I can't believe I'm about to say this, but I actually agreed with something Scalia said:
JUSTICE SCALIA: I don't see how there's
any, any, any contradiction between reading the second
clause as a -- as a personal guarantee and reading the
first one as assuring the existence of a militia, not
necessarily a State-managed militia because the militia
that resisted the British was not State- managed. But
why isn't it perfectly plausible, indeed reasonable, to
assume that since the framers knew that the way militias
were destroyed by tyrants in the past was not by passing
a law against militias, but by taking away the people's
weapons -- that was the way militias were destroyed.
The two clauses go together beautifully: Since we need
a militia, the right of the people to keep and bear arms
shall not be infringed.
What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.
It does. As I pointed out three pages ago, under law, all men between the ages of 17 and 45 are considered part of the militia. In order to have that militia, the members must be able to keep and bear arms.
There are three problems with your claim. First, that would extend the right to bear arms to 17 year-olds, which no one is claiming. Second, that would restrict the right to bear arms to 17-45 year old males. No guns for women, no guns for old people. Third, if every male between the ages of 17 and 45 is considered to be in the militia, then surely it cannot be a very "well-regulated" one, can it?
If that were their intent, it would have said that the right of militia members to keep and bear arms will not be infringed. The first clause is the reason; the second clause is the action. Allowing non-militia members to keep and bear arms makes it easier to maintain a well regulated militia. And no, I don't necessarily consider the unorganized militia to be terribly well regulated; most of them probably are not practiced in the use of firearms. Somehow, I don't think that removing their ability to own a firearm would make them more regulated.
As I note time and again, only a militiaman can bear arms in the sense it was written, because it was, at the time, never used outside of military context. I have also pointed out that the grammatical structure is one of Latinate origin which make the second part dependent on the first.
That last assertion of yours isn't only a straw man, it's a fucking stupid one. How hard is it to understand that we are not saying that taking the guns away from the lynch mob would make it better regulated, but that we are taking them away because they do not qualify as "well regulated?"
You're trying to cut the phrase out of the amendment by rationalizing it away as "reasoning". The Founders didn't include reasoning in any of the seven other amendments in the Bill of Rights. Why should this one be an exception?
Because that is how it is written? There is nothing in the language as it is written that would hint that it is a condition for the second clause in the amendment. Also, remember that when it was written, the militia consisted of all able bodied men, so even if you are going to take it as limiting the ownership of arms to the militia, our unorganized militia is much more in line with their use of the word than the national guard.
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
If a well-regulated militia guarantees the right to bear arms, then it should guarantee the right to bear arms with military applications: ie fully automatic rifles, not shotguns and small handguns.
Are you claiming that shotguns and handguns don't have military applications?
They have significantly less military application than full-auto rifles. I assume there's a reason we give our soldiers M-16s and not Ruger .22LRs.
The many, many soldiers whose current primary weapons are shotguns or handguns would like to disagree with you. At least on shotguns and handguns...Ruger .22LRs, not so much. But the Beretta M9 and Mossberg 590 (two that I've personally seen used) would like to say "hi."
Or, for the short and sweet response, let me simply say that we give our soldiers handguns too.
For those of you with reading comprehension problems:
"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, if it's not necessary...
Except that it's not asking if it's necessary. It's stating that it's necessary. So our constitution states that a well-regulated militia is necessary to the security of a free state, whether or not it actually is anymore. And whether or not Thanatos agrees.
As I note time and again, only a militiaman can bear arms in the sense it was written, because it was, at the time, never used outside of military context. I have also pointed out that the grammatical structure is one of Latinate origin which make the second part dependent on the first.
Was "keep" used outside of a military context? Because it says the people get to keep them as well. Like I said, I can see laws that only allow the possession of firearms with military purpose in a secured and disassembled state (except for practice, which would of course be required for the "well-regulated" part, using the antiquated definition of regulated). I could see it not protecting, for instance, concealed carry. But as far as I can tell, the second amendment states my right to own an AR-15.
