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[The Second Amendment] - What the Hell IS a militia!?
Dignified Pauper
Registered User regular
Registered User regular
(NOTE TO THREAD : Please read post 15 before proceeding. --Irond Will)
Edit: My apologies if this current topic is being debated, but I think it should be discusses separate of any threads about the Gifford shooting, however, I have made reference to it. I assume it has also been debated in the Gun thread, but I think the discussion deserves its own thread, outside of any other thread.
The many Variations of the Second Amendment to the United States' Constitution
In 1791, with the passing of the Bill of Rights, the 2nd Amendment was finally drafted to state:
What does this say? What does this mean?
Recently, I had the opportunity to listen to an interview with a Constitutional Lawyer out of Philly, and he inspired me to look up the history of the Constitution.
The first draft of the 2nd Amendment stated:
This was what James Madison firstly drafted up, two years before the BoR passage.
The following month:
This draft is much clearer than the first, and it makes much more sense that the right of the people to bear arms relates directly to them forming a militia out of an act of security. It also states that the government cannot require us to own guns. This is an interesting draft because it addresses two things. It does not give the individual the right or the limitation to own a hand-gun, rather, it is set up as a policy decision for local and state legislatures to decide specifics on civilian weaponry. Further, in context, I believe it is important to understand that "arms" in the sense of the late 1700s relates directly to military weapons.
After deliberation, the House sent a new version to the Senate.
Again, this furthers the idea that a well regulated militia, being a body composed of by the people, is the best security of a free, individual state, that the right of the people to form a militia and bear military weapons shall not be infringed, but also not be mandatory. This is also rather clear that it does not enable the right to a citizen to own a weapon, it only speaks in reference to a militia.
The following day, the scribe changes the semi-colon after "infringed; but" to a "comma." (August 25th, 1789). Fair enough change, rather minor, the text itself doesn't change meaning.
However, as time went on, the founders really became swept up with this concept and the necessity of punctuation within the meaning. Finally, the ended the last bit of the clause (giving way for the possibility of a draft) and changed the amendment to read:
This is much more different, and it is the exact wording of our current amendment, but with much different punctuation. If we take out different parenthetical phrases, the amendment can read:
Simplest: A well regulated militia shall not be infringed.
Version A: A well regulated militia, being the best security of a free state, shall not be infringed.
Version B: A well regulated militia, the right of the people to keep and bear arms (military weapons), shall not be infringed.
Version C: Being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
final: A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The different variations all have different meanings, but those variations are completely unimportant, because what is final in this draft is what we ended up with, with only a minor change.
One comma. One parenthetical phrase. The move to add "for the common defense" after "bear arms" was defeated in the Senate. I haven't delved into exactly why, but it's interesting that this came up. For the common defense of whom, of what?
Going back to the House, the House finally settled on a finalized and approved version of the Senate Bill, but then added the "necessary" clause.
What does this then say. Clearly, with some of the earlier drafts, it appears as though the Amendment, a law to our Constitution that lays out every law in America, applies to the formation of a militia by the people. Understanding that a federal government, or foreign entity could invade the sovereign states, there was a feeling that the people had a right to protect themselves.
This idea was also upheld in the courts from 1791 to 2008, as no Supreme Court during that time period ever struck down a ruling on banning guns in the hands of civilians. DC did it in the 70s, other cities and municipalities did it in the 1800s. And while there are numerous court cases that reached USSC, they never overturned bans on weapons.
In 2008, Chicago passed its ban on hand-guns, and the Supreme Court, for the first time in history, struck down a ban on weapons. Why the sudden change?
In my opinion, with issues dealing with local levels of crime, violence, and possession of weapons, I do not believe 9 lawyers in DC, who are not elected, cannot be fired (easily), should have a say in the laws of my state and local government. When it comes to human rights issues on a national level, absolutely. The USSC has a duty to decide these laws, but when it comes to something that, in Chicago or DC varies wildly from Puxatawney, the USSC should not be involved. It should be decided by the people through their elected legislature, and if the people are unhappy with the legislature, the next election will show that.
