary form of national defence ...

The rest is very clear...

Full Clip
07-25-2012, 7:59 PM
Well, If Obama gets re-elected and makes more Supreme Court appointments I am sure they will interpret the 2nd amendment just like you....

And the OP seems to be bucking for that slot...

Meplat1
07-25-2012, 8:32 PM
Seems pretty disrespectful unless that was a typo.

I'm not tracking the rest.

Typo, I meant constitution.

southernsnowshoe
07-25-2012, 10:00 PM
Hmmm, so posting differing opinions constitutes trolling?

:rolleyes:



Wtf? its 14 words........14 very simple, clear concise words. The right of the PEOPLE!

But that's ok, let brady keep sending their operatives, and spending their resources. We can all see through that B.S. from a mile away.

ZombieTactics
07-26-2012, 11:16 AM
...

2. Militia as used in 2A is qualified with the words "regulated" and "necessary".

Necessary is pretty obvious as is people. Here is what most have missed IMO.

To regulate means to control. Those that control need the means to do so.

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The boldface in the above quote was added by me for clarity.

PLEASE STOP USING THIS REASONING. "Regulate" did not mean "control" at the time the 2a was written. The common understanding of regulate meant something along the lines of "equip to a common standard". It was common to regulate someone by providing them with some standard-issue piece of equipment. This is precisely what people meant as late as WW2 when they referred to a watch or something as "regulation" ... it was the watch provided by the military for their use. In this sense the 2a serves as both a prohibition against the government controlling your access to firearms, and an encouragement for the citizenry to regulate (or equip) themselves absent such control.

Put in more modern terms, the 2a might read something like this:
"A well-equipped citizenry being necessary to the security of a free state, the right to own weapons and carry them about on their persons shall not be infringed"

therealnickb
07-26-2012, 11:37 AM
I'd buy that reasoning except that it makes no sense. If "regulate" meant only what you say, the entire clause seems redundant.

I think the "well functioning" definition carries more water here.

Regardless if I'm right with my reasoning the comma separating the 2 sentences and the fact that nearly every amendment addresses "people" rights reinforces my contention that the right to bear is clearly a people's right and it shall not be infringed.

therealnickb
07-26-2012, 11:38 AM
Ps I think function to a common standard is more accurate.

IPSICK
07-26-2012, 12:42 PM
The boldface in the above quote was added by me for clarity.

PLEASE STOP USING THIS REASONING. "Regulate" did not mean "control" at the time the 2a was written. The common understanding of regulate meant something along the lines of "equip to a common standard". It was common to regulate someone by providing them with some standard-issue piece of equipment. This is precisely what people meant as late as WW2 when they referred to a watch or something as "regulation" ... it was the watch provided by the military for their use. In this sense the 2a serves as both a prohibition against the government controlling your access to firearms, and an encouragement for the citizenry to regulate (or equip) themselves absent such control.

Put in more modern terms, the 2a might read something like this:
"A well-equipped citizenry being necessary to the security of a free state, the right to own weapons and carry them about on their persons shall not be infringed"

I think if people read the OP, this is what he was trying to get at. We should be able to acquire weapons that are similar to what is common use in the military (AR-15, etc.). His highlights of the SuCo cases he references is used to support his reasoning.

People want to fall back on Heller and McDonald alone. But they fail to realize that though the Heller judgement links self-defense to the 2nd, it also left room open for gun control by mainly focusing on self-defense arms like handguns. This presents a bit of a hurdle with presenting ARs and the like as protected by the 2nd. It runs similar to one of the fatal errors of Miller, as SBS was not deemed in common use (an incorrect assumption) although Miller did highlight the importance of the people being properly equipped. However, the justices at the time missed what that meant.

I may be wrong (because I am not the OP), but I really believe he is trying to establish the reasoning for need/ability to acquire ARs and similar. They are and should protected by the 2nd. Self-defense really should be protected by the 9th as it is not explicitly stated as a right. However, self-defense must be supplemented by the 2nd as having arms helps give us the ability to maintain our natural right to self-defense.