Talk Elections

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.

The Amendment is comprised of two clauses; both should be read in pari materia. The second clause defines the right; the first describes why it should be protected.

Madison's original draft of the Second Amendment read as follows: "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." The right to keep and bear arms was seen as necessary for maintaining a free state.

In recent decades, a whole host of mistaken scholars have tirelessly argued that the Second Amendment protects only state militias. This claim is clearly fallacious. It assumes that "Militia" refers to "a select group of citizen-soldiers," rather than, as the Virginia Bill of Rights of June 1776 defined it, "the body of the people, trained in arms."

The words of George Mason are telling. "What is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."

Indeed, if the "states' rights" interpretation of the Second Amendment held water, the text would instead speak of "the right of the states to keep and bear arms."

Tench Coxe wrote probably the most systematic early overview of the Bill of Rights in his "Remarks on the First Part of the Amendments to the Federal Constitution," which appeared in the Philadelphia Federal Gazette in June 1789. In reference to the Second Amendment, he wrote, "the people are confirmed by the next article in their right to keep and bear private arms." Madison later wrote to tell Coxe that the ratification of the amendments would be "indebted to the cooperation of your pen."

It is clear from the text, history, and plain purpose of the article that the Second Amendment protects an individual right to bear arms. Moreover, this was the view assumed to be true by the framers of the Fourteenth Amendment, who repeatedly asserted that the Privileges or Immunities Clause of their amendment would protect the right of individuals to keep and bear arms.

It is unfortunate that we live in a time when rights found nowhere in the Constitution are protected, and yet those spelled out in plain English go unnoticed. Although some lower courts have embraced the original meaning of the Second Amendment, the Supreme Court has yet to do so, and the relevant case law there remains United States v. Miller, a singularly confused opinion that both sides insist supports their argument.

As Justice Joseph Story wrote in 1833, "[t]he right of a citizen to keep and bear arms has justly been considered the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

Good stuff, Philip -- I think it's very well defined, and -- if an issue -- needs restating every so often.  I'm more than willing to fight for the weapons that I own; this amendment should never be considered archaic, and is clearly defined in two parts as you say.

You people are so paranoid that the Democrats are trying to take your guns away you are blinded by the way guns plague our society. Its not 1787, times change and most people don't need guns anymore.

That being said, I don't support repealing the 2nd Amendment, just a stricter interpretation of it. Those of us in urban/suburban areas shouldn't have to bear the brunt of a irresponsible gun-loving society.

A stricter interpretation of the 2nd Amendment would result in less gun control, and rightfully so.

A stricter interpretation meaning more restrictions on the right to own guns. I realize that since this is a male-dominated forum my gun views are unpopular, but...............I just have no interest in them and they do more harm than good.

Judges are not authorized to amend the Constitution under the guise of interpretation, and that includes diluting the Second Amendment.

On gun control I feel that the second clause determines the right of everyone to own  a gun (obviously certain people such as ex-felons/violent criminals shouldn't be allowed to) and under the 9th amendment, states (or in some cases they should defer to local governments) should be able to set their own policy what sort of guns are allowed to bought/used/possesed in that state.

Well as you know the 14th Amendment applied the Bill of Rights to the states, so actually no, they can't infringe upon the 2nd Amendment.

The "militia" word does allow for certain restrictions, i.e. criminals, minors, possibly women in the original interpretation (not now of course).

I think the most obvious means of legal gun control is to create or increase the needed training to buy a firearm. That conflicts with the original understanding, but a rule skeptic judge/justice could argue that the increased capability of weapons requires more training such that the militia would be effective. After all, the point of the amendment is a strong militia, and a better trained militia is stronger.

Also, the amendment very clearly mandates citizens be allowed to carry their weapons ("bear" in addition to "keep").

This has nothing to do with gender.  Our most prominent female poster here is a socialist whose one conservative trademark is on gun rights.

Obviously one would have to be an active member of the militia for this amendment to apply.

That assertion was already refuted. Please quit trolling.

What do you mean 'refuted'?  We just have different interpretations - such is the nature of interpretation, Philip.

Your interpretation isn't based on any kind of legal reasoning. You're just saying 'obviously it means what I want it to mean.'

That's all 'legal reasoning' is, Philip - just an excuse for what is essentially a political, ideological decision.

Legal reasoning is about finding the objective meaning of words. I've explained this to you in some detail several times.

If we can understand each other's posts, we can understand laws.

I dont own a gun and I dont hunt, but Im a strong supporter of the second amendment.  If my girlfriend and her mother werent PETA types, Id definitely go for my hunting license.  Several of my friends and relatives hunt, and they have a blast.  Its more than just killing an animal, its a bonding experience.