You're trying to cut the phrase out of the amendment by rationalizing it away as "reasoning". The Founders didn't include reasoning in any of the seven other amendments in the Bill of Rights. Why should this one be an exception?
Because that is how it is written? There is nothing in the language as it is written that would hint that it is a condition for the second clause in the amendment.
Are you joking? It's written as a conditional statement.
Since X, Y.
X being true, Y.
Being X, Y.
Also, remember that when it was written, the militia consisted of all able bodied men, so even if you are going to take it as limiting the ownership of arms to the militia, our unorganized militia is much more in line with their use of the word than the national guard.
This is factually incorrect. The militias that fought the British were organized, volunteer units, which drilled on a regular basis. The militia did not consist of "all able bodied men."
Indeed, it could be argued that possession of weaponry would make it easier for a tyrant to get the military to turn on its own people.
And again, Saddam Hussein had a much smaller military, with much less training, against a populace that was much better armed, 80% of whom hated him, and yet somehow you think that civilians in the U.S. are going to be able to hold off the greatest military power the world has ever seen? Are you on crack?
Seriously, there are good arguments to be made for people owning guns; being able to fight off the government isn't one of them.
Ugh. I see we're getting side-tracked again. Greatest conventional military. Yes.
We've blundered through the last two unconventional wars we've fought, and have failed to catch one man in the mountains of Pakistan for the past 6 1/2 years.
This argument is silly. I'm done playing what-if. Militias are guaranteed under the constitution, like it or not. Relevant in today's society or not. Deal with it. What's up for grabs is the definition of a militia, whether it can be regulated by state or federal law, and what the second clause of the amendment has to do with militias, or whether or not it's an individual right, dependent of militias.
So....back on track.
For those of you with reading comprehension problems:
"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, if it's not necessary...
Normally I agree with you, but on this not so much.
The entire "necessary" angle will change depending on your view point. We can't conclusively say either way since we have yet to try it and see the results.
This is one debate I stand on both sides of. I can make a lot of great arguments on arming the population, I've served our nation and used a gun... but I'm still scared as hell of joe idiot taking a revolver to dinner.
waterlogged on
Democrat that will switch parties and turn red if Clinton is nominated.:P[SIGPIC][/SIGPIC]
I can't believe I'm about to say this, but I actually agreed with something Scalia said:
JUSTICE SCALIA: I don't see how there's
any, any, any contradiction between reading the second
clause as a -- as a personal guarantee and reading the
first one as assuring the existence of a militia, not
necessarily a State-managed militia because the militia
that resisted the British was not State- managed. But
why isn't it perfectly plausible, indeed reasonable, to
assume that since the framers knew that the way militias
were destroyed by tyrants in the past was not by passing
a law against militias, but by taking away the people's
weapons -- that was the way militias were destroyed.
The two clauses go together beautifully: Since we need
a militia, the right of the people to keep and bear arms
shall not be infringed.
What Justice Scalia is missing here is that his interpretation essentially removes the first clause from the law, by expanding the rule so that it no longer has meaning. The phrase is in the amendment; it must have some bearing on the application of the rule.
It does. As I pointed out three pages ago, under law, all men between the ages of 17 and 45 are considered part of the militia. In order to have that militia, the members must be able to keep and bear arms.
There are three problems with your claim. First, that would extend the right to bear arms to 17 year-olds, which no one is claiming. Second, that would restrict the right to bear arms to 17-45 year old males. No guns for women, no guns for old people. Third, if every male between the ages of 17 and 45 is considered to be in the militia, then surely it cannot be a very "well-regulated" one, can it?
If that were their intent, it would have said that the right of militia members to keep and bear arms will not be infringed. The first clause is the reason; the second clause is the action. Allowing non-militia members to keep and bear arms makes it easier to maintain a well regulated militia. And no, I don't necessarily consider the unorganized militia to be terribly well regulated; most of them probably are not practiced in the use of firearms. Somehow, I don't think that removing their ability to own a firearm would make them more regulated.
