The second amendment

joefromchicago wrote:

Thomas wrote:
Over the last 215 years, our intuitions have changed, and we can no longer rely on intuition to determine what right the authors of the Second Amendment referred to. But we can still rely on those contemporary sources that documented the common understanding of the time. And we have to rely on them because the Second Amendment refers to a pre-existing right without defining it anew.

Well, not quite. The Second Amendment doesn't only refer to the right: it also refers to the reason why the right is protected from congressional interference.

That is not the reason for the right. That is a requirement that the government keep up the militia for national defense.

In this period of time, there was a bias against standing armies and for militias.

It was expressed in the English Bill of Rights, where they curtailed standing armies:

"That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law."

It was expressed when Virginia ratified the Constitution, where they proposed curtailing standing armies and stated that the militia was the proper means of defense:

"that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

And it was expressed in the first part of the Second Amendment, where they simply stated that the militia was the proper means of defense.

joefromchicago wrote:

Thomas wrote:
As it turns out, these sources give a pretty consistent picture of how the right to hold and bear arms was understood when the Founders wrote the Second Amendment.

Not so. The state constitutions define the right differently, and the English Bill of Rights differs from all of them. Are you saying that the drafters of the Second Amendment understood the right to bear arms the same way that Massachusetts did ("The people have a right to keep and to bear arms for the common defence") and Rhode Island did ("The right of the people to keep and bear arms shall not be infringed") and Virginia did ("That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power")? How do these differing provisions describe the same right?

The right expressed is simply a right to keep arms at home and bear them in a militia as a militia member. The same right, just expressed with different words.

joefromchicago wrote:

Thomas wrote:
It is clear, from these sources and from the language of the Bill of Rights itself, that was understood as an individual right, not a State right.

So when the Virginia constitution referred to the dangers of standing armies and the need for a militia to provide for the common defense, that was an unambiguous grant of an individual right?

That was a predecessor of the first half of the Second Amendment, not of the part with the individual right. But "composed of the body of the people" does indicate a desire to have everyone armed as a militiaman.

joefromchicago wrote:

Thomas wrote:
It is reasonably clear that it is a right to hold and bear arms both in and outside the militia. The English Bill of Rights, Blackstone and some State constitutions explicitly say so, other State Constitutions don't explicitly protect the right outside of the militia, but don't explicitly deny it either. It is also clear from the sources that this right never applied to all arms that people might want to bear and hold. ("suitable to their conditions, and as allowed by law.") On the face of it, these qualifications seem consistent with a significant amount of modern gun safety regulation.

Well, in the case of the English Bill of Rights, it would seem that the qualifications would be consistent with a total ban on gun ownership (which is practically the case today in the UK).

The qualifications were not consistent with a total ban. The terms "suitable to their conditions" or "suitable to their condition and degree" were a reference to militia laws requiring people of various economic standings to maintain various levels of military hardware.

The qualifications were consistent with any ban of weapons not used by the militia, but banning militia arms would violate the right.

When England imposed their draconian gun laws, they effectively repealed the right.

joefromchicago wrote:

Thomas wrote:
So yes, you can eliminate fundamental rights by ignoring them, refusing to rule on them, or 'interpreting' them to mean the opposite of how everybody else understands the language, and by dismissing citizens who object as amateurs at best, fanatics at worst. Not to say that the Supreme Court is even close to communist Eastern Europe in this regard, but yes, I do think that the Supreme Courts decisions to rule on only one Second Amendment case in the whole 20th century has had the effect of eroding that right.

Not to get all ad hominem on you, Thomas, but I gather from this that you don't have much familiarity with the process of "incorporation" of the Bill of Rights. The supreme court has not ruled on the Second Amendment because there has been no reason to rule on it: since the amendment does not apply to the states (having never been "incorporated" into the Fourteenth Amendment"), various state efforts to enact gun legislation do not implicate any Second Amendment rights. Indeed, a state could outlaw private gun ownership completely and not run afoul of the Second Amendment. And the federal government has done so little to restrict gun ownership that there simply have been very few cases to test the limits of the amendment.

