2nd amendement modification?

This whole topic reminds me of the concept of "Get them asking the wrong questions and you don't have to worry about the answers."

The 2A in the United States Constitution, like all other amendments and provisions, applies to restrictions on the national government's power to limit the behavior of the states first, sometimes entire groups of people and sometimes the individual people directly.

The COTUS restrictions, the Bill of Rights, was not intended to and should not be seen as a set of restrictions against first the states and most especially individual people. Incorporation, I believe, is an incorrect concept. As I've said before, if the COTUS applies to the states, what would be the purpose of the state constitutions?

So many people now are so blinded, so convinced that EVERYTHING is at once "unconstitutional" and that somehow the BoR restricts individual freedom. The courts continue to contribute to the blindness and wrongheaded thinking.

The 2A is about the national government disarming the people. That's all. It's not about the militia. It's not about the states, they almost universally have their OWN "2As".

It's the wrong question people are asking and the answers don't matter.

The people are supposed to be FREE. The national government is supposed to PROTECT them, primarily from foreign threats.

The BoR was intended to restrict the encroachment of the government against the people.

How are we asking "Does this or that provisions guarantee this or that right?"?? They are restrictions against government interference, they restrict the government, that's why there's a clause that says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

If it ain't provided for in the COTUS, the national government CAN'T DO IT!!

The powers apply to them and the limits apply to them ONLY!

Most of these fights we're fighting should be fought at the state level. The national government should be small and limited in scope, the COTUS is relatively short and simple and so should be the government that it creates.

It saddens me, the way we apply these principles today.

The progression of the Amendments themselves shows the descent that we have followed...

We go from:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances...

Which is unarguably one of the most important premises of a free people, to:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Seriously? We amend the most important document in our nation so as to regulate someone's paycheck?! Really!

Our entire national foundation is printed on 6 (rather large) pages and now we pass laws that are thousands of pages long and no one has read or could possibly understand in full.

How could we understand such bills?

We have one simple sentence:

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.

that we can't seem to understand.
 
I see what you mean, Mr. Cannonfire. But pre-Revolution and even pre-Constitution, they were still state militias, in a manner of speaking. However, to be clear on the subject, they were raised at the local level and that was it. At the time, that was still the way it was still being done in Great Britain, although they also had other forms of local troops, most of which were raised during the period of the Napoleonic Wars. The local troops (in Great Britain) could not be sent overseas, although they had a bad practice of drafting men into the army from local units.

There were also some forms of state regular troops for a while. They generally manned frontier outposts during the early Indian wars up until the threat from Indians along the East Coast disappeared, mostly by about 1800, more specifically after the Battle of Fallen Timbers. After that, the frontier jumped to well beyond the Allegheny Front. However, I don't know in what numbers they existed but they did exist in Virginia, where they were referred to (in some references) as rangers. It probably wouldn't be correct to think of them as regular military units, for they don't seem to have been employed that way. I'm not sure there's much in the way of literature on such troops and such little knowledge (poorly remembered at the moment) as I have of them came from a book from about a hundred years ago about the New River Valley in Virginia and West Virginia, which is the area I'm from.

It would be interesting to learn the early history (17th century) of militias in the colonies. Apparently, the first colonies tended to have a man in charge of military affairs, who would have been John Smith at Jamestown. That's where it all started.
 
SCOTUS will not save the Constitution. It is the reason we have the massive governmental insanity that exists today. SCOTUS gave itself the power to interpret the Constitution.

Instead, what we need is SCOTUS to evaluate laws against a static Constitution. But what we have is something completely different due to FDR's threat to pack the court. They use the commerce clause out of the context of Congress' enumerated powers to pervert every part of the Constitution. Surgeons were NEVER meant to be controlled simply because a scalpel crossed state lines!

For heaven's sakes...a Federal court just ruled the government can collect private information on citizens without a warrant "so long as the information is not used." What sort of BS is that? It's a direct violation of the 4th Amendment! The Patriot Act is even worse. NDAA 2011 and the disappearing of citizens? The list of insanity goes on and we CONTINUE to do NOTHING.

We're supposed to have militias. You and I are supposed to drill periodically, check our gear, and do some training. When is the last time you marched in formation with 500 of your best friends?
 
BlueTrain said:
No, the colonial militias were state troops, there being no regional governments.
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What do you think towns, cities and counties were, if not regional governments.

