The 2nd Amend. isn't about the Milita.

T

TNFrank

New member
http://www.youtube.com/watch?v=eDygAOhm2zg
Just watched this 3 pt. series by Penn and Teller and I had a "Revelation" last night. The 2A isn't about the Milita, it's about the PEOPLE and keeping them armed so that they can be equal TO the Milita.
If you notice there are two parts to the 2A. First part. "A well regulated Militia being necessary to the security of a free State" OK, our Founding Fathers knew we'd need a Milita to keep the State Secure. But they'd seen Militas and Armies be used by Despots and Tyrrants to oppress "The People" in times past so to stop that they put in a BIG Comma and added: "the right of the people to keep and bear Arms shall not be infringed. ”
In other words, we know we'll need an Army but in order to stop that Army from being used against the people we're going to make sure that the people are armed too. That way they can defend themselves against the Army if it ever falls into the hands of a Tyrrant.
For years I thought the 2A was about "The People" being armed so THEY could be "The Milita" but I now see that the two are different things.
The Milita is one thing, controled by the State and The People are another thing, free and independant from the State.
 
Yeah - not buying that. The Militia clause helps explain WHY it is mandatory that the people be armed, and why it is important to be armed with every terrible implement of war. These 2 clauses appear together alot back then in state constitutions, papers, etc. which shows how important the association between armed people/militia was. And why not?...who better to give the tasks of protecting the people & their freedom, and executing their laws, then the people themselves, as a well trained/armed militia? Armies were of the govt/despot, Militia were of THE people. The founders knew they would need a federal Army, and a Navy, (we were to be a huge country with far-flung forts/ports) but neither are mandatory & permanent like the Militias, and hopefully the size could be better controlled if the Militias could be counted on to serve in the rolls assigned them by the Constitution.

The people/Militia already had the right to arms guaranteed them by Article 1/8/16, but the power to provide for how the Miltias would be armed was given to Congress. And so the people ensured that a further safeguard was articulated, and the right further made personal, by the 2nd.

Armed people who let themselves be controlled by despots deserve what they get.
 
Just because Penn & Teller are right in believing in RTKBA, doesn't mean their interpretation of the 2nd is right.

Waiting on Antipitas or WA to give us the actual court precedent...

Nevermind, I'll do it. United States v. Miller

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
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While the Milita IS made up of "The People" it is clear, because of the coma between the two parts of the 2A that it is not the same AS "The People". The Milita is controled by the State, in order to protect that State. Where as "The People" are free from control of the State. The entire point of "The People" being able to bear arms isn't so they can Act as a Milita, it's to give them the means possible to protect themselves From the Milita in case the Milita falls into the hands of a corrupt government.
In a nut shell the 2A is saying "We know we need an Army to protect the country but we're going to let our Citizens be armed as well just in case the Army ever turns against the people. That way they can defend theirselves against the Army."
 
1/2 and 1/2.

Some points:
- Every term used in the Constitution means the same thing each time it appears.
-There are only six permanent “American” institutions recognized in the Constitution: We the People, the States, the United States, the Congress, the President, the Supreme Court, and the Militia of the several States.
- Four of these institutions pre-date the Constitution: We the people, the States, the United States, and the Militias of the several States.

The Army is not the Militia. The people are not the Militia. These are separate entities recognized by the constitution. Certain members of The People, well armed and well trained, make up the well-regulated Militia. They MUST be armed to do so. While one does not have to be a member of the Militia to enjoy the personal right to keep and bear arms, it is VERY important reason for that right to be protected (besides the natural laws of self-defense). The people can use that right for their own defense personally, and are required to use it for defense of their state, country or laws as part of a Militia. The Militia was never seen as the bane of liberty - a standing Army was.

The 2nd isn't concerned with protecting the people from the Militia, it is concerned with protecting their arms from the govt., especially so the Militia could always be effective.
 
I think part of the question is that no standing army was established at the federal level, while a navy was.

The militia, IMO came up as a means for organized defense against predation of forces, forgeign or domestic, which could not be dealt with by individuals alone, and also form the means of the people to abolish the existing government if required.

A standing navy was approved as it was clear a group of men on the village green could not go to sea, and the importance and mutual benefit to the states of naval power and trade was keenly appreciated by the Founders. Indeed, that navy was in combat within a decade in our first round with aggressive Isalamists from Tripoli.

If you want a bit of deja vu, read the demands and comments of the ambassador from Tripoli who met with Jefferson and Franklin in London, to cease hostilities against US shipping. I digress...

The question of "keeping and bearing of arms", those words being terms of art in philosophy and law that greatly predate both the US and the broad use of firearms arises first with the individual right to effective self-defense wherever an individual might be threatened.

The effect of such a right is to make the other rights of the Bill enforceable by the individual. It has to be so, as the state then as now cannot protect all individuals all the time and in fact has legal immunity from failing to do so. Individuals can choose to be part of their own salvation or not. 2A, and prior law, removes from the state the power to prevent such individual action.