The fact that the Supreme Court has not yet incorporated the Second Amendment only means that they are ignoring the Fourteenth Amendment requirement that it be applied to state and local government.

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Setanta wrote:

Just to fall back to the original bone being chewed here, the first clause of this amendment--A well regulated Militia, being necessary to the security of a free State . . . is often ignored or opening discounted by proponents of unregulated gun ownership.

Well, the requirement that the government maintain the militia is somewhat different from the requirement that people be allowed to keep arms at home and bear them in the militia, so someone supporting one of requirements does not necessarily have to see the other as relevant to their case.

Setanta wrote:

Note the word "protestant." Catholics were not allowed to participate in the militia.

They weren't???

They weren't allowed to stockpile militia arms, certainly, but I know of no prohibition of them serving in the militia.

Setanta wrote:

Further, by act of Parliament, participation was restricted on property qualifications, much as was the very limited franchis which obtained until late in the 19th century.

What act are you speaking of?

People of varying degrees of wealth were certainly required/allowed to have varying levels of arms, but I've never heard of poor people being barred from militia service.

At any rate, the right in the US did not apply to Protestants or the wealthy. Here the right applies to the people.

Setanta wrote:

Furthermore, the rather vague wording "well regulated" leaves up in the air the question of what constitutes such regulation.

"Well regulated" only means that the militia has trained well enough so that they can fight as a single coordinated unit instead of as a bunch of individuals.

Setanta wrote:

The constitution gives to Congress the power to provide for the arming of the militia and to prescribe their training, reserving to the states the appointment of it's officers. Although i know of no legal test which has been made, it seems clear to me that proponents of unrestricted gun ownership want to ignore both the first clause of this amendment, and the power granted Congress to provide for arming the militia.

There is no reason why they shouldn't ignore them.

Setanta wrote:

Apart from the ludicrous notion of individuals relying upon Smith and Wesson to provide them the means to opposed a heavily armed and experienced police force,

If we are taking militia arms, we are not talking of Smith and Wessons -- more along the lines of automatic rifles with AP ammo.

Setanta wrote:

In short, a debate of this amendment's meaning and current validity is a red herring for what is essentially an appeal outside the law to a right not guaranteed--unrestricted gun ownership.

Few gun rights advocates argue for "no restriction". Mostly we appeal to the right that *is* guaranteed: the right to have militia arms.

It's no red herring to argue for our civil rights being upheld.

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Setanta wrote:

"gun nuts" (a term i will not again use, as it smacks of ad hominem)

Thank you.

Setanta wrote:

claim to have the "founding fathers" on their side, and in so saying ignore several things. They ignore the historical context in which so many state legislatures agreed that the constitution were unacceptable without amendment, and that among those amendments, was one which was drafted by their representatives met in Congress, and which is not Jefferson's Virginia militia ordnance, and which eschews the tone and tenor of that, and many other more extreme statements of what 18th century American political thinkers believed about a militia.

Most of the gun rights advocates that I know don't ignore it. In fact they focus on it.

Setanta wrote:

It ignores Shays' rebellion and a host of simliar events, which preceded the amendment of the constitution, and in which a body of armed men representing what was demonstrably a minority of public sentiment challenged the Commonwealth of Massachusetts, as other states were challenged, in arms.

Any reason why that shouldn't be ignored?

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The 2nd amendement is, argueably, our most powerful right. The right to armed dissent. All these people doing their damndest to dissect or legislate it into obscurity and irrelevance are either idiots or pro government democrats; if you can distinguish between the two. Suspicious.

Perhaps you should think of the consequences of screwing with our rights, instead of the perceived righteousness of it. You will create a class of criminals overnight. I will be amongst them. Guns can be made in a machine shop, they are not complex. A black market for weapons will arise. The government will have even less control of weapons because everyone will deny their ownership of them. This isnt Europe, we're not cowed like they are.

