Constitutional Conundrum?

In fact, although i have not brought this up before, i consider that well-regulated has no military meaning at all, and that you are building castles in Spain when you inferentially claim it does. The meaningful context which i see for "well regulated" is the recognition by the authors of the fourth proposed amendment that Congress had already been granted the power to regulate the militia under Article One, Section 8 (prior to its ratification, that amendment was the fourth amendment proposed and sent to the states--the first proposed amendment has never been ratified, and realisistically never will be; the second proposed amendment was ratified in May, 1992, and has become the XXVIIth Amendment).

The use of the language "well regulated" allows that amendment to expand and clarify the constitutional references to the militia without abrogating the powers granted to Congress with respect to the militia, which includes to provide for arming the militia:

(Congress shall have the 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;

You're not making convincing arguments here, especially when you attempt to claim that "well regulated" ever had any meaning with regard to "military corps." The Constitution nowhere discusses military organizational or operational doctrine, and in the paragraph quoted above, gives to Congress the power to prescribe the training of the militia through its power to provide for the discipline of the militia. You have absolutely not textual or logical basis for the claim: " . . . the fact that the term has a specific meaning when one is discussing military corps and that definition has nothing to do with "regulations" issued from a legislative body." In fact, Congress is specifically empowered to regulate the militia. Were that not so, the Dick Act which created the National Guard would be unconstitutional.

I'm up for the entertainment if you think you can make that case.

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^
Nazis.

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^
Dumbass

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It's obvious the downtrodden liberals want to take away our guns so they can easily steal what isn't theirs. Nazis one and all.

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joefromchicago wrote:

Let's just concentrate on this one issue -- you have a habit of drifting, and I want you to remain focused on this particular point, for it seems clear to me that, if the congress cannot completely disband the states' militias, then Heath's argument doesn't work.

Sure it "works" because Heath's premise is simply that Tot's opinion (and subsequent opinions based on Tot's determination) are without support. The extent of federal preemption has for all intents and purposes, negated the state's right theory. You are free to hold up that nondescript sliver of power the states retain as representing the scope and force of the 2nd Amendment . . . it would be comical if it weren't so pitiful.

Now the dimension of these "state defensive forces" have been added to the argument. That is even a sadder state of affairs.

Let's review for a moment . . . Tot's opinion says the 2nd Amendment, "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power." Well we have seen that the feds have pretty much used up every possible encroachment they could think of, leaving for the states to control such important matters like whether the latrine's toilet paper is one or two ply.

Since the feds have taken the field and eliminated the former state militia system, Congress, either as a constitutional loophole or merciful permission, has granted to the states a power to form a "defensive force" at their own expense . . . This is now supposed to satisfy the state's right interpretation of the 2nd, even though only 2/3 of the states have ever mustered this half-assed group of park rangers? Excuse me while I laugh out loud.

joefromchicago wrote:

I suppose one can interpret the debate on the bill to disband the militias of the Deep South states as respecting the rights of individuals to own firearms.

Really, that must have hurt . . . it's easier if you try to keep your focus on why Congress was discussing this action . . . to protect those free Blacks being disarmed in violation of the federal 2nd Amendment by those "untouchable" state militias enforcing discriminatory state law . . .

joefromchicago wrote:

And none of the senators who participated in that debate suggested that congress had the right to disband the state militias permanently.

No, just long enough to make sure that official state militias were not enforcing discriminatory state law disarming free Blacks in violation of the federal 2nd Amendment.

joefromchicago wrote:

As with many bills adopted to suppress and control the South during Reconstruction, the measure was designed to be in place only so long as the extraordinary situation lasted. Consequently, as an authoritative interpretation of the second amendment, it has little value.

It is amazing how those times are ignored by anti- gun rights people . . . there was no mystery or confusion about what the 2nd Amendment said or what it protected then. Anti-individual gun rights theory starts in 1942 and that is an insurmountable hurdle for your side.

joefromchicago wrote:

Not really. As I pointed out before, the "disarm" part of the bill was dropped as part of a political compromise.