This conversation has come to rise through the shooting of Congresswoman Gifford, and I think it's an interesting conversation, looking at history, to analyze that the 2nd Amendment does not apply to individual citizens, but directly to militias, and that there is a reason for local legislatures to limit access to weapons in order to curb violence. Being that there is no militia's today, or the closest equivalent being the National Guard, which is federally run anyway, the 2nd Amendment appears to be completely void in today's context. It is outdated and unnecessary.
I am in no way advocating taking freedoms away from anyone. The ability to own a gun was, in my opinion and reading of history, never a right, nor does it make you any more free than someone without a gun. My argument is neither, it's that this isn't something to be decided on a national level because the community in Houston has a different necessity than the community in Chicago. Therefor, it should be left up to each municipality - a VERY conservative stance for this ardent liberal.
Edit: My apologies if this current topic is being debated, but I think it should be discusses separate of any threads about the Gifford shooting, however, I have made reference to it. I assume it has also been debated in the Gun thread, but I think the discussion deserves its own thread, outside of any other thread.
The many Variations of the Second Amendment to the United States' Constitution
In 1791, with the passing of the Bill of Rights, the 2nd Amendment was finally drafted to state:
2nd Amendment wrote: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.
What does this say? What does this mean?
Recently, I had the opportunity to listen to an interview with a Constitutional Lawyer out of Philly, and he inspired me to look up the history of the Constitution.
The first draft of the 2nd Amendment stated:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
This was what James Madison firstly drafted up, two years before the BoR passage.
The following month:
Draft 2, July 21st, 1789 wrote:A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
This draft is much clearer than the first, and it makes much more sense that the right of the people to bear arms relates directly to them forming a militia out of an act of security. It also states that the government cannot require us to own guns. This is an interesting draft because it addresses two things. It does not give the individual the right or the limitation to own a hand-gun, rather, it is set up as a policy decision for local and state legislatures to decide specifics on civilian weaponry. Further, in context, I believe it is important to understand that "arms" in the sense of the late 1700s relates directly to military weapons.
After deliberation, the House sent a new version to the Senate.
Draft 3. August 24, 1789 wrote:A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
Again, this furthers the idea that a well regulated militia, being a body composed of by the people, is the best security of a free, individual state, that the right of the people to form a militia and bear military weapons shall not be infringed, but also not be mandatory. This is also rather clear that it does not enable the right to a citizen to own a weapon, it only speaks in reference to a militia.
The following day, the scribe changes the semi-colon after "infringed; but" to a "comma." (August 25th, 1789). Fair enough change, rather minor, the text itself doesn't change meaning.
However, as time went on, the founders really became swept up with this concept and the necessity of punctuation within the meaning. Finally, the ended the last bit of the clause (giving way for the possibility of a draft) and changed the amendment to read:
Draft 4 - Sept. 4th, 1789 wrote:A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
This is much more different, and it is the exact wording of our current amendment, but with much different punctuation. If we take out different parenthetical phrases, the amendment can read:
Simplest: A well regulated militia shall not be infringed.
Version A: A well regulated militia, being the best security of a free state, shall not be infringed.
Version B: A well regulated militia, the right of the people to keep and bear arms (military weapons), shall not be infringed.
Version C: Being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
final: A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The different variations all have different meanings, but those variations are completely unimportant, because what is final in this draft is what we ended up with, with only a minor change.
Draft 5, Sept. 9th, 1789 wrote:A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.
One comma. One parenthetical phrase. The move to add "for the common defense" after "bear arms" was defeated in the Senate. I haven't delved into exactly why, but it's interesting that this came up. For the common defense of whom, of what?
Going back to the House, the House finally settled on a finalized and approved version of the Senate Bill, but then added the "necessary" clause.
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.