Someone with a knife at your throat owns you, as I guess we all understand. How long you live, what you say, any choice you might care to make is at his whim to deny or grant. Call your lawyer and sue? Sure, if he lets you.

When firearms are obsoleted by phasers, 2A will be no less relevant and vital to the basic rights of man, human rights. As a statement of enlightened humanity, it is timeless.

The militia AFAIK is a semi-pro collection of individuals to deal with larger threats than possible by a single individual, activated when such threats present themselves. It is not a standing army or the army's feeder system, the national guard, if in fact the vision was that it drill on occasion and standardize on arms.
 
If the militia is one thing and the people are another, then the militia might turn against the people ... but I think the main point of militia is that it is composed of the body of people and thus cannot turn against the people.
 
So you're saying that you've NEVER seen the National Guard called out to "keep order" among "The People" before. If "The People" being armed are the same as "The Militia" then we all really need to start meeting someplace once a month for Training(Regulating) because the Militia is suppose to be "Regulated". A Well Trained Milita can keep a State Free but Tyrants have a way of making the Militia do their bidding, legal or not, so it's up to "The People" to keep arms in order to protect it's self from the Militia.
 
Arguing whether the NG is THE constitutional Militia of the Several States is subject for another thread (I say it is not)...the way things are now is not they way things were then. Yes, we should all be training regularly, unfortunately people are lazy, and to do so would be inconvenient, and so many prefer to let others fill their responsibilities. Laws and acts (unconstitutional or otherwise) have been passed through the years obsoleting the constitutionally-recognized Militia of the Several States as it existed & functioned 225 years ago.

Yes the Militia was to be used against insurrections, it had actually happened before the Constitution - Shay's Rebellion, and after - federally - with the Whiskey Rebellion. A result of the 1st incident was the need seen by many for a more efficient Militia, for oppurtune govt control of the Militia, and for a stronger central govt more capable to deal with such rebellions - hence the Constitution and the militia powers granted Congress. The 2nd was the first use of the Militia Act of 1792, which demonstrated how Congress provided for the use of the militia to "execute the laws of the union, (and) suppress insurrections," asserting the right of the national government to enforce order in one state with citizen troops raised in other states, and showed how the Militia could function in a roll the constitution said it was supposed to.

Hard to think that those knowing the need for and wanting a stronger more uniform Militia always composed of the people - would at the same time expect the people to be able to defeat it - to defeat themselves??? Anyway, I have not read ANY quotes or comments by the founding fathers that protecting the people from their Militia - from themselves, was the intention of the 2nd amend.


What is actually amazing is that although the founders saw what can happen when a small armed group rebels, they did not fall all over themselves trying to disarm everyone else. Contrast that to these numnuts we have today, who think the rest of us should give up a natural right because a tiny percentage will break the law...
 
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So you're saying that you've NEVER seen the National Guard called out to "keep order" among "The People" before.
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The National Guard is *not* the Militia. The National Guard wasn't around when the 2nd was passed; it was created 100+ years later.
 
So you're saying that you've NEVER seen the National Guard called out to "keep order" among "The People" before. If "The People" being armed are the same as "The Militia" then we all really need to start meeting someplace once a month for Training(Regulating) because the Militia is suppose to be "Regulated". A Well Trained Milita can keep a State Free but Tyrants have a way of making the Militia do their bidding, legal or not, so it's up to "The People" to keep arms in order to protect it's self from the Militia.
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If some minority gets out of control and the National Guard is called in, then that does not contradict what I am saying at all. My point is that the idea was that militia be composed of the people, that the militia be inseparable from the people, so that it cannot turn or be turned against the people. And yes, there was a requirement for everyone to meet and become well regulated, such as seen in the 1777 Georgia State Constitution:

Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies.

I don't see how you figure that a militia which is separate from the people can secure free government.

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A Well Trained Milita can keep a State Free
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I wanted to point out that a "free State" is not the same thing as "a State that is free". A State that is free might have monarchy or aristocracy, but when the Framers referred to a "free State" they were referring to a State with free government i.e. a State where sovereignty resides in the body of citizens.
 
Ahh - saw the Penn & Teller thing; they are a bit too free in that segment with their use of the term "militia", and also about the amendment giving the right to the people.
 
Ok, granted, the National Guard wasn't around at the time the 2A was written but the spirit of "Militia" IS the National Guard. I totally believe that arms for "We The People" are protected by the 2A wether we're in the "Militia" or not and that said arms don't necessarly have to fit the box of "Militia weapon" for us to legally own them. Weapons that "We The People" should be able to own should include but not be limited to Militia weapons so dispite Miller(IIRC) a sawed off shotgun should be legal for We The People to own even thought it may not be considered a Militia weapon.
IF only the Militia has firearms and We The People do not that's BAD. IF all of the We The People that own firearms are supposed to be in the Militia then I feel that's not right either since We The People don't "Regulate" on a regular basis.
Look at what's happened in some Forgine countries lately, Militia under corupt Dictators have butchered millions, if the "We The People" in those countries would have had the Right to Bear Arms then it would have given them a fighting chance to stand up and not be slaughtered like they were.
I fully feel that was the Founding Fathers intend in putting that comma between the first part, the "Militia" part of the 2A and the second "We The People" part of the 2A.
Equality with our Armed Forces by the Citizens of this country, that's what the 2A is all about.
 