As I note time and again, only a militiaman can bear arms in the sense it was written, because it was, at the time, never used outside of military context. I have also pointed out that the grammatical structure is one of Latinate origin which make the second part dependent on the first.
That last assertion of yours isn't only a straw man, it's a fucking stupid one. How hard is it to understand that we are not saying that taking the guns away from the lynch mob would make it better regulated, but that we are taking them away because they do not qualify as "well regulated?"
However, the amendment does not only deal with the right to bear arms, but also the right to keep them. That basically leaves room for the government to restrict their use outside of a military context, but not to restrict the ability of the people to possess and maintain them.
Also, the first clause is not conditional on the second clause. The two clauses were originally reversed in order. The two statements were separate declartions that the people could keep and bear arms, and that a militia (as opposed to a standing army) was the best defence of a free state. That was simplified into a statement that because a militia was the best defense, the right of the people yadda yadda... (and before Than chimes in with saying that having a standing army means we don't need a militia, it is more likely that they would have viewed a standing army as even more of a reason to have a militia). As I have said before, the first clause is the reason for the second, but it does not limit it.
Regarding a well regulated militia. A regulated militia means that it is trained in the use of firearms; it can be called up and it will be able to perform as a militia; it does not mean that it is run according to government regulations. It is not a strawman to say that restricting the right to keep arms makes it less likely that a militia will be well regulated. The more familiar that members of the militia are with firearms, the more regulated the militia will be.
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
For those of you with reading comprehension problems:
"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, if it's not necessary...
Except that it's not asking if it's necessary. It's stating that it's necessary. So our constitution states that a well-regulated militia is necessary to the security of a free state, whether or not it actually is anymore. And whether or not Thanatos agrees.
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
What kind of close-minded, fundamentalist line of thinking is this? Times have changed. Look around you for a second. How can you make any believable, rational claim that a well-regulated militia is a necessity for the nation's security?
Giving everyone the right to bear arms does not make them a member of the militia, and it certainly does not make such a militia well-organized. Maybe you decide to form a well-organized militia and then argue that the members you recruit have the right to bear arms, then fine, I guess you can use the 2nd Amendment to support it.
Regarding a well regulated militia. A regulated militia means that it is trained in the use of firearms; it can be called up and it will be able to perform as a militia; it does not mean that it is run according to government regulations. It is not a strawman to say that restricting the right to keep arms makes it less likely that a militia will be well regulated. The more familiar that members of the militia are with firearms, the more regulated the militia will be.
This is totally indefensible. Nothing in the second amendment limits regulations on militias, either by state or federal governments. A well-regulated militia necessarily implies that there has to be a register of who is included, what weapons they have, etc., etc.
That implies government permission to have weapons, and on the type of weapons available for storage in the home. Moreover, nothing about that restricts the ability of states to control their own militia. Again, the Bill of Rights is a list of limitations on federal power that were only later and only in part expanded to the states. The second amendment has never been incorporated (and doesn't seem to fit the usual pattern for incorporation).
As far as the rest of what I cut out of this quote, you keep coming back to this "the first clause is the reason for the second" argument, which just doesn't hold water. You can't interpret away parts of the statute. It's there for a reason.
You're trying to cut the phrase out of the amendment by rationalizing it away as "reasoning". The Founders didn't include reasoning in any of the seven other amendments in the Bill of Rights. Why should this one be an exception?
Because that is how it is written? There is nothing in the language as it is written that would hint that it is a condition for the second clause in the amendment.
Are you joking? It's written as a conditional statement.
Since X, Y.
X being true, Y.
Being X, Y.
Also, remember that when it was written, the militia consisted of all able bodied men, so even if you are going to take it as limiting the ownership of arms to the militia, our unorganized militia is much more in line with their use of the word than the national guard.