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Re: Second Amendment Poll

oralloy wrote:

The right is about the individual's interest in being in the militia.

I suppose that indirectly it is related to the state's interest in the militia, because the reason the Framers explicitly protected the individual's interest was because by doing so they would protect the militia itself. But the state's interest is not really a factor in determining the scope of the right.

Sorry, this has me even more confused. But perhaps I can clear things up with a hypothetical. Suppose citizen A, an able-bodied male between the ages of 20 and 40, wants to become a member of the active militia of a state. Does the Second Amendment protect A's "right" to join? If so, does it protect that right only to the extent of preventing federal intereference, or does it preclude the states from interfering as well?

oralloy wrote:

Unless the state constitutions all refer to the same right that was created in the English Bill of Rights (which I contend is the case).

If the state constitutions all refer to the right created in the EBR, why are they worded differently? Why don't they, for instance, mention anything about the right being restricted to Protestants?

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oralloy wrote:

joefromchicago wrote:
The Second Amendment doesn't only refer to the right: it also refers to the reason why the right is protected from congressional interference.

That is not the reason for the right. That is a requirement that the government keep up the militia for national defense.

Then the Second Amendment makes no sense as it is written.

oralloy wrote:

The right expressed is simply a right to keep arms at home and bear them in a militia as a militia member. The same right, just expressed with different words.

So then you'd agree with Justice McReynolds that the only arms protected under the Second Amendment are those arms that are suitable for use in the militia?

oralloy wrote:

That was a predecessor of the first half of the Second Amendment, not of the part with the individual right. But "composed of the body of the people" does indicate a desire to have everyone armed as a militiaman.

If the drafters of the Bill of Rights intended to incorporate the same right as was found in the Virginia constitution, they could have copied the text into the Second Amendment. But they didn't.

oralloy wrote:

The qualifications were not consistent with a total ban. The terms "suitable to their conditions" or "suitable to their condition and degree" were a reference to militia laws requiring people of various economic standings to maintain various levels of military hardware.

The qualifications were consistent with any ban of weapons not used by the militia, but banning militia arms would violate the right.

When England imposed their draconian gun laws, they effectively repealed the right.

The EBR states that the right is subject to the law: "That the subjects which are Protestants may have arms for their defence, suitable to their conditions, and as allowed by law." Thus, any subsequent act of parliament could change the right, or even eliminate it. That interpretation is consistent with English political history and with English jurisprudence.

oralloy wrote:

The fact that the Supreme Court has not yet incorporated the Second Amendment only means that they are ignoring the Fourteenth Amendment requirement that it be applied to state and local government.

So you'd take a "full incorporationist" position with regard to the Bill of Rights, correct?

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The U.S. Constitution: Second Amendment wrote:

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.

It's interesting that it says "Arms", not guns or knives. In those days, it might have included dynamite. Today it might include hand grenades, missile launchers or thermo nuclear weapons.

My interpretation of the second amendment is that the founders did intend for people to be sufficiently armed to overthrow their governments if they so desired. I think this harkens back to the motives stated in the declaration of independence.

However, the world, and the nature of "Arms", has changed so much over the years that I don't think a fundamentalist interpretation of the second amendment is acceptable any more. It's pretty clear that we can't let just anyone keep nuclear weapons in their basement, and we probably don't feel good about rocket launchers either, so the second amendment must already be administered by a matter of degree.

If we argue however that the root motivation behind the second amendment still remains, then the interpretation must be that the people must be allowed to own such Arms as to effectively counter the state (or federal) police forces in dread anticipation of such a time when these governments might need to be overthrown.

In this day and age, the need to overthrow the police force seems ridiculous, but we might feel differently if in two hundred years, if we've lost control of our government and no longer have the ability to elect our leaders without corporate consent (a condition which may be fast approaching reality).

Quote:

The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

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joefromchicago wrote:

So then you'd agree with Justice McReynolds that the only arms protected under the Second Amendment are those arms that are suitable for use in the militia?