Oops, I meant 10th amendment.  And like AuH2O the 14th amendement would apply the 2nd amendment to all the states so no state could deny anyone (with a few exceptions) the right to own a gun, but they can place restrictions on which types of firearms can be possessed/sold, etc.

"shall not be infringed", not denied.

TexasGurl and I are both women and we are both supportive of the right to bear arms. Personally, whilst I cannot currently own a gun (I am not familiar with Californian gun laws and am also still a minor), I plan on acquiring one before moving out. My mother encourages me to have a gun and will likely get one herself after I move out, as she will be alone. If I ever need to subdue a bandit or rapist, I will not sit idly and wait for the police/authorities to arrive after the crime occurs. People who support gun control ramble incessantly about the nightmare of guns, yet I have never heard one strong argument regarding how to deal with house-breakers and criminals without using a weapon of some kind.

Evolution of the second amendment:

1776 Virginia Bill of Rights: 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

Proposed amendments of the Virginia Convention: The people have a right to keep and bear arms; that a well regulated militia compsed of a body of the people trained to arms is the proper, natural and safe defence of a free state

Amendments proposed by James Madison: 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

Amendments reported out of committee: A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person relgiously scrupulous shall be compelled to bear arms

Amendments passed by house: A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no person relgiously scrupulous of bearing arms, shall be compelled to render military service in person

Amendments passed by senate: 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

Amendments proposed to states: Ditto above



Take all this for what you will

People misunderstand each other's posts as often as they understand them on this board.  And that is without a motivation to misunderstand them.  For example I would be highly motivated to interpret the second amendment in a different way - a way that would allow pervasive gun control.  And if I had the power to do so, that is what I would do - if I were, for example on the Supreme Court. 

In the same way one can interpret into existence things one wants, such as the right to privacy.  Its all very easy, it is just a matter of getting power.

Of course judges are capable of dishonesty. That does not mean there is no method of true interpretation—discerning objective meaning.

Those who claim the original understanding of the Constitution is unknowable never apply this absurd principle to things like the National Banking Act, the Civil Rights Act, or the Social Security Act.

The argument that the Second Amendment protects only "select groups of citizen soldiers" acting under the authority of the states is nothing but the product of modern activism. The text makes it clear that the right to bear arms is a right of the people, not merely a right of "select groups of citizen soldiers."

The view that the right to bear arms is a right of all the people, not of a "select group," is historically justifiable. The Constitution of Massachussetts stated, "the people have a right to keep and to bear arms for the common defence." The original Constitutions of Pennsylvania and Vermont provided, "the people have a right to bear arms for the defence of themselves and the state." The original Constitution of North Carolina stated, similarly, "the people have a right to bear arms, for the defence of the State."

The right to bear arms, furthermore, is no less complete than any other right secured by the Constitution. It has been asserted by some liberal constitutional scholars that the government may regulate the bearing of arms in any way it sees fit, as long as it does not completely prohibit their possession. But apply this line of reasoning to any other constitutional right, and these very same scholars will have an apoplectic fit. Can it be said that the government may regulate speech in any manner it pleases, as long as it does not completely prohibit speaking? Can it be said that the government may regulate the press in any manner it pleases, as long as it does not completely shut down newspapers?

In Bliss v. Commonwealth (1822), the Supreme Court of Kentucky even went so far as to strike down a state prohibiting the concealed carrying of arms. Its holding, of course, was under the state Constitution, but the provisions of the Kentucky Constitution with regard to the bearing of arms are not very different from those of the Second Amendment. It held:

"The provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state... But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden."

The courts have attributed highly implausible etymologies to the word "militia," and have effectively stricken the Second Amendment from the Constitution. For reasons which I cannot fathom, the right to bear arms (explicitly guaranteed by the Constitution) is deemed much less important than the right to privacy (which has no constitutional basis at all). It does not seem to have occurred to the Supreme Court that the right to protect one's life might be at least as important as the right to protect one's privacy.

And you won't hear one that makes sense.  The criminals will not go to a gun shop, present 50 forms of id, wait, then pick up their gun days later.  They will not go to the local sheriff to apply for a concealed carry permit, present 50 forms of id, wait, then come back when approved.

They'll go the corner, buy a gun on the spot, and they're off on their criminal way.

Housebreaking and criminality are caused by poverty, everett, and can be reduced by ameliorating that condition. 

Of course typically the neighborhoods of the poor are very far from the neighborhoods of their oppressors, so they end up victimizing one another, but if a poor could successfully invade the home of a member of the owning class and mete out a little revenge, who could blame him?  One might perhaps even feel a twinge of sympathy for the underdog.