What does this then say. Clearly, with some of the earlier drafts, it appears as though the Amendment, a law to our Constitution that lays out every law in America, applies to the formation of a militia by the people. Understanding that a federal government, or foreign entity could invade the sovereign states, there was a feeling that the people had a right to protect themselves.
This idea was also upheld in the courts from 1791 to 2008, as no Supreme Court during that time period ever struck down a ruling on banning guns in the hands of civilians. DC did it in the 70s, other cities and municipalities did it in the 1800s. And while there are numerous court cases that reached USSC, they never overturned bans on weapons.
In 2008, Chicago passed its ban on hand-guns, and the Supreme Court, for the first time in history, struck down a ban on weapons. Why the sudden change?
In my opinion, with issues dealing with local levels of crime, violence, and possession of weapons, I do not believe 9 lawyers in DC, who are not elected, cannot be fired (easily), should have a say in the laws of my state and local government. When it comes to human rights issues on a national level, absolutely. The USSC has a duty to decide these laws, but when it comes to something that, in Chicago or DC varies wildly from Puxatawney, the USSC should not be involved. It should be decided by the people through their elected legislature, and if the people are unhappy with the legislature, the next election will show that.
This conversation has come to rise through the shooting of Congresswoman Gifford, and I think it's an interesting conversation, looking at history, to analyze that the 2nd Amendment does not apply to individual citizens, but directly to militias, and that there is a reason for local legislatures to limit access to weapons in order to curb violence. Being that there is no militia's today, or the closest equivalent being the National Guard, which is federally run anyway, the 2nd Amendment appears to be completely void in today's context. It is outdated and unnecessary.
I am in no way advocating taking freedoms away from anyone. The ability to own a gun was, in my opinion and reading of history, never a right, nor does it make you any more free than someone without a gun. My argument is neither, it's that this isn't something to be decided on a national level because the community in Houston has a different necessity than the community in Chicago. Therefor, it should be left up to each municipality - a VERY conservative stance for this ardent liberal.
PSN: DignifiedPauper
3DSFF: 5026-4429-6577
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Then your beef is with the 14th Amendment, not the 2nd. And you're right, that puts you in some strange company.
Sure, state and local government have some discretion when it comes to how loose or restrictive they make their guns laws. But if the 2nd Amendment is to mean anything, there needs to be a limit to how much a given government can restrict that right.
Rigorous Scholarship
3DSFF: 5026-4429-6577
course real militias don't exist anymore
their role is filled mostly by the national guard
And the Constitution does not "grant" rights. It recognizes some, but not all, already-existing rights. Hence the text of the 9th Amendment:
There was a debate as to whether to even include the Bill of Rights in the Constitution, as people like Jefferson were worried that it would be construed as an exhaustive list of rights, rather than just an emphasis of certain rights.
In any event, SCOTUS has clarified the point of whether an individual right to bear arms exists in the Heller and McDonald cases.
Rigorous Scholarship
This is my main beef with the 2nd - it was based on the necessity of common national defense, which at the time was provided by the militia organized largely on local levels. I personally also disagree with the interpretation as a basic individual right to the extent the court has supported it at this point, but it's not going anywhere unfortunately.
There are two parts to the US militia:
1. The organized militia: That's the National Guard.
2. The unorganized militia: Every able-bodied male* older than 16 and younger than 45. In other words, the vast majority of forumers are currently part of the unorganized militia.
* I don't know how this stacks with the 14th Amendment, but perhaps women are now included as well.
The right is granted to the people, not the militias. That suggests an individual rights interpretation to me. Note that it's the same phrase used elsewhere in the BoR to refer to other individual rights.
The idea that you've expressed in this paragraph has consequences far beyond gun ownership, and is, frankly, pants-on-head crazy. If a state or local government is infringing the legal rights of a minority group of citizens - for example, banning black people from going to the same schools as white people - then it both the role and the responsibility of the federal court system to step in and protect that minority.
the "no true scotch man" fallacy.
What would be the real-world implication of an individual rights interpretation? The government still has the capacity to regulate individual rights (and in fact such regulation is clearly implied by the Second Amendment itself).
the "no true scotch man" fallacy.