It was dropped after a direct appeal to the 2nd Amendment as an individual right and the statement that because of that fact, the Senate had no authority to consider such action:

Senator Hendricks -

"I am not able to see how the proposal can be adopted by the Senate, in view of the second article of the Amendments to the Constitution which declares, "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 this infringes on the right of the people to bear arms we have no authority to adopt it. This provision does not relate to States alone; it relates to people, wherever they may be under the jurisdiction of the United States. Of course in time of war people bearing arms in hostility to the Government would not be protected by this provision of the Constitution; but when there is no war, in a time of peace, certainly the provision of the Constitution applies now, if it ever does."

In response to Senator Hendricks' argument, Senator Wilson conceded in part saying,

"I am willing, however, to modify the amendment by striking out the word "disarmed." Then it will provide simply for disbanding these organizations."

joefromchicago wrote:

Whether the senators who supported the final version of the bill really believed that they were constrained by the second amendment to allow individuals to continue owning firearms is simply unknown.

Congress was animated to enact this because freemen were being disarmed in violation of the 2nd and they were constrained by the 2nd from disarming the individual citizen of the state's militia doing the unlawful disarming . . . How on earth do you argue the Senate was unsure of the 2nd's action and scope?

joefromchicago wrote:

But then none of this really answers my question, so I'll put it to you again: Can the federal government eliminate all state militias?

You know what Joe, why don't you tell us what powers the states retain and how that fulfills Tot's states right theory of the 2nd. Tell us how what's left still extinguishes the individual rights interpretation?

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fisherman_obx wrote:

Sure it "works" because Heath's premise is simply that Tot's opinion (and subsequent opinions based on Tot's determination) are without support. The extent of federal preemption has for all intents and purposes, negated the state's right theory.

No it hasn't. Read Perpich. That's a supreme court opinion, unlike Tot.

fisherman_obx wrote:

Since the feds have taken the field and eliminated the former state militia system, Congress, either as a constitutional loophole or merciful permission, has granted to the states a power to form a "defensive force" at their own expense . . . This is now supposed to satisfy the state's right interpretation of the 2nd, even though only 2/3 of the states have ever mustered this half-assed group of park rangers? Excuse me while I laugh out loud.

Are you suggesting that states are obligated to maintain militias by the second amendment?

fisherman_obx wrote:

It is amazing how those times are ignored by anti- gun rights people . . . there was no mystery or confusion about what the 2nd Amendment said or what it protected then. Anti-individual gun rights theory starts in 1942 and that is an insurmountable hurdle for your side.

What makes you think that the interpretation placed on the second amendment in 1868 has more validity than one placed on it in 1942?

fisherman_obx wrote:

joefromchicago wrote:
But then none of this really answers my question, so I'll put it to you again: Can the federal government eliminate all state militias?

You know what Joe, why don't you tell us what powers the states retain and how that fulfills Tot's states right theory of the 2nd. Tell us how what's left still extinguishes the individual rights interpretation?

You ignore my questions and then expect me to answer yours? Sorry, fisherman, that dog won't hunt. This is now your third opportunity to answer my question: Can the federal government eliminate all state militias? Once you've answered my question, we can proceed to address yours.

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Setanta wrote:

In fact, although i have not brought this up before, i consider that well-regulated has no military meaning at all, and that you are building castles in Spain when you inferentially claim it does.

There are some examples of contemporaneous usage of the term that can be examined.

Let's first examine The Federalist #29:

"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."

The yeomanry were the landholders, presumably farmers, who would be taken from their essential work for such intensive training. Hamilton recognizes that cooperation of all the citizens for such a training regimen could only be achieved through an unacceptable mandate from government, ("To oblige the great body"). The adding of, "and of the other classes of citizens" is a direct refutation and condemnation of the exclusions outlined in English common law and their bill of rights that the framers held in contempt. That general inclusion, of every class of citizen, without regard for land ownership, religion or title told the people that no exclusions or qualifications attached to a citizen's status were to be enacted or inferred by the proposed constitution.