If McReyonlds had been sitting on the Court 50 years later with he Miller case he might very well have been deciding it the other way. Since sawed-off shotguns were being used in Vietnam he couldn't really say that they had no use in a militia. It's kind of a funny choice of words actually since pretty much every type of firearm out there has been used in combat in one war or another.

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oralloy wrote:

Setanta wrote:
Just to fall back to the original bone being chewed here, the first clause of this amendment--A well regulated Militia, being necessary to the security of a free State . . . is often ignored or opening discounted by proponents of unregulated gun ownership.

Well, the requirement that the government maintain the militia is somewhat different from the requirement that people be allowed to keep arms at home and bear them in the militia, so someone supporting one of requirements does not necessarily have to see the other as relevant to their case.

Nonsense, participation in the militia under the terms of Article I, section 8 meant submitting the the power of the Congress to both provide for arming the militia, and prescribing their discipline. You would ignore that only willfully, not as a logical consequence of a convenient indifference.

Quote:

Setanta wrote:
Note the word "protestant." Catholics were not allowed to participate in the militia.

They weren't???

They weren't allowed to stockpile militia arms, certainly, but I know of no prohibition of them serving in the militia.

Never heard of the Test Act, huh? You many not know of something in the historical record, but that in no way erases the fact of its inclusion therein.

Quote:

Setanta wrote:
Further, by act of Parliament, participation was restricted on property qualifications, much as was the very limited franchis which obtained until late in the 19th century.

What act are you speaking of?

People of varying degrees of wealth were certainly required/allowed to have varying levels of arms, but I've never heard of poor people being barred from militia service.

At any rate, the right in the US did not apply to Protestants or the wealthy. Here the right applies to the people.

The relevant acts would be Protectorate, 1641; Protectorate, 1645; Charles II, 1662; George II, 1757; George III, 1808; George, Prince Regent, 1816. There were later militia acts at the time of the Great War, and the militia was eventual replaced by the Territorials as a means of preparing men for eventual conscription.

The acts in 1645 under the Lord Protector and in 1662 in the Restoration Parliament were particularly pernicious. There were not only property tests (you might read the thread i did of a biography of Oliver Cromwell, and get some idea of why powerful men in England in the period of the Civil Wars thought it expedient to disarm the common man), but there were religious and political tests as well. In the "Barebones" Parliament, the object was to remove royalists as well as catholics; the Restoration Parliament excluded republicans and Catholics. Charles II was inclined to treat catholics well--after the defeat of his army at Worcester in 1651, he had escaped England and the Parliamentary man-hunt that was on to capture him because English catholics hid him in their homes, and passed him along to the coast. But the Restoration Parliament was having none of that, and they in fact strengthened the Test Act, the Exclusion Act and the Acts of Suppression (the first required avowing the creed of the Church of England in order to hold public office--from game warden to Chancellor of the Exchequer, the act was applied throughout the Kingdom at all levels; the Exclusion act specifically prohibited Catholics and other "dissenters" from holding commissions in the armed forces, including the militia; the Acts of Suppression were specifically passed to impose financial and property ownership debilities upon Catholics and Dissenters). The Occassional Conformity Act was also passed, in the attempt to trap those who attended a single Anglican service before standing for public office or purchasing a military commission--and thereby use that single act as a means of evading the restrictions of the Test Act. The Occassional Conformity Act required regular attendance upon divine service as approved by the royal goverment, and provided for severe punishment for Catholics and Dissenters who hoped to use "occassional conformity" to evade the provisions of the Test Act.