The original draft might have been two clauses, but what was approved is just one.  There is no semi-colon nor "and" between what you have bolded and what is left unbolded.  It specifically says that the right to keep and bear arms is for the purpose of providing a well regulated militia.  Again, it's one of the few poorly written sentances in the Constitution, but it is clear as to what it says.

Yes, it obviously implied that any bearing of arms that is to be done should be carefully regulated, and only allowed within the context of a 'militia'.  This amendment in no way suggests that individuals have a right to bear arms personally.

Man, you scare me when you say things I agree with.  HAHAHA

Yeah, that only contradicts the opinions of the people who wrote the constitution - they obviously had no idea what they were talking about. ::)

But we can't go by what their opinions were, but by what was approved in the Amendment and by what the Supreme Court has ruled.  Like Liberty provided for us, there were many various bills and laws on this issue before the Amendment was approved.  That's why I've been a proponent for having the second amendment "revised."  People from both sides of the argument can look at the one sentance and see two different things.

No, you're clearly misinterpreting them, as they mentioned a 'militia'.

Modu

I suggest you read Article I, Section 8 and Article II, Section 2.

You will find that the militia was already recognized in the Constitution.

So, the question is what does the Second Amendment add to those provisions?

The answer is simply that the founding fathers wanted to make it clear that the right to keep and bear arms was one of "the people." not simply a 'select' militia.

If they meant what you alledge, then there would have been no need for the Second Amendment (it would have been superflous) and the inclusion of the wording about being necessary for "a free state" and "the right of the people" would be nonsensical in your misinterpretation.

If you look elsewhere in the Amendments you will see that "the right of the people" (try the First Amendment) is NOT some 'corporate' term, but rather a recognition of the right of individuals.

Also, as I have noted elswhere on previous discussions on this board, the founding fathers were generally rather learned men who understood that national defense could be accomplished without a militia, but that maintenance of a FREE state necessitated an armed people.

Repetition for emphasis, Carlhadan, repetition for emphasis.  They really liked militias.  Besides, is it really appropriate to interpret clauses using extraneous materials like other parts of the constitution?  Shouldn't the meaning of the clause be derived from the orginalist intent and natural meaning of the clause itself?


Hah, doesn't sound like the opinion of 'learned' men, but rather the viewpoint of the violent redneck.

While that might be true, you also have to look at what the Amendment says:

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 it was a clear as you say, then the first half of the Amendment is not necessary, and it should have simply been written as "The right of the people to keep and bear Arms shall not be infringed."  (Note that the comma between Arms and shall become unnecessary in the revised version of the Amendment.)

However, that is now what is written nor approved by Congress.  So, we go back to what is, and that is the right to keep and bear arms is for the purpose of the militia.  And like I said before, no where does it say the general public do not have the right to own guns, and this Amendment does not say that the government does not have the right to limit what kind of guns a person can own.  It merely defends why people have the right.

Okay, you have no idea what a clause is if you think that is relevant.

I just went through the original meaning of militia.

So, "the right of the people to keep and bear arms" is effectively erased from the Amendment in your misinterpretation since YOU do NOT want others to bear arms since when the people are armed we will have a relatively "free" state.

You keep evading the issue.

What does "the right of the people" mean with respect to the first 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.


You mean in respect of the second amendment?

Look, I can only say this in so many different ways.  The Second amendment is a singular thought.  In order to have a well regulated militia to protect the country, the citizens had the right to own weapons so when they were needed to be called up, they were ready.  Nowhere in the Amendment does it say that the general public can keep arms for pleasure.  It specifically says it's for the militia.

Now, with that said, and I repeat myself again, the Constitution does not say people cannot own guns for pleasure or for self-defense at home or from a repressive government.  It also doesn't say that the government cannot limit the kind of guns people can own.  This is reinforced by Supreme Court rulings over the years.  No one is going to come by and confiscate your guns and/or throw you in jail, even if the laws were to change.  As in the past, guns purchased before a new law goes into place are grandfathered into the system, and only effects new gun sales.

And if for some science-fiction reason the government were suddenly become oppressive (requiring one hell of an infiltration of both the government and the military in order to pull it off), old retired folks like me will once again put on our uniforms for uphold our oaths of protecting this nation from threats, both foreign and domestic.  Just because I'm for limiting the types of weapons available to the general public doesn't mean I have forgotten how to use them (and still do from time to time). 

No, the right to bear arms is affirmed, but first you have to join the militia.  It is all right there in black and white, Cahlhardon.

And of course there is no connection between a 'free' state and a violenct populous.  Just look at the present day US - highly dangerous, but also very unfree.


Obviously the first amendment does not mention a militia, Carlhaydense.

Modu,

You keep evading the issue.