TNFrank, the Militia talked about by the founders, the Militia written within the 2A is us. The People.

It is not, nor has it ever been the National Guard. Title 10 Section 311(b)(1) makes this clear. The National Guard is the Organized Militia, a part of the Standing Army (nominal control is spelled in Title 32 U.S.C.). When talking about State Militias, one is referring to Title 10 Section 311(b)(2) - The unorganized Militia, that is, everyone one else not in the organized Militia.

In time of need, the Congress or the President operating within the framework of the War Powers Act can federalize (Transfers control from Title 32 to Title 10) the National Guard. Neither the Congress nor the President can do this with a State Militia. That is what a draft is for (another completely Constitutional act, by the way).
 
To summarize: The terms "The Militia", "The Militia of the several States", and "a well regulated Militia" IN THE CONSTITUTION all mean the same thing - the same entity. This entity is NOT the Army. This is not the modern day African Militias, it is not the British Forces on this continent in 1776, it is not the private militias of the '80s, and it is not the National Guard. This specific entity existed and was well understood pre-constitution. They were always made up of the people - usually able-bodied males between 15/16-50/60 years old. Militia units typically chose their own officers, and so-called "independent companies" even organized themselves--but always subject to governmental approval, supervision, and command as mandated by statute or other legislative action. Its members typically armed themselves. Membership was compulsory. They were required to attend regular musters/training.

This is THE Militia as referred to in the 2nd amendment.

It is important is to understand that THE MILITIA was the desired alternative to a STANDING ARMY.

In attempt to increase the effectiveness and uniformity of the Militia (whose showing in the Revolution and Shay's rebellion was less then stellar), the Constitution gave Congress the powers "To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress" and "To provide for calling forth the militia...". This was a MAJOR change in the way the Militia of the several States functioned (took these powers from the states) and also introduced the very real fear that the Congress, who were to provide for arming the Militia, might also be able to DISarm them.

The 2nd reiterated the importance of THE Militia - indeed stated it necessary, and also said it must be well-regulated (otherwise there would be a greater need for a standing army). The 2nd amendment also made explicitly sure the people could not be disarmed, and so that THE Militia could not be rendered ineffective.

Luckily, the Congress 1st provided for the arming the Militia the same way it had always been done - the Militia would arm themselves - with common military arms.
Much has changed since then.
 
The NG is a federal reserve force created by an Act of Congress, not by the states. The militia is drawn from the body of the people, that why the right is guaranteed to the people so that the militia can not be destroyed as it always resides in the people. The 2nd Amendment desires the people to train so that the militia will be "well-regulated" (see Fletcher's A Discourse of Government with Relation to Militias (1698) available here http://keepandbeararms.com/information/XcIBViewItem.asp?ID=2317 . In Fletcher's day the monarchy would promote the use of a paid, professional army loyal to the King in order to cause the militia to fail into disuse, of which pretext it could then be disarmed, and the army used to exert the King's will over the people. Fletcher is a fascinating read on early republican thought that influenced the Founding Fathers.
 
The grammar used in the 2nd Amendment is not exactly what the grammar would be like if it was written today. You are misinterpretting the comma.

The Militia is the people.

They were saying that a militia (which is made up of every able bodied man) is necessary for a free state, and therefore the militia (ie, the people) need to be able to keep and bear arms.

You can interpret the 2nd Amendment any way you want, but I have heard of no Constitutional scholar ever interpret it the way you have.
 
Are you responding to me? If so, you're misquoting me, I wrote that the right resides in the people, not the militia. However, the militia is not co-extensive with the people, or they would have simply written:

"The right of the people to keep and bear arms shall not be infringed."

Unless the founders were idiots, which I don't believe, they would not have used the word militia in the prefactory clause if they were talking about the same group as those comprising the people in the general clause. The right belongs to the people, the militia is a wide subset of the people. The purpose of the right is that the people be well armed and well trained to be able to issue forth the militia, but regardless of the purpose, the guarantee itself is general.


Unregistered wrote:

The grammar used in the 2nd Amendment is not exactly what the grammar would be like if it was written today. You are misinterpretting the comma.

The Militia is the people.

They were saying that a militia (which is made up of every able bodied man) is necessary for a free state, and therefore the militia (ie, the people) need to be able to keep and bear arms.

You can interpret the 2nd Amendment any way you want, but I have heard of no Constitutional scholar ever interpret it the way you have.
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