And for this discussion, it is plainly clear that well regulated, as used to describe militia, does not mean controlled by any legislative body. Well regulated is merely an accolade; it describes a quality; "the character of" the unit and the men. That description is earned. It is earned only after demonstrating expertness in military readiness and order ("acquire the degree of perfection"). It is a description that is bestowed ("entitle them to"), not an formal, rigid condition that can be ordered to exist or legislated into being from Washington or any statehouse.

We could also examine floor debates of the Continental Congress:

"The Board of War, to whom were referred the letters from Brigadier General Conway, brought in a report, which was taken into consideration; Whereupon, Resolved, As the opinion of this Congress, that it is essential to the promotion of discipline in the American army, and to the reformation of the various abuses which prevail in the different departments, that an appointment be made of inspectors general, agreeable to the practice of the best disciplined European armies: Resolved, That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army. Resolved, That the duty of these officers be as follows: To review, from time to time, the troops, and to see that every officer and soldier be instructed in the exercise and manoeuvres which may be established by the Board of War: that the rules of discipline are strictly observed, and that the officers command their soldiers properly, and do them justice."

Journals of the Continental Congress-
SATURDAY, DECEMBER 13, 1777

So, in order to promote order, Congress is appointing an inspector general.

In order for that inspector to reform the forces into a well regulated condition, he must be familiar with what constitutes a well regulated force.

Congress then tells us what the criteria is; an understanding of "the general economy, manoeuvres and discipline of a well regulated army."

The IG will certify progress is being made by checking, "from time to time," that the proper maneuvers are taught, rules of discipline are followed, and the officers treat their subordinates fairly.

If well regulated simply meant under governmental regulations, why didn't Congress just pass a law establishing the desired level of discipline? After all, in this case it is the Continental Army we are talking about, not the militia, nobody questions that Congress has complete legislative and regulatory control over the army at all times.

Or, could "well regulated", when discussing the "general economy, manoeuvres and discipline" of a military force, just mean "properly functioning" and "in operational order and condition"?

Mentally replace well regulated in the Congressional excerpt above with any euphemism for law, or regulation, or governmental control and re-read it.

Does it continue to convey the intent of Congress to appoint an inspector general, whose knowledge of military affairs will aid in restoring order to the force?

Now replace it with properly functioning. . . Wow, isn't that neat?

I admit, "regulated" in this use is an obsolete term and one must refer to old dictionaries to find those uses. There are other uses of the word that have been "lost" that are closely linked to the "properly functioning" definition.

Examples:

Horology: A portable timepiece which has been designed and adjusted so it will keep time in the different positions in which it may be carried and kept (and perhaps at the different temperatures that it may encounter) is said to be "regulated" and likely has this word stamped or engraved on its back-plate . . .

Firearms: The adjustment of a multi-barrel firearm (e.g., a double barreled shotgun or three barreled drilling) so that the barrels shoot to the same point-of-aim. If such a gun fails to shoot properly, it is considered to be "out of regulation" and needs to be "re-regulated."

By extension, a "well regulated watch" or a "well regulated double barreled shotgun" both would have meaning of "having been put into properly functioning condition".

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Quote:

Your definition does not change the fact that the term has a specific meaning when one is discussing military corps and that definition has nothing to do with "regulations" issued from a legislative body.

This is your original statement. The language of neither the Constitution, nor the IInd Amendment to the Constitution, support this claim on your part, even when referred to the meanings of late 18th century English usage. The first clause of the IInd Amendment in speaking of a "well-regulated militia" obviously refers to the powers granted to Congress in Article I, Section 8--they have a specific purpose of assuring that the "shall not be infringed" clause does not abrogate the powers already given Congress to regulate the militia. One of those powers to was prescribe the discipline of the militia. Military exercises and evolutions means precisely that training entailed in a prescriptive discipline. You fail to make your case for a "military corps;" furthermore, the direct opposite is true with regard to "regulations issued from a legislative body." The first clause of the amendment protects the Congress' power to issue regulations.

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joefromchicago wrote:

Are you suggesting that states are obligated to maintain militias by the second amendment?