You seem to have missed the point of what i was writing altogether. Your thesis is all over the road. The second amendment was framed precisely with such restrictions in mind. In the 17th and 18th Centuries, Holland was probably the only nation in Europe which did not have a religious test for participation in the militia and the army, and they did have a property qualification (and at all events, there, as everywhere else, officers had to purchase their commissions) and they definitely excluded Catholics from their otherwise universal tolerance. The entire point of the amendment is to assure that no citizen could be exluded. This is not just a phenomenon of the West either--Oda Nobunaga disarmed the peasants in Japan in the late 16th century, and his eventual successor, Tokugawa Ieyasu, who established the Tokugawa Shogunate (1624-1838) made keeping arms a capital offense. When Chakha established Kwa-Zulu in southern Africa in the early 19th Century, his regiments immediately disarmed all the other Bantu-speaking tribes which they dominated, and other tribesmen could only bear arms upon application to and adoption into the military societies of Kwa-Zulu. In fact, the 1662 Militia Act held that any two deputies of the Militia had the power of search and seizure in the home of any Englishman deemed to be "dangerous to the Peace of the Kingdom." This wording was much more vague than any preceeding or successive Militia Act, and that was no accident. When the Agitators of the New Model presented their petition and demanded the adoption of The Agreement of the People, Cromwell and the Grandees (the Major Generals) of the Army moved quickly to divide and round up the Agitators, and in particular, Gerard Winstanley was executed. With the New Model purged, the Major Generals moved quickly, occupied London, and hunted down the Levelers. Like Colonel Pride's Purge of Parliament, the object was to remove those who were, for political or religious reasons, not "politically correct."

The entire point of what i have written is to point out that the legacy of militias in Europe and England lead to the adoption of the second amendment to assure that the militia would not be exclusionary. It is ludicrous to contend that it had as a purpose to establish or protect some vague right for anyone to arm themselves as they pleased.

Quote:

Setanta wrote:
Furthermore, the rather vague wording "well regulated" leaves up in the air the question of what constitutes such regulation.

"Well regulated" only means that the militia has trained well enough so that they can fight as a single coordinated unit instead of as a bunch of individuals.

This is simply a statement from authority on your part, and i have no reason, especially in light of what you have written hitherto, to assume that you possess said authority. I refer you to the 15th and 16th clauses of Article I, Section 8, of the constitution:

[Congress shall have the Power . . . ]

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Your statement is imprecise and without foundation, apart from what you apparently believe and would like us to believe.

Quote:

Setanta wrote:
The constitution gives to Congress the power to provide for the arming of the militia and to prescribe their training, reserving to the states the appointment of it's officers. Although i know of no legal test which has been made, it seems clear to me that proponents of unrestricted gun ownership want to ignore both the first clause of this amendment, and the power granted Congress to provide for arming the militia.

There is no reason why they shouldn't ignore them.

See the post above, in which the specific powers of Congress with regard to the Militia are delineated.

Quote:

Setanta wrote:
Apart from the ludicrous notion of individuals relying upon Smith and Wesson to provide them the means to opposed a heavily armed and experienced police force,

If we are taking militia arms, we are not talking of Smith and Wessons -- more along the lines of automatic rifles with AP ammo.

In which case you are either talking through your hat, or you're talking armed insurrection. I suspect the former applies. The "lines" along which you talk are unrealistic and illegal.

Quote:

Setanta wrote:
In short, a debate of this amendment's meaning and current validity is a red herring for what is essentially an appeal outside the law to a right not guaranteed--unrestricted gun ownership.

Few gun rights advocates argue for "no restriction". Mostly we appeal to the right that *is* guaranteed: the right to have militia arms.

It's no red herring to argue for our civil rights being upheld.

It is, however, a red herring to suggest that the First Congress intended to create a heavily armed populace, especially after experiences such as Shays' Rebellion, or an effectively ungoverned and ungovernable force of militia. You have the right to militia arms--the passage of the constitution quoted above clearly gives Congress the right to determine what such arms will be, not you.

You haven't done your homework.

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Re: Second Amendment Poll

joefromchicago wrote:

oralloy wrote:
The right is about the individual's interest in being in the militia.

I suppose that indirectly it is related to the state's interest in the militia, because the reason the Framers explicitly protected the individual's interest was because by doing so they would protect the militia itself. But the state's interest is not really a factor in determining the scope of the right.