The milita were NOT state troops. When the Minutemen went to meet the redcoats for the "shot heard 'round the world," they were NOT called out by the governor.

------

I'm older than you. We're too old to be wannabees, so I guess that makes us either has beens or never wases.
 
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Shall we get some of our facts straight?

The earliest recorded militia in the colonies, was first organized by Capt. John Endecott, the colonial governor of the Bay colony (MA), in 16361. Like our 2A, the colonial militia was descended from the English concept.

Hence all able bodied male citizens served, within the militia. The militia was highly localized with control generally being the individual towns and settlements2. Officers were generally elected by the local townspeople, with the exception being larger and thus more wealthy cities3.

By the mid 17th century, MA was divided into shires (later to become counties), and by law, each shires militia was commanded by the Shire Lieutenant (in England, the Lord Lieutenant). MA however never appointed Shire Lieutenants. Instead, the Sergeant Major was the nominal leader within the Shire.

Little change in the militia occurred in the colonies until shortly before the revolution. In 1774, when the British attempted to disarm the populace, citizens formed private militias that were independent of the governor's control.

Point of fact: The militia were never part of the regular Army (State or Federal. This is the root of the term: Irregulars). Even when employed by the Federal government, the various States Militias were not part of the Federal (National) Army.

Fact is, that the NY Militia, specifically the 2nd Battalion, 11th New York (artillery) Regiment has the honor of the name, National Guards. It was during the last vist of the Marquis de Lafeyette to New York in 1824, that the officers of the 2nd Bn. 11th Regiment decided to change their name in honor of Lafeyettes Garde Nationale de Paris4. This unit, a short time later, was reorganized and became the 7th Regiment of New York.

Before the start of the Spanish American War, several States had renamed their militias, National Guards. These were recognized in 1903 by the Dick Act which codified the Militia Act of 1903. The Guard was fully nationalized by the National Defense Act of 1916.

In sum, the National Guard, while descended from the States Militias, is fully part of the Federal Armed Forces and not a militia as it was/is known.

Fact: The militias only context to the 2A was that it was a singular reason, but not the sole reason, to keep the citizens armed. The 2A is a restriction upon the powers of the Federal Government, and via the 14th amendment (however the courts choose to address it), applicable against the States and local governments.




1 Massachusetts Militia Roots: A Bibliographic Study
2 The History of the Militia in the United States
3 Legal And Historical Aspects Of The Militia
4 History of the Seventh Regiment, National Guard, State of New York, During the War of the Rebellion. William Swenton, 1886. Digitized version available at Google Books: http://books.google.com/books?id=2GgUAAAAYAAJ&pg=PR1&source=gbs_selected_pages&cad=3
 
A city or town government is a city or town government, not a regional government. Today, parts of some states, such as Northern Virginia, tend to think of themselves as separate from the rest of the state (or the other way round) but there is no regional government. There are regional associations of governments buty that's not the same thing.

Do you suppose these private militias were what George Mason had in mind when he specifically said that militias were to be subject to government? If I were you, I'd worry about any private militias you might hear about. On the other hand, maybe you'd like to go out and start one. You could be the colonel, self-appointed.

I am the Blue Train and I authorized this message. All aboard!
 
BlueTrain said:
A city or town government is a city or town government, not a regional government.
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Taken wholly in context, a city/town was indeed a regional affair. Edicts and promulgations from the Governor often took days, and in some cases, weeks, to make the rounds.

Arguing otherwise is making the commonplace mistake of thinking in modern terms.
 
Well, I think the whole controversy in this thread is whether we see the 2nd amendment in modern terms or in 18th century terms. In any case, I disagree. The concept of a town being a region (the township) is northern, mostly, wouldn't you say? Even then I wouldn't call it regional.
 
Al Norris said:
...and via the 14th amendment (however the courts choose to address it), applicable against the States and local governments.
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(Not specifically written to Al, just as a general point)

Sadly so, a(nother) fine example of misapplication being used to misapply further.

I see it along the same lines as "Machines guns should be illegal because they are not in common use." when they are "not in common use" BECAUSE they're illegal.

The 14th applies to the states because it was written for that reason but being so does not justify extrapolation to other sections, IMO.