This is factually incorrect. The militias that fought the British were organized, volunteer units, which drilled on a regular basis. The militia did not consist of "all able bodied men."
No, you're thinking of the Continental Army, which was formed from the militia. The militia did drill during the revolution (there was a war going on, after all), but they primarily dealt with local defense. Also, saying that the militia consisted of all able bodied men does not mean that they were all under arms at the same time. When they set the composition of the militia into law in 1792, it consisted of all able-bodied men between 18 and 45, none of whom could be required to serve for more than 3 months out of the year (this does not mean they were required to serve 3 months out of the year, it only set a cap if the militias were called up).
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
You're trying to cut the phrase out of the amendment by rationalizing it away as "reasoning". The Founders didn't include reasoning in any of the seven other amendments in the Bill of Rights. Why should this one be an exception?
Because that is how it is written? There is nothing in the language as it is written that would hint that it is a condition for the second clause in the amendment.
Are you joking? It's written as a conditional statement.
Since X, Y.
X being true, Y.
Being X, Y.
Also, remember that when it was written, the militia consisted of all able bodied men, so even if you are going to take it as limiting the ownership of arms to the militia, our unorganized militia is much more in line with their use of the word than the national guard.
This is factually incorrect. The militias that fought the British were organized, volunteer units, which drilled on a regular basis. The militia did not consist of "all able bodied men."
No, you're thinking of the Continental Army, which was formed from the militia. The militia did drill during the revolution (there was a war going on, after all), but they primarily dealt with local defense. Also, saying that the militia consisted of all able bodied men does not mean that they were all under arms at the same time. When they set the composition of the militia into law in 1792, it consisted of all able-bodied men between 18 and 45, none of whom could be required to serve for more than 3 months out of the year (this does not mean they were required to serve 3 months out of the year, it only set a cap if the militias were called up).
Here's an interesting quote from the Articles of Confederation:
Every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
Note the use of the words "well-regulated" and "disciplined". That's the kind of militia we're talking about. A state militia, well organized and well equipped. The same phraseology was used in the Constitution, just twelve years later.
"All able-bodied men" is not what we're talking about. It'd be a gross distortion of history to claim that.
Also, a somewhat tangential point I found interesting: your claim started from a universal right to bear arms based on militia service. Then it was narrowed to 17-45 year old males (members of this "unorganized militia"). Now it's down to 18-45 year old white men. You left that out in describing the 1792 Militia Act.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.
Regarding a well regulated militia. A regulated militia means that it is trained in the use of firearms; it can be called up and it will be able to perform as a militia; it does not mean that it is run according to government regulations. It is not a strawman to say that restricting the right to keep arms makes it less likely that a militia will be well regulated. The more familiar that members of the militia are with firearms, the more regulated the militia will be.
This is totally indefensible. Nothing in the second amendment limits regulations on militias, either by state or federal governments. A well-regulated militia necessarily implies that there has to be a register of who is included, what weapons they have, etc., etc.
That implies government permission to have weapons, and on the type of weapons available for storage in the home. Moreover, nothing about that restricts the ability of states to control their own militia. Again, the Bill of Rights is a list of limitations on federal power that were only later and only in part expanded to the states. The second amendment has never been incorporated (and doesn't seem to fit the usual pattern for incorporation).
As far as the rest of what I cut out of this quote, you keep coming back to this "the first clause is the reason for the second" argument, which just doesn't hold water. You can't interpret away parts of the statute. It's there for a reason.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
So is the basic conclusion here that the militia we're talking about is essentially what the National Guard does today, only no one wants to join that because they send you to Iraq.
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
Not as fact, but as law.
What kind of close-minded, fundamentalist line of thinking is this? Times have changed. Look around you for a second. How can you make any believable, rational claim that a well-regulated militia is a necessity for the nation's security?