Sorry, this has me even more confused. But perhaps I can clear things up with a hypothetical. Suppose citizen A, an able-bodied male between the ages of 20 and 40, wants to become a member of the active militia of a state. Does the Second Amendment protect A's "right" to join?

Yes.

joefromchicago wrote:

If so, does it protect that right only to the extent of preventing federal intereference, or does it preclude the states from interfering as well?

Without the Fourteenth Amendment, it would only restrict the federal government. But if the courts were properly upholding the Fourteenth Amendment, it would be incorporated.

joefromchicago wrote:

oralloy wrote:
Unless the state constitutions all refer to the same right that was created in the English Bill of Rights (which I contend is the case).

If the state constitutions all refer to the right created in the EBR, why are they worded differently?

Different authors write things differently.

joefromchicago wrote:

Why don't they, for instance, mention anything about the right being restricted to Protestants?

The Founding Fathers expanded the right a little when they created a society that rejected "establishment of religion" and concepts like nobility and royalty.

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joefromchicago wrote:

oralloy wrote:
joefromchicago wrote:
The Second Amendment doesn't only refer to the right: it also refers to the reason why the right is protected from congressional interference.

That is not the reason for the right. That is a requirement that the government keep up the militia for national defense.

Then the Second Amendment makes no sense as it is written.

Think of the first half of the amendment as just a reflection of the sentiment that standing armies are bad and militias are good.

The sentiment was reflected in the English Bill of Rights when they restricted standing armies:

"That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law."

It was reflected in the Virginia Declaration of Rights when they both supported the militia and restricted standing armies:

"That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

And then in the first half of the Second Amendment, they only voiced support for the militia.

joefromchicago wrote:

oralloy wrote:
The right expressed is simply a right to keep arms at home and bear them in a militia as a militia member. The same right, just expressed with different words.

So then you'd agree with Justice McReynolds that the only arms protected under the Second Amendment are those arms that are suitable for use in the militia?

In general, yes. I think the court could have gotten away with being a little more restrictive. My reading of the ruling is that they would extend the right to non-militia members so long as the militia had some benefit from non-members having such arms. I think they could have limited it to people who actually are members of the militia.

joefromchicago wrote:

oralloy wrote:
That was a predecessor of the first half of the Second Amendment, not of the part with the individual right. But "composed of the body of the people" does indicate a desire to have everyone armed as a militiaman.

If the drafters of the Bill of Rights intended to incorporate the same right as was found in the Virginia constitution, they could have copied the text into the Second Amendment. But they didn't.

Madison seemed to have a thing for extremely concise amendments.

The Virginia Ratifying Convention gave him:

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

"19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead."

And he gave Congress:

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

joefromchicago wrote:

oralloy wrote:
The qualifications were not consistent with a total ban. The terms "suitable to their conditions" or "suitable to their condition and degree" were a reference to militia laws requiring people of various economic standings to maintain various levels of military hardware.

The qualifications were consistent with any ban of weapons not used by the militia, but banning militia arms would violate the right.

When England imposed their draconian gun laws, they effectively repealed the right.

The EBR states that the right is subject to the law: "That the subjects which are Protestants may have arms for their defence, suitable to their conditions, and as allowed by law." Thus, any subsequent act of parliament could change the right, or even eliminate it. That interpretation is consistent with English political history and with English jurisprudence.

I agree that they can (and did) eliminate it, but I take "as allowed by law" to mean that Parliament could regulate what the subjects did with the arms they were allowed to have. For instance, they hypothetically might tell people that they couldn't carry their musket around in public, even though they had the right to have a musket.

joefromchicago wrote:

oralloy wrote:
The fact that the Supreme Court has not yet incorporated the Second Amendment only means that they are ignoring the Fourteenth Amendment requirement that it be applied to state and local government.

So you'd take a "full incorporationist" position with regard to the Bill of Rights, correct?

I think so. But I reserve the right to make an exception if doing so seems to follow the intent of the Fourteenth Amendment.

