Question about the 2nd Amendment (well regulated militia)

[Tennessee Gentleman]

that the Founders considered our right to arms

I think the real right there is one of self defense.

Consider the important phrases such as "Congress shall make no law..." and "shall not be infringed", among others.

That's OK as long as we acknowledge that all rights are subject to restriction and if those restrictions meet certain constitutional tests then there is no infringement of said right.

 

[Webleymkv]

Quote:
Originally Posted by Webleymkv
it did so by protecting the rights of the people (who comprised the militia).

No I think the preferatory clause protected the right of the state to arm the militia (so the Feds couldn't disarm it) and that the operative clause protects the right of individuals to bear arms in their own personal self defense.

The preferatory clause is simply an explanation of the purpose of the operative clause. The preferatory clause in and of itself protects nothing.

Quote:
Originally Posted by maestro pistolero
Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?

I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible. We will not fight an enemy of the United States with a militia but a standing army, and navy (or air force).

Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

The salient policies underlying the protection of the right to
bear arms are of inestimable importance. The right to bear
arms is a bulwark against external invasion. We should not be
4508 NORDYKE v. KING
overconfident that oceans on our east and west coasts alone
can preserve security. We recently saw in the case of the terrorist
attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.1 Second, the right to bear arms is a protection against
the possibility that even our own government could degenerate
into tyranny, and though this may seem unlikely, this possibility
should be guarded against with individual diligence.

 

[ZeSpectre]

I have to say that this has been a lot more interesting than the previous couple of discussions I've followed on this topic.

 

[Tennessee Gentleman]

The preferatory clause is simply an explanation of the purpose of the operative clause.

Which was the right of the state to arm a militia and the right of the individual to protect himself personally.

Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

Again it is dicta and not law. He is free to his opinion which in the issue here IMO he is no better informed than I. However, he is talking about small scale incursions by terrorists and not a conquering large scale invasion from another nation state which is what I thought MP was talking about. In the case of a terrorist the issue is self defense as would apply to a citizen not repelling a foreign army which would be opposed by our own.

 

[Webleymkv]

Quote:
Originally Posted by Webleymkv
The preferatory clause is simply an explanation of the purpose of the operative clause.

Which was the right of the state to arm a militia and the right of the individual to protect himself personally.

The amendment does not specifically protect the right of the states to arm militia nor the right of the militia to be armed because it is not neccessary. By protecting the right of the individual to be armed, the amendment makes it impossible to disarm the militia. The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.

Quote:
Originally Posted by Webleymkv
Circuit Judge Gould would seem to disagree in his concurring Nordyke opinion.

Again it is dicta and not law. He is free to his opinion which in the issue here IMO he is no better informed than I. However, he is talking about small scale incursions by terrorists and not a conquering large scale invasion from another nation state which is what I thought MP was talking about. In the case of a terrorist the issue is self defense as would apply to a citizen not repelling a foreign army which would be opposed by our own.

So you disagree with the Judges opinion? Maestro Pistolero asked about the capacity to which armed citizens would serve in situations described by Nordyke. Apparently, you do not think they would serve at all. While you are certainly entitled to your opinion, that of Judge Gould carries a bit more weight that those of people who post anonymously on the internet.

 

[Tennessee Gentleman]

The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.

I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both. I think there were two purposes at work when the 2A was written and the militia of the states were one and the individuals RKBA was the other. Heller clarified this and that is what Al meant when he said the miltia was no longer an issue with the individual right. I think you are trying to in a round about way come back to your views of the militia today which I thought we weren't going to rehash?

So you disagree with the Judges opinion?

Do you understand the difference between dicta and law in a court opinion? His comments on terrorists were not the issue before the court and have nothing to do with the case. Webley, you have a tendency I have noticed to cherry pick comments from court cases that you think lend credence to your arguments that have no relavence to the issue. Anyway, I answered MP's question about the terrorist's threat. BTW the Nordykes lost.

that of Judge Gould carries a bit more weight that those of people who post anonymously on the internet.