No, what I mean is that I am disgusted that under your hypothesis the 2nd's action has been snipped and cut away as the state power has been snipped and cut away . . . I keep asking you what's left, what is the orbit of the 2nd now . . .

joefromchicago wrote:

What makes you think that the interpretation placed on the second amendment in 1868 has more validity than one placed on it in 1942?

Uhhh because the 1942 opinion has absolutely no relationship with the Constitution? Let's inspect Cases and how it explains the only reasonable determination to be found in Miller and then, without any substantiation, dismisses it and substitutes their personal opinion . . . Tot is even worse . . .

joefromchicago wrote:

Can the federal government eliminate all state militias? Once you've answered my question, we can proceed to address yours.

I will concede that there is some sort of residual militia power vested in the state. Now what that power is, what the extent of it is and who falls under that umbrella of power (and by "umbrella" I mean one of the little tiny pink ones you get in a fruity drink) and what immunity from that residual power remains actionable by claiming 2nd Amendment protection and who can claim that protection and who would be granted standing to claim that immunity I doubt anyone could fully explain. You are welcome to try though.

You have put the 2nd into a box that has constrained its action to the point of nullity.

I must hold my position that the only way the "obvious purpose" of the 2nd can be met and that it makes any sense at all is if it protects the rights of the farmers, blacksmiths, butchers, bakers and candlestick makers of the community who, when called to muster would appear with firearms supplied by themselves, sufficient provisions, lead and powder for a few nights away from home. Without that means, that ability, the "obvious purpose' can not be met - there is no "collective action" without there first being individual action.

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Setanta wrote:

The first clause of the IInd Amendment in speaking of a "well-regulated militia" obviously refers to the powers granted to Congress in Article I, Section 8--they have a specific purpose of assuring that the "shall not be infringed" clause does not abrogate the powers already given Congress to regulate the militia. . . .

The first clause of the amendment protects the Congress' power to issue regulations.

That's a very interesting theory about the "obvious" linkage between the declarative clause of the 2nd and Art I § 8 powers but, as the thrust of this thread has demonstrated, such a link does not exist. Stating that the declarative clause of the 2nd actually reaffirms (or even worse, strengthens) Art I § 8 powers can only be described as the fruits of an over stimulated statist imagination. Please cite any reference that such is an object of the 2nd Amendment.

Perhaps the Preamble of the Articles of Amendment would be prudent to review, after all, it explains to the states the intent and ambit of the provisions submitted for ratification . . .

"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"

I don't see anything regarding an affirmation (or expansion) of Constitutional powers, all I see is structured limitations on those powers to quiet apprehensions.

Now, listening to you, it seems that the 2nd Amendment was really a Trojan Horse. The state legislatures were duped then into thinking the 2nd protected them and their citizens from obscure, unlisted federal power but in reality it is a back door for all manner of restrictive "regulations" to disarm their citizens and dismantle the state's defense structure . . .

IOW, that the "restrictive clauses" mentioned in the Preamble are not really directed at the federal government but are actionable against the citizen or the state? Is that really what you are arguing?

Please correct me if I'm mistaken . . .

Back to the linguistics and contemporaneous contextual lexicon of the term regulated (as it pertains to military corps, or in this case, . . . well read for yourself:

"That the strength of the Wabash Indians who were principally the object of the resolve of the 21st of July 1787, and the strength of the Creek Indians is very different. That the said Creeks are not only greatly superior in numbers but are more united, better regulated, and headed by a man whose talents appear to have fixed him in their confidence." Journals of the Continental Congress, 1774-1789 MONDAY, JULY 28, 1788.

What do you make of the term "regulated" in that context? Are you really going to argue that it refers to anything besides the character and function of the Creek Indian Warriors?

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You continue to fail completely to make your case. It is amusing what you "see" when the words "misconstruction" and "declaratory" are immediately before you, yet you choose to "see" that as meaning only limitation.

What i "make" of the term regulated in that context is that it refers to discipline. As i have already pointed out, Article I, Section 8 empowers the Congress to prescribe the discipline for the militia.