I'd guess like the swiss where all males of a certain age have a weapon and if something were to happen would form a militia. The Swiss don't really have gun crime either.
This is exactly right.
(BTW, the Naval Reserve, and a few state military reserves - like the California State Military Reserve - are also considered parts of the organized militia. The California reserve sometimes gets deployed to those huge wildfires we get every summer.)
the "no true scotch man" fallacy.
before this thread gets rolling let me make this clear
be polite
don't call people names
don't make a big show out of acting as though an intricate knowledge of firearm specs is a necessary precondition to having a view on firearm regulation
it isn't
in fact, i want this thread to skirt the minutia of firearm operation as much as possible
i will throw cards on anyone who does any of this shit on either side of the debate
you have been warned
I think it would look like what it looks like right now, given that's what the SC has ruled.
Are you refering to the 'well regulated' phrase? The counter-argument to that I usually see is that 'well-regulated' was a phrase that meant 'well trained' or 'properly functioning', as opposed to 'heavily controlled by the government'. It was a phrase derived from double-barrel rifles and the desire to adjust sights so that both barrels would strike a target as close to the same place as possible. A rifle thus sighted was said to be 'well-regulated', and by analogy a militia that could perform well in close order drill was also said to be 'well regulated'.
And that limit should be decided, as it has in the past, by the SC. Of course, we probably disagree with to what extent the limit should pertain, but there are some things that I think every sensible person can agree on. (Military hardware etc)
Okay.
So if we enacted requirements on gun ownership like: a gun owner has to be trained, has to refresh their training periodically, and has to submit their weapon to functional inspection; it sounds like we could require all of these things even if we decide that firearms ownership is an individual right.
the "no true scotch man" fallacy.
Switzerland is a pretty terrible comparison. More people live in New York City than live in Switzerland, the scale and circumstances of the two countries are completely different.
I guess what I've never understood about this whole debate is where in the 2nd amendment people are seeing a right to own any weapon they want and as many as they want. It's always seemed open to regulation to me.
Indeed, and it seems that's about what the Supreme Court as said (as it has been explained to me by others). Although as a corollary argument the implementation of such programs might be limited by other rights and practical considerations.
the "no true scotch man" fallacy.
The Feds can also further set limits within the limits imposed by SCOTUS. They can pass laws that limit the states to a range of 20-40, for example.
Rigorous Scholarship
I'd just like to point out: Whenever someone mentions those oh so unelected "lawyers," remember you are living in a Republic, A representative democracy.
i.e., You elect representatives to make a majority of the laws and decisions in this country, it is not a direct democracy. The appointment of Judges is part of that representative decision making in two branches of government (appointment by the executive, confirmation by the legislative). And the separation of their appointment from the direct whims of the people is to help insulate them from the sometimes... frantic nature of the Electorate.
So should we make requirements to vote as well? I think we tried that once.
One of these things is not like the other.
For instance: you have to be registered to vote.
I agree with this, actually. Legislative branch can set minimum limits of compliance, and the judiciary sets the maximum regulation, and the states decide where to be within that range. The one thing you made kind of unclear is that I don't think that the legislative can set an upper limit of compliance. For example, if Massachusetts wants to have more than the specified possible regulation for pollution or whatever, that's their business as long as it's within the bounds of what the SC has deemed Constitutional.
You're right. We have 4 Amendments clarifying and making it easier each time to not infringe on an individual's right to vote.
You know I still have to show qualifications and register to vote......
And going to the polling station isn't going to kill someone if I fill out a ballot wrong. If you want a right that entails deadly force than you need to show you can exercise it properly.
This is true, but the framing suggests that the right is given to individuals not as a 'natural right', but because of the necessity of security and the paradigm for providing it. If security is necessary for a free state, and security is to be provided by regulated militia, then the security of the state depends of the right of the citizens to bear arms.