Says you. You only like what he says and if he said something else you wouldn't give him such weight. I never heard of the guy and could care less what his dicta says. It isn't law. Anyway, Webley I am not trying to change your mind as it is already made up.

 

[USAFNoDak]

Tenn Gentle posted:

Nothing in that act refers to anyone in the unorganized militia being "armed".

I agree that nothing in the Dick Act of the Militia Act of 1903 mentions anything about anyone being armed. However, the second amendment does mention the individual right to keep and bear arms. One reason is so that citizens may either be called forth or volunteer for militia duty, under authority of government or law enforcement officials, and bring their own arms to do so. Thus, the unorganized militia, is comprised of all males ages 18-45 and those women who are part of the National Guard. Those members are not required to have arms, however, they have a right to keep and bear arms. That was my point. I never said that the 1903 law stated that the unorganized militia was to be "armed". You misread my post.

 

[maestro pistolero]

I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible.

Nor answer the question directly, with all due respect, and there is much.

I fail to see how a nuclear weapon would prevent a surreptitious attack through our demonstrably porous borders. We haven't made so much as a dent in the wholesale flow of contraband and undocumented individuals from the south.

I am not suggesting an unprofessional force to deal with the border, only pointing out our vulnerability, and the irrelevance of a nuclear deterrent in domestic defense.

We forget so quickly how a determined, creative enemy is capable of wreaking untold havoc in a single day. If 9/11 was only the start of an invasion, and not an isolated set of planned atrocities, we might be thinking a little differently about the role of armed citizens for immediate defense of communities. But our sense of invincibility is resilient, and illusory, in my opinion.

Certainly the professional forces are the real deterrent, but they are slow to mobilize. The people, on the other hand are everywhere. That, in part, is why I believe the founders considered the whole of people the militia.

I think we overlook the wisdom of that idea at our own peril. I am not ready to decide that the whole idea of the militia, or at least the capability of raising one, is useless and outdated.

 

[Tennessee Gentleman]

One reason is so that citizens may either be called forth or volunteer for militia duty, under authority of government or law enforcement officials, and bring their own arms to do so.

Again, that is not the purpose of the unorganized militia, it has no other purpose than the one I reported earlier. Did you take a look at the link I provided?

The unorganized militia laid out in the Militia Act of 1903 is not the well-regulated militia that the 2A refers to. You are mixing up militias. The proper historical lineal descendent of the 2A militia is the National Guard.

Also, IF and that's a huge one, such a militia were ever called I suspect the states would supply the weapons if for no other reason pure logistics.

 

[Tennessee Gentleman]

Nor answer the question directly, with all due respect, and there is much. I fail to see how a nuclear weapon would prevent a surreptitious attack through our demonstrably porous borders. We haven't made so much as a dent in the wholesale flow of contraband and undocumented individuals from the south.

You said "foreign invaders" and since I did not see what you were talking about (I didn't look at Nordyke for the specific quote) I assumed you were talking about invasion of a foreign army. I would suggest next time to provide the quote directly so I know what you mean.

As to our vulnerability to terrorists I have no argument there. However, I see that as a LE job and not one for an unauthorized untrained miltia. I would be concerned about a "citizen militia" trying to do a LE job and getting caught inbetween the two and causing needless havoc.

The people, on the other hand are everywhere.

And generally untrained and unorganized to resist much more than attacks against their direct person. But I do support RKBA and CCW very much so do I think that helps us in general? Sure, but that is not a militia.

I am not ready to decide that the whole idea of the militia, or at least the capability of raising one, is useless and outdated.

I would talk to your state government then and see why they won't raise one. They can if they wish. Why do you think they don't?

 

[USAFNoDak]

The Second Amendment "grants" nothing. The right to keep and bear arms is not a right granted by the Second Amendment, nor is it in any way dependent upon it for it's existance.