You have no case, but feel free to continue to waste bandwidth.

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Setanta wrote:

You continue to fail completely to make your case.

At least I present a case. Apparently your entire argument rests solely on not recognizing or accepting an alternate definition for a word. I can't really say I blame you but Jeez, search up an old dictionary or even a comprehensive current one . . .

The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period.

1) To control or direct by a rule, principle, method, etc. 2) To adjust to some standard or requirement as for amount, degree, etc. 3) To adjust so as to ensure accuracy of operation. 4) To put in good order. [obsolete sense] [list]b. Of troops: Properly disciplined. Obs. rare [/list]

And you still have not offered acceptable rebuttal to my inquiry about the meaning of "ill-regulated." Here is a modern use of ill-regulated that again, places it as the antonym of well regulated (well, my definition at least - properly functioning / in operational order):

"Acute viral hepatitis and cholera were the two major diseases that Russian medical personnel had to contend with. Both are endemic to squalid living conditions and confined living space found in ill-regulated field camps and deployment areas."

VIRAL HEPATITIS AND THE RUSSIAN WAR IN CHECHNYA
U.S. Army Medical Department Journal, May/June 1997 issue
http://fmso.leavenworth.army.mil/documents/hepatiti/hepatiti.htm

I don't understand your cocky stance when you haven't replied with a direct refutation of anything I've presented. On point rebuttal from you has been conspicuous in its absence.

Setanta wrote:

It is amusing what you "see" when the words "misconstruction" and "declaratory" are immediately before you, yet you choose to "see" that as meaning only limitation.

I choose to see only "limitation" in the Preamble and Bill of Rights? Are you for real? That can't be what you mean.

You calling out "misconstruction," the irony is crushing . . .

I'm arguing the Bill of Rights limits gov. powers in order to protect pre-existing rights and you are arguing it affirms gov. powers to impact pre-existing rights.

Setanta wrote:

What i "make" of the term regulated in that context is that it refers to discipline.

Regulated, as it is used in in the 2nd and the excerpts I provided describes military discipline in action, not in statute.

A "regulation" stipulating the cadence of marches is powerless to effect how well that company of troops actually marches . . . IOW, the "regulation" ordering a particular military discipline to exist, can't force said discipline to actually be "well regulated" in practice.

Setanta wrote:

As i have already pointed out, Article I, Section 8 empowers the Congress to prescribe the discipline for the militia.

Wow, you are quite the sage. Where have I argued against that?

Here's a recap of my general position cause now you are throwing up strawmen to fight. At least present an argument in opposition to mine; there should be plenty here . . .

The organized militia can (and should) have regulations written for it, for commonality of arms, organization and command etc. I agree that Art I Sec. 8 does empower Congress to enact such law/regulations on the organized militia as they see fit.

There is no power in the Constitution for Congress to impact in any way the arms of the private citizen. In fact, the only place the arms of the private citizen are mentioned is in the 2nd Amendment. The use of "well regulated" in the 2nd Amendment is not a qualification or a demand of action or a command, it describes a character of the militia.

The first clause, "A well-regulated militia, being necessary to the security of a free state," is what the Preamble says it is, a declaration. It is a declaration stating a maxim of a republican government, you know one of those dumb, parochial "self evident" thingamajigs we don't bother with anymore.

Setanta wrote:

You have no case, but feel free to continue to waste bandwidth.

And you have offered no rebuttal. Can't you make your case with something other than "you have no case?" Sounds like projection to me.

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fisherman_obx wrote:

joefromchicago wrote:
Can the federal government eliminate all state militias? Once you've answered my question, we can proceed to address yours.

I will concede that there is some sort of residual militia power vested in the state.