Much of the 14th, while noble in purpose, is disastrous in application. As an example, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; not only applied against the states but reinterpreted to apply to actions of individuals who work or even SPEND TIME in state institutions. Valedictorians offering prayers at graduations, crosses on public ground, banner with religious text.... somehow this has become "congress" "making a law". So insanely applied and taught, that a person RIGHTLY stating (at a LAW SCHOOL) that "separation of church and state is not in the Constitution" is LAUGHED at and MOCKED!

The 14th would have been much cleaner (for example) to simply refer to the principles in the Declaration of Independence, and the Preamble to the COTUS, and define "men" as "human" and specify that all colors, races, creeds, genders, of all kinds are "men" in this context and all laws apply equally to all.

The states already have and had their own laws and constitutions with provisions for equal rights if there were simply force that it be applied to all humanity.

Incorporating the entire COTUS against the states was and is unnecessary.

As an aside, I find it quite interesting, the insistence of many that the prefatory clause of the 2A somehow declares it's singular intent, while the second clause of the 1st, "or prohibiting the free exercise thereof", can be almost universally ignored in the insanely zealous application of that amendment against not just the states, but individual people.

Simple solution to both problems...

Apply the constitution the way it was meant to be applied and don't apply it to people and places that it WASN'T meant.

And, before we go down the road of "oh, you want to go back to slavery or 3/5th of a person", no, there are amendments that address those issues and in truth, many of the founders opposed slavery at the time and would have preferred a nation without it but they knew they could not get consensus as such and so decided to let the states work it out in time, which they did.
 
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The founding fathers did not like standing armies. The Continental Army was disbanded and the protection put back in the hands of the militia for a while. The militia is not a standing professional army such as our Armed Forces today.

The founding fathers are smarter than we give them credit for. They warned us about the present state we are in today. They didn't have crystal balls but they weer keen on human nature. They anticipated precisely what can happen when a free people retreat from their rights.

John Adams:

There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.

"Now what liberty can there be where property is taken without consent?"

"The Utopian schemes of re-distribution of the wealth...are as visionary and impractical as those which vest all property in the Crown."

We were warned...the founding fathers knew human nature.

If you wonder about our rights to own firearms and the Second Amendment John Adams covers this pretty well.

"The Constitution shall never be construed to prevent the people of the U.S. from keeping their own arms."

The founding fathers knew two things were vital to the liberty of free men. The first was the freedom of speech. The second was the right to own arms.

That is why they are first and second in the Bill of Rights.

I chuckle to myself when I hear folks say the founding fathers could not anticipate today's world. The told us what would happen over two hundred years ago. They warned us that men would tell us that we muss pass these laws to remain safe with haste. It would only be a temporary measure. They knew that the natural law of individual rights was superior to any any government made by man.
 
It is my understanding that the intended militias were State militias ... that the intent was to secure popular sovereignty at the State level ... we might for instance refer to a County militia, but that doesn't mean that the County had a militia to ensure that they got their own way, is if the County was sovereign ... Counties are subordinate to the States, and the "County" militia was still ultimately part of the State militia.
 
The 2A is about the national government disarming the people. That's all. It's not about the militia. It's not about the states
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I seem to disagree.

There was a time when Virginians had British Troops here, supposedly for our well being, but really to our detriment, and we declared that a standing army was a danger to our liberty, and that the proper defense of a free State is the people of that State, organized into well regulated militia. It was not just a matter of the individual right of Virginians to be armed, we had that when the British Troops were here, there is another principle involved.

After the Civil War there was a time when Virginia was ruled by federal troops ... I think we had some individual RKBA, but I don't think we had the Second Amendment ... in fact, at one point President (Andrew) Johnson declared that the Second Amendment was being violated.
 
And they impeached Johnson, too, didn't they?

Any idea of when and where British troops were stationed in Virginia befoe the war started? It doesn't really have any bearing on the 2nd amendment, which didn't happen for anothereight years. Just a matter of curiosity.

I did another search through the reference I mentioned earlier in the History of the Middle New River Settlements. First, I should point out that there was a lack of precise terminology and organization in these matters. However, it was clearly state troops (referred to as such) that were used on the frontier in Virginia during the period of the 1760s and 1770s. They were raised or called out by the governor, who was a royal appointee. There is also mention of the militia, too, but it isn't clear if the writer was referring to the same troops or not.

