Help me understand the first part of the 2nd amendment

[jimpeel]

The first part of the Second Amendment is actually the least effective part of the Amendment. Look at the sentence structure:

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.

So let's parse the clauses.

In any sentence the dependent clauses, those within the commas, can be dispensed with and there will still exist a complete sentence.

Take the above sentence I just wrote. It couild as easily have read:

In any sentence the dependent clauses can be dispensed with and there will still exist a complete sentence.

I removed the dependent clause "those within the commas" and I still had a valid sentence. The dependent clause, however, does not stand alone.It is dependent upon the rest of the sentence to make any sense. It also does not form a complete sentence. Without the rest of the sentence to support it it is merely four words.

So let's do the same with the Second Amendment and remove the dependent clauses one at a time.

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.

Becomes:

A well regulated Militia the right of the people to keep and bear Arms, shall not be infringed.

Not a complete 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.

Becomes:

Being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

A complete sentence but akward

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.

Becomes:

The right of the people to keep and bear Arms, shall not be infringed.

Definitely a complete sentence.

Much has been made over that third comma and there have even been debates on whether the original has two or three commas or should have had four commas.

If one goes HERE and downloads a high resolution copy of the BoR, they find that there is, indeed, a third comma.

The third comma, while making the sentence akward, does not in any way change its meaning.

 

[jimpeel]

It's odd that "the people" pertains to individuals throughout the Bill of Rights, yet the liberals claim it pertains to a militia and not individuals in the 2 A only.

In the tortured minds of the antis, the Tenth Amendment reads:

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 States.

 

[Hugh Damright]

I believe that the Second Amendment was intended to check the US power over the Militia. The US is specifically not delegated the power to infringe on the RKBA of Virginia/Virginians. Gun control powers are reserved to the States.

I recently learned that the original amendments are ordered to match the order in the Constitution of the powers they address. There were twelve original amendments proposed to the States for ratification, and the first (which failed) regarded representation i.e. Article One:Section Two. And the second (which failed) regarded compensation i.e. Article One:Section Six. And the next four, which passed and became our First-Fourth Amendments, fit in with the restraints on Congress found in Article One:Section Nine.

I believe the Tenth Amendment says that powers not delegated to the US are reserved to the Virginia State Government or to Virginians ... so in a sense it does mean that powers are reserved to the States or to the States ... that's why it says "respectively", because it is each individual State that powers are reserved to.

 

[Gary H]

Hugh:

Are you saying that the states can restrict the ownership and use of firearms within their states without respect to any federal limits?

 

[blackmind]

I believe the Tenth Amendment says that powers not delegated to the US are reserved to the Virginia State Government or to Virginians ... so in a sense it does mean that powers are reserved to the States or to the States ... that's why it says "respectively", because it is each individual State that powers are reserved to.

"Respectively" means "in that order."

"I will give a bicycle, a wristwatch, and a kite to my grandsons Brian, Kevin and Michael, respectively," means Brian gets the bike, Kevin gets the watch, and Michael gets the kite.

So I think that the 10th amendment means that the order in which the power trickles down is from the fedgov, to the states, to the people, in that order.


Note that unlike the 1st amendment, which says, "CONGRESS shall make no law..." the 2nd amendment says, simply, "the right of the people to keep and bear arms, shall not be infringed." It does not stipulate who may not infringe upon that right, so it's universal. If it had stipulated "the fedgov may not infringe the right of the people to keep and bear arms," that clearly would have left open the door for the states to do so. But it does not.


-blackmind

 

[stratus]

+1 blackmind. These are inalienable rights. That means not even aliens can take them away from us. They might fry us with crazy death rays of... death, but our rights do not vanish simply because they are unjustly repressed.

 

[Hugh Damright]

Are you saying that the states can restrict the ownership and use of firearms within their states without respect to any federal limits?

If Virginia is a free State then the majority of Virginians determine what our RKBA is here in Virginia. But there are limits: If Virginians decided to ban all guns in Virginia, then we would run into federal limits; but if Virginians decided to ban CCW then we would not run into federal limits. The States' gun control powers are not unlimited. As the SCOTUS said in Presser v Illinois:

"the [Second] amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States ... [however] the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

I think that the 10th amendment means that the order in which the power trickles down is from the fedgov, to the states, to the people, in that order.

I don't follow ... power trickles up in a free government ... people empower their State, and the States empower their Union, and powers not delegated to the US remain where they were before - with each individual State or with its people.

 

[alpineman]

A well-crafted pepperoni pizza, being necessary to the preservation of a diverse menu, the right of the people to keep and cook tomatoes, shall not be infringed

+1 pax!!!

That's brilliant! I swear I'm going to use that next time the 2A "guns are only for militias, which don't exist anymore" tripe comes up!

Here's to grammar and logic!

 

[mvpel]

"A well-educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed."

The ruling in Presser misses the point of the Ninth Amendment, and was wrongly decided.

 

[Hugh Damright]

Presser ... was wrongly decided.

No, Presser was not wrong. The USBOR was intended to limit the US. That is how constitutionalism works - a constitution frames a government, and a bill of rights declares limits upon that government.

Ask not what constitutional law can learn from you, but ask what you can learn from constitutional law.



I think a good analogy of the Second Amendment, one that has an analogy to both the collective right and the individual right, would be:

A well representative government, being necessary to the security of a free State,
the right of the people to vote shall not be infringed.

In this light, having the individual rkba without having well regulated State militia, is like having the individual right to vote without having elections.

 

[mvpel]

The anti-Federalist argument against the Bill of Rights has obviously come to full realization.

The reasoning in Presser suggests that they think that rights come from the government, rather than governments being established to protect pre-existing rights, and that if gun bans had no effect on the US Militia, they would be acceptable for the states to enact. So much for that idea.

 

[Hugh Damright]

The reasoning in Presser suggests that they think that rights come from the government, rather than governments being established to protect pre-existing rights

"the right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence." -- Presser v Illinois

 

[Hugh Damright]

Help Me Understand the First Part of the Second Amendment

Here are a few quotes which I think explain the first part of the Second Amendment rather well, beginning with a definition of the term "free State" found in Webster's 1828 Dictionary:

FREE: In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.

Instituted by a free people, or by consent or choice of those who are to be subjects, and securing private rights and privileges by fixed laws and principles; not arbitrary or despotic; as a free constitution or government.

There can be no free government without a democratical branch in the constitution. (--Webster's 1828 Dictionary)

In every free government, the people must give their assent to the laws by which they are governed. This is the true criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one, or a few. (--Antifederalist Paper "Brutus #1")

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. (--Blackstone, Commentaries on the Laws of England (1765))

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. (--Virginian Declaration of Rights, June 29, 1776)

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. (-- US Bill of Rights)