Well then, that settles it: Heath is wrong. Remember, here's what Heath said:

...if the Constitution as expounded by the high court leaves Congress with the power to preempt the states' ability to maintain well-regulated militia, then it would follow that the Second Amendment, if it is to have any meaning at all, must refer to a right to keep and bear arms that is held directly by citizens and is not conditional on state sponsorship.But if you and I are right, congress doesn't have the power to preempt the states' ability to maintain a well-regulated militia. Thus, it follows that the second amendment doesn't necessarily refer to a right to keep and bear arms that is held directly by the citizens and not conditional on state sponsorship. Bottom line: we're right, Heath's wrong.

fisherman_obx wrote:

You have put the 2nd into a box that has constrained its action to the point of nullity.

I haven't, and neither have the courts. If there's anyone to blame for the failure of the second amendment to protect a significant right, it's the framers of the second amendment. If they had genuinely wanted the amendment to protect the rights of citizens to possess firearms unconditioned on membership in the militia, then they could have easily written the amendment to say that. But they didn't, and so it's their fault if the courts have interpreted the second amendment consistent with the way that it is written.

fisherman_obx wrote:

I must hold my position that the only way the "obvious purpose" of the 2nd can be met and that it makes any sense at all is if it protects the rights of the farmers, blacksmiths, butchers, bakers and candlestick makers of the community who, when called to muster would appear with firearms supplied by themselves, sufficient provisions, lead and powder for a few nights away from home. Without that means, that ability, the "obvious purpose' can not be met - there is no "collective action" without there first being individual action.

Well, that argument is pretty far from the one that Heath advances. Luckily for you, Heath is quite obviously wrong.

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I have presented a case--that the first Congress wrote the initial clause of the second amendment in order to assure that the powers granted to Congress were not abrogated when they assured the right of citizens to keep and bear arms. That case is based on the undeniable fact that the 12 amendments proposed by the First Congress nowhere limited or repealed any power given to any branch of the government in the Constitution. Those proposed amendments expanded the Constitution, but did not revise it.

You, on the other hand, have attempted a byzantine argument which violates the so-called Occam's razor: entia non sunt multiplicanda. You are multiplying causes all over the landscape and appealing to all sorts of silly justifications, even to include the Continental Congress' hilarious episode in granting powers to Thomas Conway as Inspector General--powers which were ordinary and consistent with the position. (The episode became hilarious when Conway ineptly joined a conspiracy to replace Washington with Gates.)

Previously, you attempted to justify your personal and idiosyncratic definition of "well-regulated" as it appears in the amendment by reference to 18th century sources. Now you're attempting to use a 20th century definition--you're all over the road on this one.

Which is why i say you have no case.

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fisherman_obx wrote:

. . . blacksmiths, butchers, bakers and candlestick makers of the community who, when called to muster would appear with firearms supplied by themselves, sufficient provisions, lead and powder for a few nights away from home.

This, by the way, is pretty damned silly. There is no part of the Constitution, including the IInd Amendment, which specifies that members of the militia must provide their own firearms and munitions. In fact, part of Article I, Section 8 holds that:

(Congress shall have the power) To provide for organizing, arming, and disciplining the Militia . . . (emphasis was, obviously, added)

So there is absolutely no basis for your claim that members of the militia were expected to provide their own firearms and munitions, and the inference from that passage obviously makes the Congress responsible for arming the militia.

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joefromchicago wrote:

But if you and I are right, congress doesn't have the power to preempt the states' ability to maintain a well-regulated militia. Thus, it follows that the second amendment doesn't necessarily refer to a right to keep and bear arms that is held directly by the citizens and not conditional on state sponsorship.

I think you are making a stretch there, it doesn't necessarily follow. The individual right model is quite capable of sustaining itself without Heath's theory. I just thought Heath's argument was worth exploring; at the very least it does have some negative impact on the state's right model.

The artists who composed the Tot rule certainly did not factor in the actual judicial history as it stood then or they surmised nobody would bother inspecting it. For any future case I think that the chance that something along the lines of Heath's theory will be briefed is 100%. It will need to be addressed no doubt. A future decision coming down on the conditional exercise side would need to address what in fact those residual powers are and their relationship to the 2nd Amendment and that's a good thing for my side.

joefromchicago wrote:

If there's anyone to blame for the failure of the second amendment to protect a significant right, it's the framers of the second amendment. If they had genuinely wanted the amendment to protect the rights of citizens to possess firearms unconditioned on membership in the militia, then they could have easily written the amendment to say that. But they didn't, and so it's their fault if the courts have interpreted the second amendment consistent with the way that it is written.

