Question about the 2nd Amendment (well regulated militia)

[maestro pistolero]

So what some of you folks think it means is that the 2nd admendment gives you the right to carry a concealed weapon with no government regulation.

If you mean like in Vermont or Alaska, then yes.

 

[BlueTrain]

George Mason, gentleman planter and neighbor to George Washington, had a hand in drafting some of the ideas that were covered in the bill of rights. I take particular delight in pointing that out because my wife is a direct decendant of George Mason (which I have no doubt mentioned here before many times), she being the great-granddaughter of his great-grandson. One of Mason's granddaughters married General Samuel Cooper, CSA, and another married Robert E. Lee's brother and was the mother of Fitzhugh Lee. This, after all, is Virginia, where we worship ancestors. Most of that has absolutely no bearing on the issue at hand but I enjoy teasing my wife over George Mason's role in the bill of rights.

Mason had more than a little to say on the subject of the right to bear arms, unfortuately most of which was not voted on by any legislative body. But it is still interesting reading. In any event, I suspect that they would have all found our present twisting of words, commas, and meanings to be amusing.

 

[honkylips]

So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

Again, don't misread my intentions, as I am all for the RKBA, I just always wondered about this and have never heard the appropriate answer.

Thanks for all the replies. Very interesting/informative reading.

 

[Brian Pfleuger]

So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

Because, as stated above, the "Militia" is only an example, one reason among many, it is not the singular, defining purpose for the amendment. If it were then I suppose it would make a lot more sense to have it written as:

"So long as there is a well-regulated militia,..."

 

[azredhawk44]

since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

Joe Citizen has an inherent right to lobby his community and raise a militia or posse in support of law or in defiance of tyranny.

Just because he is not currently a member of a Militia does not mean he cannot come to join a Militia. He needs to be well practiced (regulated) so that he can be of use to that militia.

And... Joe is a member of the "unorganized Militia" mentioned in US Code.

 

[ZeSpectre]

So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

They didn't call themselves "militia" but when hurricane Andrew slammed Florida you sure saw local groups form pretty damned quickly to keep the peace in the absence of "official" .Gov intervention.

I guess what I'm saying is that the need for a localized, grass roots, ability to respond to an emergency hasn't gone away in spite of political brainwashing attempts to say it has and that only "the government" could possibly handle situations.

The media demonizing of the term "militia" has been very effective so folks shy away from that term now, but go out into rural America and you'll find that local "committees" still exist aplenty.

 

[Tennessee Gentleman]

The Militia that the 2A speaks of no longer exists. It has become the National Guard. The anti-gunners knew this and so tried to link the private ownership of firearms with the said defunct militia. Heller took care of that problem by decoupling the two clauses and declared that the individual citizen had the RKBA independent of service in the militia.

The "unorganized" militia defined in the Militia Act of 1903 is but a statutory construct that has no rights, duties, or responsibilities. It is merely a pool of people that might be drawn from to fill the organized militia which is the National Guard. BTW that pool by law is defined as able bodies males between the ages of 17 and 45.

 

[USAFNoDak]

peetzakilla posted:

So far as "no government interference", just like the first amendment is regulated to make for reasonable safety for the people, so must be the second. In the case of The First, it might mean no shouting "Fire!" in a crowded theatre. In the Second, it might mean restrictions on RPGs and similar weapons. On the opposite end, banning items like "handguns" or "assault rifles" is the equivalent of prohibiting free exercise of religion or shutting down newspapers that oppose government policy.

Here's an example I've come up with that may help to explain things. Let's look at the first amendment and the right to free speech.

1. can the government prevent you from expressing your opinion, with a pencil and paper, in your own house? No way! (analogous to the right to "keep" arms").

2. can the government prevent you from having a pencil and a notebook to write your opinion, in plain view, in public, even if your opinion disagrees with a government policy? No way. (analogous to the right to "bear arms").

3. can the government prevent you from flying an airplane, for which you do not have a pilots license, and sky writing your opinion above New York City airspace? Yes they can! "analogous to "can I keep and bear any arms I darn well please".