According to you, the Second Amendment is meaningless.

However, the founding fathers took a different view.

The Supreme Court has repeatedly held that the phrase, "the right of the people" is an individual right.

Also, you have yet to explain why the founding fathers chose to include the word "free" in the amendment, since everyone is agree that national defense could be maintained against foreign enemies without a militia, and the founding fathers were well aware of that fact.

I haven't avoided it, but rather addressed it twice already.  It's just not the answer you are looking for.  The Second Amendment is not meaningless.  It protected the people from having their weapons taken by the local and federal governments by giving them a reason.  The reason being that the people would be the ones to make up the bulk of the defending forces of the new US through the militia.

And "free" is obvious.  Are we now going to define what "is" means too?

As I showed earlier, the word 'militia' meant the people as a whole. I wouldn't both arguing with him, Carl, as it's obvious he is simply ignoring the actual meaning to get the result he wants, and making assertions directly contradicted by history.

I had posted what both meanings of militia were (right out of the US codes) in the other thread as well as explained how both have been replaced through history.  I'm sorry that I am going by what the constitution actually says.

What the Constitution says is 'militia.' That doesn't tell us what militia means. The federal Bill of Rights is based on the Virginia Declaration of Rights, which defined militia as the populace, trained in arms, not a select group of citizen-soldiers. This was also the definition of militia entertained by Madison, as well as the Father of the Bill of Rights himself, George Mason.

And last time I checked, the populace wasn't down in Richmond drilling on Saturday, was it? 

They don't have to drill. What gave you that absurd idea?

If you go back to you posted (and in history), training was a requirement for the militia.  How do you train?  By drilling.  Firing a gun is nothing if you do not know how to do it with those around you.  This was one of the biggest problems initially with the Revolutionary forces at the start of the war. 

Training does not have to be formal training. It just means knowing how to yield a weapon.

Well-regulated, by the way, does not mean government regulation.

Their would be nothing unconstitutional about "mens clubs" or other type groups forming militias. This was a very common practice up until the civil war. And the reason why it is basically forbidden is because the federal government is afraid of having their power challenged ever again.

*removed my initial sarcastic comment about you standing in front of the line*

No, well-regulated does not mean government regulation.  It does, however, mean TRAINED.  If training to you means just knowing how to hold a gun and pull the trigger, then you would better serve the Revolutionary forces in logistics.  You had to know the motions of loading, standing, firing, kneeling, cleaning, repeat in time, otherwise you would either be shot from the front by your enemy or from the back by your friend.  Now, there is a difference between organized militia (which has become your national guard), and the unorganized militia (which has all but disappeared for the most part).  Yet both require training in order to know how to fight, otherwise you become nothing more than cover for someone to duck behind.


Note the comment regarding unorganized militia.

The problem I have with the National Guard is that it was a ploy by the federal government to retain their power so they can never be threatened by "insurrection" again.

Possibly, though the states still have control over their uses as well.  Personally, I find it nearly impossible for any independent group to take over the nation through military force these days.  Even if we were invaded by Germany (for example purposes only), they would lack the number of personnel needed to physically occupy the nation.  It's like if the US were to go and invade Russia without the use of Nukes.  We just could not hold it.  There are just too many people and too many square miles which make any kind of conventional uprisings effective.

A fairly reasonable textualist argument could be made in support of defining the militia as the whole populace, rather than a select group of citizen-soldiers.

Article I, Section 10, Clause 3 declares, "No State shall, without the Consent of the Congress ... keep Troops." What is the difference between a "select group of citizen-soldiers" and "Troops"? Of course, there is no distinction. They are exactly one and the same.

If a militia is only a select group of citizen-soldiers, it would follow that no militia may be maintained without the consent of Congress. However, such a result would contradict Article I, Section 8, Clause 16, which entrusts the government of the militia (when not in the national service) to the states. The clear implication is that militias may be maintained in the first place, without congressional approval. When the Constitution specifically declares that a militia is "necessary to the security of a free State", can anyone claim that a militia's existence is dependent on the consent of Congress?

Thus, if we accept the premise that a militia is a select group of soldiers maintained by the state government, we reach the illogical conclusion that no militia may exist without Congress' permission. Hence, by reductio ad absurdum, one may establish that a militia is not a select group of soldiers.

1. The opinions of the people who wrote the damn thing matter - their opinions are what the amendment is based on, and are important in its interpretation because they knew exactly what it was supposed to mean.

2. The Supreme Court can be wrong - what they rule isn't worth squat if they don't interpret the constitution in accordance with how it was supposed to be interpreted. I mean, the Supreme Court has ruled that growing of wheat for your own personal use constitutes interstate commerce for crying out loud!