When one uses the lexicon and context of the founders there is no ambiguity. I have a fundamental problem with your concept of conditional exercise simply on an equal protection basis:

1) The founders found the right to arms being exercised by individuals without any militia condition.
2) The undisputed history is that the states demanded a federal right to arms provision (among others). It boggles my mind to think that the states ratified the federal provision if there was any chance it could be read to embrace a select militia or override their own right to arms provisions.
3) The notion that the framers embraced the concept of select arms bearers and protected their exclusive right to bear arms and excluding the common citizen is so preposterous it defies serious attention.

To accept that premise, that the 2nd Amendment only protects the rights of government sanctioned and commanded militias to be armed, forces us to re-examine another document of our founding and pervert and corrupt the fundamental principles sworn to then.

Let's step back to the days when the 2nd was being hammered out and listen in as the founders discuss how their proposed amendment follows those principles . . .

"We hold these truths to be self evident, . . ."

"[T]hat all men are created equal, . ." No not really, select militia members are the only "people" that shall exercise the right to keep and bear arms.

"[T]hey are endowed by their Creator with certain unalienable rights, . . ." No, not really, we shall create and grant rights and place conditions and qualifications upon their exercise..

"[T]hat among these are, life, liberty and the pursuit of happiness - . . ." Well, we will give them the right to life but they won't have the right to defend it with a firearm, unless they are in the militia.

"[T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the Governed, . . ." Well, we are establishing this government and we and whoever follows us in power, will decide what is a just power. And we and whoever follows us in power will decide, using changing criteria, international pressure and especially public opinion, just which rights this government considers important enough to secure to the governed.

[W]henever any form of Government becomes destructive of these ends, it is the Right of the People, to alter or abolish it. What the &%$#@! We didn't actually say that did we? God, what were we smoking? Look, secret decree here OK? Let's let the people think were are protecting an individual right; hey Tench, wake up! get right on that propaganda! In about 100 years or so, a "National Guard" structure will start in the states, it'll evolve from the militias of the states, so nobody will notice what's happening. Later, Congress can federalize it and it will become a standing army, by then the people will be easy to dupe into thinking that the National Guard is the militia that is supposed to keep the government honest! This "self evident" crap ain't gonna last long. . . Oh Jeez, I crack myself up!

In my mind, extinguishing the individual right to keep and bear arms corrupts all the above "self evident truths," especially the right of the people to abolish a government that is destructive to our rights. That is after all, only the original right to self defense.

Our rights predate the Constitution, they were not created or granted by that document or Amendments to it. Our right to keep and bear arms is not dependant on the Constitution or any Amendment for its existence. Since this was understood when it was written, it was understood that no conditions or qualifications could be imparted through the provision guaranteeing it.

Why am I right?

Because the founding fathers found the individual right to keep and bear arms already in existence. It would have been quite pretentious of them to think they could change the status of the right that individuals freely exercised without regard to militia enrolment, into a requirement of militia enrolment in order to exercise. It also would have been quite a deception foisted on the citizens, amazingly, the secrecy of that switcheroo has survived to the present.

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Setanta wrote:

I have presented a case--that the first Congress wrote the initial clause of the second amendment in order to assure that the powers granted to Congress were not abrogated when they assured the right of citizens to keep and bear arms. That case is based on the undeniable fact that the 12 amendments proposed by the First Congress nowhere limited or repealed any power given to any branch of the government in the Constitution. Those proposed amendments expanded the Constitution, but did not revise it.

I agree that it is - "undeniable fact that the 12 amendments proposed by the First Congress nowhere limited or repealed any power given to any branch of the government in the Constitution." Because no power was granted to impact the subject of those amendments. That was the primary Federalist argument against a Bill of Rights, that it was a redundant and dangerous addition.