Now, on point #3, you can certainly "keep" an airplane on your property with no pilots license. You could probably legally fly it on your own property without a license. But you can not necessarily fly it off of your own property, even it you intend to use it to skywrite a political message. Also, you could not have a nuclear bomb on board that aircraft, whether it left your property or not.

I know this is not a perfect explanation, but it has some relevance, IMHO.

 

[BlueTrain]

I think there still exists a need for a good, old-fashioned militia, at least in places. It might be that very few people would care to be part of it but it might be that was the case in 1800, too, but that's a different problem, though not insignificant. On this particular point, it could be noted that during the colonial period in North America, not counting Mexico, there weren't many people and everyone was needed when called. That's not so much the case anymore and that puts the whole concept of the militia as the whole body of the people, otherwise limited by age, etc., up in the air.

Sometimes I think "we" (gun owners) think that government is the problem and that, somehow, "we" have nothing to do with government, which is simply not so. If "we" are just a small minority, then, well, that's a different problem. But I really don't care to see any sort of local self-appointed group of people start enforcing their own laws. No such group is a militia in the American sense of the word. That sounds like something from a third-world country, complete with war lords.

I wrote in another thread some of my thinking on the militia a few months ago but it went nowhere. I guess may it is irrelevant these days. But private ownership of firearms should not hang on an interpretation of the 2nd admendment.

 

[USAFNoDak]

The states should still be able to call forth their citizens to help protect vital areas in case of emergencies. Those citizens may need firearms and could bring their own. Will we always be able to rely on the federal govt. to keep us safe? Ask the folks down in New Orleans. Ask the folks in LA during the Rodney King riots. Ask the folks in Florida who defended their neighborhoods after a hurricane devasted them. Should we always rely on the federal government to keep us safe? God, no! If it comes to repelling a foreign enemy attacking our shores, then yes, they are our first line of defense. But what if the federal govt. would fail at some point? It's not likely to happen at this point in time, but what about at some point in the future? Hubert Humphrey had a famous quote about the second amendment.

"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
-- Hubert H. Humphrey, Senator, Vice President, 22 October 1959

The militia referenced in the Second Amendment was not about the national guard. It was about citizens showing up with their own arms to perform necessary, though temporary, military type functions and duties. It was to hold the federal, standing army in awe so as to avoid any usurpation of power by the feds through the force of their army.

In the nation we live in today, the militia has become an anachronist idea for the most part. However, there could be a future event where it will be required that men stand up and be counted to defend their families, their communities, their states, and their lives. No one holds a crystal ball.

At the very least, militia or no militia, the right of the people to keep and bear arms still exists in the United States. The right was deemed a natural right by the founders and they claimed that governments were formed to SECURE those natural rights. The right exists outside of any government, even though certain forms of governments do not seek to SECURE it.

 

[Hellbilly5000]

as found on merriam-webster.com

mi·li·tia Listen to the pronunciation of militia
Pronunciation:
\mə-ˈli-shə\
Function:
noun
Etymology:
Latin, military service, from milit-, miles
Date:
1625

1 a: a part of the organized armed forces of a country liable to call only in emergency
b: a body of citizens organized for military service
2: the whole body of able-bodied male citizens declared by law as being subject to call to military service

 

[Hellbilly5000]

as found on wikipidea

The term militia is commonly used today to refer to a military force composed of ordinary citizens[1] to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with multiple distinct but related meanings. Legal and historical meanings of militia include:

* Defense activity or service, to protect a community, its territory, property, and laws.[2]
* The entire able-bodied population of a community, town, county, or state, available to be called to arms.

* A subset of these who may be legally penalized for failing to respond to a call-up.
* A subset of these who actually respond to a call-up, regardless of legal obligation.

* A private, non-government force, not necessarily directly supported or sanctioned by its government.
* An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or State Defense Forces.

 

[Tennessee Gentleman]

The states should still be able to call forth their citizens to help protect vital areas in case of emergencies.

The default position is the National Guard which is under state control unless Federalized. Failing that I think most states have such provisions BUT only IF called up by the proper elected authority. Until that point no militia type right exists to those who just wish to call themselves militia and want to have military arms.