The right is stated as that of the individual citizen, but stops short of saying 'because you're born with the natural right to be well armed'. The individual's right was inferred from the method of providing for the common defense (largely self-equipped militias).
While I have a philosophical problem with the individual rights interpretation (the country will far apart or devolve into tyrany if you can't be armed to the teeth? Really?) the bigger practical problem I see with it is that it imposes an incredibly stiff standard for regulating weapon sales for basically no practical gain whatsoever. What really do we lose in security if Gun Loving Citizen Joe can't buy a supressor for his handgun or an assault rifle? How does that in any way threaten the nation?
Well, also, restrictions on numbers wouldn't really do anything. I mean, I know it's somewhat trite (if true, to some extent) to say that "the only people this will affect are people who care about the law), but in this case that's totally pointless. Someone really only needs one gun to perform gun violence, and for shooting sprees, two pistols. Owning more than that doesn't make anyone more dangerous, and if they carry it on their person I'm pretty sure it makes them less dangerous than a guy with two pistols and extra magazines.
I guess I'm saying that the only reasons to ban someone from owning a large number of guns is either if they're either supplying thugs (already illegal, and I'm pretty sure that most people who own many guns are NOT doing this) or if you like restricting guns to feel good about having restricted guns, without actually doing anything to stop gun crime.
Nowadays, it just seems antiquated. First we have a massive regular military to defend us. Also, if somehow the regular military wasn't enough, a bunch of civilians with hunting rifles would be completely useless. Handguns would be especially useless- what are you going to do with a handgun against a tank or a bomber? In order for them to credibly defend the nation, we'd have to allow people the right to own any weapon they want, with no regulation. You want your own tank? go for it. Hell, go buy your own private nuclear bomb, too. Because that's the only way they'd stand a chance against a regular army.
Hopefully everyone agrees that letting everyone own their own tank would be a bad idea. That's why I think we should recognize that the 2nd amendment is antiquated and just get rid of it entirely. We could still allow private ownership of guns, but not call it a human right- like we do with cars, basically.
Sure but none of that addresses how regulation is unconstitutional, which is what some folks shout whenever it comes up. Some people want the Constitution to say that they can have as many guns as they want and whatever kind they want and I just don't see that.
To my knowledge you don't have to show if you've been educated, have any knowledge of the candidates, their positions, or any other information that pertains to your vote. When I have bought a firearm I provided my driver's license and submitted to an ATF background check, every single time. I don't even have to do that when I vote.
It comes down to whether, in terms of regulation, Congress has specifically decided to set a floor, ceiling or both. In the example of pollution, if Congress passed a law saying "cars shall not emit more than X particles of whatever" that would leave the door open for states to have more stringent standards. On the other hand, if they passed a law that said something like "the national standard for emissions of X is whatever" that would be read as pre-empting all relevant state laws (the laws would be more complicated, obviously).
Basically, Congress has the power to set both the floor and the ceiling in terms of gun control, if it wants to. As this point, it's only set a floor.
Rigorous Scholarship
Simply put the US as a country has a FUCKLOAD of guns per person. We're one of the heaviest armed civilian populations in the world and among developed countries our death rates from guns is off the scales.
Nope But now you're shifting goal posts. I have to show I'm qualified to vote as defined by the constitution and U.S. Supreme Court.
And again, I can't get anyone killed if I fuck up a ballot. So sorry that there are restrictions on your right to firearms, but they're there to protect everyone else's right to not get shot.
The idea is that the guns for thugs have to start somewhere, and most criminal suppliers buy in bulk. By lowering the number of guns an individual can procure, exporting guns from Texas and Virginia would be made infeasible.
Right, the best a civilian can do against a military is to whip up a bomb in his basement and blow it up - no militia in this day and age actually puts up a stand up fight because they'd all die
In the event of like, zerg invasion, the military will draft everyone and distribute assault rifles, so there's no need for everyone to own their own. Handguns are as you say fairly useless in any militia context or for hunting, so I'm not sure why they have the same legal protections and long guns