A right is a natural thing that individuals possess. The right to keep and bear arms exists outside of any government entity. A state is a government entity. The states had the "power" to arm their militias which were comprised of a subset of "the people" at the time. The Second Amendment stopped the "Central Government" from disarming the people, and one reason for this was to make sure that the states had well regulated militias, which could not be disarmed since the people could not be disarmed. If the state militias were comprised of a subset of the people, and all of the people had their rights to keep and bear arms secured by the Second Amendment, then the subset of people comprising the state militias also had their rights to be armed protected. By logic then, the state militias could not be disarmed by the "Central Government".

The Second Amendment prevents disarmament of the state militias through the protection of the people's right to keep and bear arms. The two clauses are connected, but the operative clause is not dependent upon the prefatory clause as some of the anti gun folks have tried to argue. The Heller case should put that arguement on the trash pile as we go forward with the debate. Nordyke also makes a point that the Second Amendment holds against the states as well. Thus, the states cannot disarm their citizens if this holds and gets a hearing at the USSC, eventually.

 

[Tennessee Gentleman]

The Second Amendment "grants" nothing.

I did type too fast and used grant when I meant protect. My Bad

The two clauses are connected, but the operative clause is not dependent upon the prefatory clause as some of the anti gun folks have tried to argue.

Agree. However, the reason the antis argued that was because the militia is defunct. Therefore if they could make them dependent on each other then they could restrict guns anyway they chose.

BTW, the 2A only protected the states and individuals from the Feds. The states, however, could disarm anyone they wished and did so with freed slaves.

 

[USAFNoDak]

Tenn Gentle:

Again, that is not the purpose of the unorganized militia, it has no other purpose than the one I reported earlier. Did you take a look at the link I provided?

The unorganized militia laid out in the Militia Act of 1903 is not the well-regulated militia that the 2A refers to. You are mixing up militias. the proper historical lineal descendent of the 2A militia is the National Guard.

Also, IF and that's a huge one, such a militia were ever called I suspect the states would supply the weapons if for no other reason pure logistics.

I read the link you provided and nowhere did I see where it said that the states could not call upon the members of the unorganized militia to come forward for duty. I saw where it explained the reasoning for splitting the militia into those two areas, and I understand that some people did not want to serve in militia duties. But the law said they must, so they came up with a "work around" for the law. I don't dispute that at all. But, let's say I'm a 24 year old who got out of the army infrantry two years ago. I decide not to join the national guard after my regular tour is over, but if the SHTF, I'd like to volunteer for militia duty and bring my AR-15 and my 1911 with me. What's to say the state couldn't call up like minded individuals to help out if their own national guard was off doing duty for the feds? In the situation I just described, aren't I "legally" part of the unorganized militia?

What if the states didn't have the weapons because their national guard was using them over in Somalia or some other rat infested country?

Maybe none of this will happen in our life times. What about our kids and grand kids. What if people stop volunteering for military duty because the liberals brain wash too many kids into believing that military duty is not something that "normal" people do? Remember, the National Guard is purely voluntary.

The unorganized militia is not today's functioning militia, and the functioning militia is the National Guard. I've not said this wasn't the situation. However, when the 2nd A was written, the militia was not split as it is today. Today's unorganized militia, while being a pool of potential draftees, still has members who have a right to keep and bear arms. Maybe we will have to draft them or let them volunteer to help if the SHTF.

 

[USAFNoDak]

BTW, the 2A only protected the states and individuals from the Feds. The states, however, could disarm anyone they wished and did so with freed slaves.


Yes, but that may change with Nordyke setting some precedent. I suspect the USSC will have to take up incorporation at some point in time. If we've already got the looney 9th Circuit on board with incorporation of the Second, I like our chances with other circuit courts and the USSC. Still, nothing is for sure when dealing with our court systems.

 

[Al Norris]

They way I read it, I always take it to mean that the public has the right to keep/bear arms for the purpose of maintaining the aforementioned 'well regulated militia'.

Can somebody explain the significance of this part of the amendment. It's always kinda made me wonder. Like I said, the wording of amendment, to me, never translates to the right to keep/bear arms for all individual citizens.

When looking back at the questions asked in the OP, I see that we have strayed very far afield.