The militia referenced in the Second Amendment was not about the national guard.

Correct, but that militia became the National Guard in 1903.

The rest of your statements about RKBA I agree with.

 

[Tennessee Gentleman]

A private, non-government force, not necessarily directly supported or sanctioned by its government.

This is not what the founders wrote the 2A about. That is nothing more than a mob with guns.

 

[USAFNoDak]

Tenn. Gentle. wrote:

Failing that I think most states have such provisions BUT only IF called up by the proper elected authority. Until that point no militia type right exists to those who just wish to call themselves militia and want to have military arms.

I agree, that the militia must be called out by elected authority before they can just start performing military duties. Private militias/armies are not what the militia in the Second Amendment is about. However, I'd be careful about saying that us citizens cannot have "military" arms. The antis consider the 1911 to be a "military" arm.

 

[USAFNoDak]

Tenn Gentle wrote:

Correct, but that militia became the National Guard in 1903.

I disagree. Where is this written? The National Guard become part of the reserve military forces for the federal govt. and could be used by the states when not in the service of the federal govt. Thus, in a hypothetical situation, the national guard could not be used by the states to battle a federal government which had gone out of control and become tyrannical. The Feds own the Guard. The states would be left with nothing but their armed citizens to defend themselves. Also, the feds may be using the guard in foreign battles, again leaving the states with no recourse but to call forth their armed citizens if required.

This is not taking into account the fact that many military personell and members of the guard would defect or refuse to obey orders which they believed were in violation of their oath to faithfully defend the US Constitution. I don't believe you can just wave a magic wand and say that in 1903, the national guard became the citizen militia referred to in the Second Amendment.

Outside of that, it's a moot point as to whether individuals retain the right spelled out in the second amendment. Militia or no militia, individuals still own the right, and the USSC has concurred. The Ninth US Circuit Court has stated that the Second Amendment also applies to the states and local governments. We are steadily making progress on this issue.

 

[Al Norris]

Do you mean to say that the operative clause may stand on it's own, or that the prefatory clause is no longer valid, or both?

The operative clause may indeed stand upon its own merit, without regard to any militia involvement.

Way too many folks, both pro-gun and anti-gun seem to be stuck in some sort of time-warp. The entire militia clause is now a moot point. It no longer has anything to do with the RKBA, in the context the battles we are and will be engaged in.

Yes, at some point this clause may be visited by the Supreme Court. But not today, nor in any reasonable and foreseeable future.

Get over it. Continued discussion of this clause shows a distinct lack of understanding the current situation. A situation placed in motion by the Heller decision.

 

[BlueTrain]

I don't think the militia clause is a moot point any more than the part about a free press would be if newspapers disappeared. Imagine that!

In reading over these posts you might think the only government is the Federal government. There are state governments, county governments, city governments, town governments, and so on. All of these entities exist for the benefit of the population and, in theory, the whole population. All government is local. Which government failed in New Orleans--or was it just the levee that failed?

Unfortunately I might agree that perhaps in some instances all of them may have failed (not referring here to New Orleans) for the simple reason that governments seem to be avoiding their responsibilities. It isn't so easy to say why that might be the case but it might be a matter of elected (mostly elected, I suspect) officials taking the easy way out. There's always the little matter of money and we all know how people hate paying taxes. It isn't the same everywhere, to be sure, but sometimes you have to wonder just who runs the government. Who the government answers to, that is.

It certainly doesn't answer to people who want nothing to do with government.

 

[publius42]

http://www.guncite.com/second_amendment_commas.html

There is no single version that anyone can identify as "THE" official version that was ratified, because the amendment was floating around with anywhere from 1 to 4 commas, and sometimes even different wording, during the ratification process.

Sorry, Antipitas, couldn't resist, though I know it's over.

 

[Webleymkv]

A very slight rephrasing of the Second Amendment makes its meaning much clearer. Scalia noted in the Heller decision that, in slightly more modern language, the Second Amendment could be read as "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people. Therefore, as Scalia noted, membership to the militia, organized or otherwise, is not necessary to enjoy the rights enumerated by the Second Amendment.