The question of regional governments may not be settled but during the frontier period in Virginia, there were few town governments. But county governments were formed as soon as possible. The so-called state troops I mentioned served along the frontier, here referring just to what is now southwestern Virginia, where there were not yet any country governments. While the settlers were really on the frontier, they were not really so isolated or uninformed as we may think either.

These state troops were apparently not large in numbers but neither were the settlers. The troops were organized along military lines and did have ranks. No mention is made of their weapons, that is, where they were obtained but since things seem to always have their origin in Williamsburg, one might assume they came from the magazine, which is still there, across the street from the courthouse.

In all fairness to the vague description of military matters just before the revolution in western Virginia, it was a history of the settlements, not a history of the militia. It was published in 1906. The revolution had started only 130 years earlier.
 
The second amendment doesn't limit gun ownership to the militia. It merely mentions the militia as one reason for the amendment. The amendment clearly states the right of "the people" shall not be infringed. "The people" is used throughout the Constitution to include all people.

Read the Federalist Papers and you will see all the contemporary thinking on the subject.
 
Any idea of when and where British troops were stationed in Virginia before the war started? It doesn't really have any bearing on the 2nd amendment, which didn't happen for another eight years.
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I don't know where troops were stationed ... I think they were throughout the States ... but the French/Indian War was over and most States no longer needed them. It appears to me to have a bearing on the Second Amendment, being part of the history of such declarations. The July, 1775 issue of Gentleman's Magazine reported:

"In Virginia at a meeting of the delegates of the colony, it has been unanimously resolved that a well-regulated militia, composed of gentlemen and yeomen is the natural strength and only security of a free government, and that the establishment of such a militia is at this time particularly necessary, and that a plan for arming, embodying and disciplining such a number of men as may be sufficient for that purpose should be immediately carried into execution."


In 1776 Virginia adopted a Declaration of Rights which included an Article declaring "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 be governed by, the civil power."


In 1788 Virginia ratified the US Constitution, while requesting amendments and a bill of rights with an article which read "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."

And in 1791 the US Bill of Rights became effective, the Second Amendment declaring that "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."



We might also consider Blackstone's Commentaries on the Laws of England (1765) explaining that "To prevent the executive power from being able to oppress, says baron Montesquieu, it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modelled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people."
 
Hugh Damright said:
I seem to disagree.

There was a time when Virginians had British Troops here, supposedly for our well being, but really to our detriment, and we declared that a standing army was a danger to our liberty, and that the proper defense of a free State is the people of that State, organized into well regulated militia. It was not just a matter of the individual right of Virginians to be armed, we had that when the British Troops were here, there is another principle involved.

After the Civil War there was a time when Virginia was ruled by federal troops ... I think we had some individual RKBA, but I don't think we had the Second Amendment ... in fact, at one point President (Andrew) Johnson declared that the Second Amendment was being violated.
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We have a misunderstanding, is all. The ability to form a militia DEPENDS on the 2A but the 2A is not ABOUT the militia. The militia is only a piece. What it's about, is freedom.
 
Of course, I am familiar with the libertarian construction, where the object is the individual RKBA, and the militia is just mentioned to support the idea ... but I have learned to read it such that the object is the security of free government, specifically security against military rule, and an armed people organized into militia are a way to this end.
 
Title 10, U.S. Code, Section 311 states that the militia consists of all able-bodied males aged from 17 to 45, both citizens and those who have declared their intent to become citizens, and female citizens who are officers of the National Guard. It also specifies that the militia consists of two classes: the organized militia (the National Guard and the Naval Militia) and all of the rest, the unorganized militia or reserve militia.

Title 10, U.S. Code, Section 312 lists persons exempted from militia service as the vice president, governors, judges, members of the armed forces, pilots of navigable waters, merchant mariners, custom house clerks, and postal and arsenal employees.

Title 32 U.S. Code, Section 109 authorizes states in peacetime to establish state defense forces in addition to their National Guard units

Title 32, U.S. Code, Section 313 adds as members of the militia those persons under age of 64 who are former members of the regular armed forces of the nation
 
I hate to point this out, I really do, but at the time the constitution was ratified, the expression "the people" was understood to mean "men," and only some of them. I doubt it was construed to mean women were to be part of the militia no more than slaves. Discussion?
 
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