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Setanta wrote:

The entire point of what i have written is to point out that the legacy of militias in Europe and England lead to the adoption of the second amendment to assure that the militia would not be exclusionary.

The amendment certainly does assure that, but that is hardly the reason it was adopted.

The anti-Federalists were concerned that the power given Congress to arm the militia might be abused in just the way you are suggesting that they could use it to limit arms, and the Bill of Rights was passed to address all the fears the anti-Federalists were raising.

Note Patrick Henry's dissent at the Virginia Ratifying Convention:

"Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, {52} when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States -- reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither -- this power being exclusively given to Congress."

Setanta wrote:

oralloy wrote:
"Well regulated" only means that the militia has trained well enough so that they can fight as a single coordinated unit instead of as a bunch of individuals.

This is simply a statement from authority on your part, and i have no reason, especially in light of what you have written hitherto, to assume that you possess said authority.

The usage of the word can easily be discerned by seeing how it was actually used at the time, such as in Federalist #29 where Alexander Hamilton argues that the entire body of the people should not endure militia training, just a select group:

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a WELL-REGULATED militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Setanta wrote:

oralloy wrote:
Setanta wrote:
Apart from the ludicrous notion of individuals relying upon Smith and Wesson to provide them the means to opposed a heavily armed and experienced police force,

If we are taking militia arms, we are not talking of Smith and Wessons -- more along the lines of automatic rifles with AP ammo.

In which case you are either talking through your hat, or you're talking armed insurrection. I suspect the former applies. The "lines" along which you talk are unrealistic and illegal.

I am doing neither. I am pointing out the type of arms used by modern militias (especially the Swiss Militia, which is the closest modern equivalent to what the Framers intended). And there is nothing illegal about insisting that the government allow people to have the types of arms that we have the right to have.

oralloy wrote:

Setanta wrote:
Few gun rights advocates argue for "no restriction". Mostly we appeal to the right that *is* guaranteed: the right to have militia arms.

It's no red herring to argue for our civil rights being upheld.

It is, however, a red herring to suggest that the First Congress intended to create a heavily armed populace, especially after experiences such as Shays' Rebellion,

A segment of the first militia act:

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack."

Setanta wrote:

or an effectively ungoverned and ungovernable force of militia.

There is nothing in the Second Amendment that would keep the militia from being governed.

Setanta wrote:

You have the right to militia arms--the passage of the constitution quoted above clearly gives Congress the right to determine what such arms will be, not you.

Congress has the right to decide so long as it doesn't come into conflict with the Second Amendment right to have militia arms.

If they restrict the quality of the arms so that they are clearly not of a character that a militia would use, the courts have the power to step in and overrule them. And I have the right to make a case to the courts that this should be done.

0 Replies

rosborne979 wrote:

The U.S. Constitution: Second Amendment wrote:
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.

It's interesting that it says "Arms", not guns or knives. In those days, it might have included dynamite. Today it might include hand grenades, missile launchers or thermo nuclear weapons.

I don't think dynamite existed back then.

Regarding militia guns, there are three broad classes that they should be placed in.

First, there are weapons of the sort that are the minimal armaments that people would be expected to use in a militia. These are covered by the Second Amendment, and the courts would be right to force the government to let militiamen have them if the government were inclined to prevent the militia from having competent weapons.

Second, there are the weapons that are of militia use, but beyond the minimum needed. These could be allowed in the militia arsenal if the government saw fit, but would not have to be allowed.

Third, there are weapons that would never be used by any militia.

Given that every fighting force around the world uses automatic rifles at a minimum, these weapons would fall into the first class. Also, the one example that really fits what the Framers intended for America's militia (the Swiss Militia) uses automatic rifles.

AP ammo is quite often used around the world, and should fall into this class of weapon too.

The second class, those that can be used by a militia but don't necessarily have to be, would include shoulder-fired rocket launchers, hand grenades and short-barreled shotguns.

Thermonuclear weapons are among those weapons that would never be used by a militia.

0 Replies

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