Now we move to your again, unsubstantiated argument, that the declarative clause of the 2nd was included, "to assure that the powers granted to Congress were not abrogated when they assured the right of citizens to keep and bear arms." Were is this position articulated besides in what you have written here? Really, you need to refer to some authority or decision that supports your theory for it to be taken seriously.

Setanta wrote:

You, on the other hand, have attempted a byzantine argument which violates the so-called Occam's razor: entia non sunt multiplicanda. You are multiplying causes all over the landscape and appealing to all sorts of silly justifications, even to include the Continental Congress' hilarious episode in granting powers to Thomas Conway as Inspector General-- . . . <SNIP>

I have only one, very, very simple position, that "regulated" as used in the 2nd amendment and in describing military forces simply refers to the 'on the ground' function and condition of said corps. The "multiplying causes all over the landscape and appealing to all sorts of silly justifications" that you see are my examples of contextual uses of that word that support my position. Your characterization of my Inspector General excerpt is enlightening . . . As all I was doing was inspecting the use of the term well regulated. Very puzzling . . . are you truly that obtuse?

Setanta wrote:

Previously, you attempted to justify your personal and idiosyncratic definition of "well-regulated" as it appears in the amendment by reference to 18th century sources. Now you're attempting to use a 20th century definition--you're all over the road on this one.

Hmmmmm, that one was of "ill-regulated,' a term that's meaning is not in dispute; it is a term free of any kind of politically motivated redefining. It has been used for centuries (and with the example I offered, right up to modern times) defining a single concept; substandard military condition and readiness. That condition is the antonym of well regulated. Of course you have offered no rebuttal other than your deep confusion and mischaracterizations of my arguments.

Setanta wrote:

Which is why i say you have no case.

Sigh . . .

Setanta wrote:

There is no part of the Constitution, including the IInd Amendment, which specifies that members of the militia must provide their own firearms and munitions. In fact, part of Article I, Section 8 holds that:

(Congress shall have the power) To provide for organizing, arming, and disciplining the Militia . . . (emphasis was, obviously, added)

So there is absolutely no basis for your claim that members of the militia were expected to provide their own firearms and munitions, and the inference from that passage obviously makes the Congress responsible for arming the militia.

I don't know whether to laugh or cry . . . please move on to another subject as you really have no business discussing this one.

First the 1792 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, . . . That every citizen, so enrolled and notified, shall, within six months thereafter, [b]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[/b], except, that when called out on company days to exercise only, he may appear without a knapsack."

(emphasis was, obviously, added)

Next, UNITED STATES v. MILLER, 307 U.S. 174 (1939)

"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.' [b]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.[/b]"

(emphasis was, obviously, added)

It appears that you have profound cognitive difficulties. I do not think my time will be spent wisely in further discussions with you.

Don't embarrass yourself further with another reply.

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fisherman_obx wrote:

I think you are making a stretch there, it doesn't necessarily follow. The individual right model is quite capable of sustaining itself without Heath's theory. I just thought Heath's argument was worth exploring; at the very least it does have some negative impact on the state's right model.

As I said before, Heath's argument is interesting, but it's still wrong. That doesn't mean that his interpretation of the second amendment is wrong, just that his way of getting there is wrong.

fisherman_obx wrote:

When one uses the lexicon and context of the founders there is no ambiguity. I have a fundamental problem with your concept of conditional exercise simply on an equal protection basis:

I only posted to this thread because Heath's argument was novel. It proved to be wrong, of course, but at least it was something I had never seen before. On the other hand, I have no interest in participating in yet another thread that microscopically dissects the tortured language of the second amendment.

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joefromchicago wrote:

On the other hand, I have no interest in participating in yet another thread that microscopically dissects the tortured language of the second amendment.

I agree, that's why I dismissed your attention to the founder's construction of the 2nd with one short sentence.

I did however spend the last 90% of my post arguing the conditional right theory is at complete odds with the fundamental principles the Constitution.

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fisherman_obx wrote:

I did however spend the last 90% of my post arguing the conditional right theory is at complete odds with the fundamental principles the Constitution.

Yeah, that wasn't very interesting either.

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