I hazard to say that the question has been answered.

The current diversion over a clause that is now disconnected from the individual right to keep and bear arms is nothing more than venting, because some want to make the militia more important than it has been in over a hundred years.

Remember, the prefatory clause stated a reason to enumerate a right of the people. The clause did not state all the reasons, anymore than the BOR enumerates all of our rights (Hamiltons fear).

 

[Wildalaska]

A right is a natural thing that individuals possess. The right to keep and bear arms exists outside of any government entity.

Wrong. No rights at all exist outside of same being defined by government itself

WildselfevidentAlaska TM

 

[USAFNoDak]

Tenn Gentle:

I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both.

First of all, we've already covered the error of using "grants" rather than "protects" or "secures" when talking about rights. However, what "rights" of the states are protected in the Bill of Rights? I think it protects some of their powers, but mostly the Bill of Rights is a laundry list of no-no's for the Central Government in order that the rights of the people shall be protected. It tells the Federal government what they CANNOT do. This inherently protects our "individual rights" as well as protecting "the powers" of the states.

The 10th amendment states:

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.

I'm not sure I see any mention of states "rights" in any of the BOR.

 

[USAFNoDak]

Wrong. No rights at all exist outside of same being defined by government itself

Not according to the founding principles upon which this nation was formed. There is a right to life for every human, and governments should be formed to protect that right. Rights may not be exercised because of bad government, but the right still exists.

 

[Al Norris]

No rights at all exist outside of same being defined by government itself

Shame on you Ken! Locke, Hutcheson, Hegel, et al, would disagree most vociferously. Dare you dis the enlightenment?

Tennessee, Ken was baiting me.

 

[Webleymkv]

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
The Second Amendment itself grants the right specifically only to the people, but that right was granted by extension to the militia because it was composed of the people.

I think you are mistaken and the BORs granted rights to both individuals and the states and the 2A granted to both. I think there were two purposes at work when the 2A was written and the militia of the states were one and the individuals RKBA was the other. Heller clarified this and that is what Al meant when he said the miltia was no longer an issue with the individual right. I think you are trying to in a round about way come back to your views of the militia today which I thought we weren't going to rehash?

This has nothing to do with my views on the militia. None of the amendments in the Bill of Rights guarantees any rights to the states. Amendment Ten mentions the state in that certain powers are delegated to it, but the amendment does not guarantee them any rights. Amendments One through Eight, in fact, specifically guarantee rights to the people rather than the states. The only rights guaranteed to the states in the Bill of Rights are guaranteed by extension through the people as it would be impossible to strip a state of rights such as speech, press, etc. without stripping the people of that state of their rights. No guarantee of a collective right (afterall, a guarantee of right to a state is a collective right) is necessary since an individual right extends into the collective.

Quote:
Originally Posted by Webleymkv
So you disagree with the Judges opinion?

Do you understand the difference between dicta and law in a court opinion? His comments on terrorists were not the issue before the court and have nothing to do with the case. Webley, you have a tendency I have noticed to cherry pick comments from court cases that you think lend credence to your arguments that have no relavence to the issue. Anyway, I answered MP's question about the terrorist's threat. BTW the Nordykes lost.

I understand the difference, however since there is no precedent in law to guide us one way or the other, dicta is the best we've got. Considering the study that is typically necessary to become a judge, I take Judge Gould's interpretation more seriously than those of someone posting anonymously on the internet. With regards to cherry picking, I quote many of the same sources you do, however I typically quote more of their context so as to more fully illustrate their meaning. Also, I fail to see how quoting dicta from the case that is under discussion equates to cherry picking. I quoted this passage because it is representative of what Maestro Pistolero's question was about, a question which you answered in a very roundabout and unclear way.

Originally posted by Wildalaska

Quote:
A right is a natural thing that individuals possess. The right to keep and bear arms exists outside of any government entity.

Wrong. No rights at all exist outside of same being defined by government itself

Well, according to the Heller and Nordyke decisions, certain fundamental rights predate their enumeration by the Constitution.