The frame of mind that the Constitution is the only thing keeping us from mob rule of 51% of the population. Which, I think, a majority here would agree is a "bad thing." If the militia is honestly not necessary anymore (and I'd likely agree on that) then I say it's time to amend the Constitution to do away with that clause, or with the entire second amendment. Same way we amended the Constitution to allow for federal income taxes, direct election of Senators, and a host of other changes major and minor that have been necessary over the years.
Yes, this is not easy to do. There's a reason for that. Because if you can't get 2/3 of Congress and 2/3 of the states to agree on a change to the fundamental document governing this nation, then it probably shouldn't be changed.
But what we don't do is simply state that some section or another is "outdated" and thus doesn't apply anymore. Because while you and I obviously will agree that, say, the right against unlawful searches and seizures is necessary to a free state (regardless of whether we agree on private gun ownership), if we start deciding parts of the Constitution are "outdated" without due process then suddenly some folks might want to argue that with our current War on Terror (tm) perhaps maybe the fourth amendment is outdated as well.
Who knows, they might even get 51% of the vote.
No part of the Constitution comes with an expiration date. Even the old "three fifths" had to actually be amended out of it, regardless of how despicable that particular clause was. Because we are a nation of laws and not men, and until changed according to the procedure laid out the second amendment is still law.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
So is the basic conclusion here that the militia we're talking about is essentially what the National Guard does today, only no one wants to join that because they send you to Iraq.
Actually, no. Because the National Guard of today is largely federally funded and subject to federalization at any time, so essentially it's a federal force that's "on loan" to the states when they're not doing federal shit with it. The idea of the militia was that it was preferable to keep some military forces in local (at the state level) hands in order to somewhat limit the power of the federal government over the states, while still providing for the common defense.
The National Guard in no way fills this role anymore.
So is the basic conclusion here that the militia we're talking about is essentially what the National Guard does today, only no one wants to join that because they send you to Iraq.
Actually, no. Because the National Guard of today is largely federally funded and subject to federalization at any time, so essentially it's a federal force that's "on loan" to the states when they're not doing federal shit with it. The idea of the militia was that it was preferable to keep some military forces in local (at the state level) hands in order to somewhat limit the power of the federal government over the states, while still providing for the common defense.
The National Guard in no way fills this role anymore.
That actually makes more sense. I suppose we're thinking more "the Chicago militia" or something - but I can't imagine anything like that would ever be practically funded on a local level anymore.
So is the basic conclusion here that the militia we're talking about is essentially what the National Guard does today, only no one wants to join that because they send you to Iraq.
Actually, no. Because the National Guard of today is largely federally funded and subject to federalization at any time, so essentially it's a federal force that's "on loan" to the states when they're not doing federal shit with it. The idea of the militia was that it was preferable to keep some military forces in local (at the state level) hands in order to somewhat limit the power of the federal government over the states, while still providing for the common defense.
The National Guard in no way fills this role anymore.
Solution: states create new militias under state control. Members of said militias have the right to "keep and bear arms." States which do not wish to create such militias don't have to. Heck, they could even ban guns within their borders outright.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
The Constitution does have sections that state principles and purpose.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
You could take out the middle part of that sentence, because it's not operative law, it's a statement of policy and purpose. The only part that's operative is "We the People of the United States do ordain and establish this Constitution."
Saying that the first part of the Second Amendment isn't the operative part of the law is not "interpreting it out of existence," necessarily. Even if it is a weak argument :P
EDIT: I hope we can all agree that the Second Amendment is particularly strange because the rest of the Constitution is written in a fairly straightforward manner, while this Amendment is infuriatingly difficult to parse in comparison.
I'd first like to thank you for taking the time to read and reply to reply to my statement in a rational and civilized manner. It's appreciated, and I would like to make a short commentary, likewise, on what you wrote, with all respect:
I would dispute very strongly your categorization of the views of the Founding Fathers on the subject of the Whiskey Rebellion and of armed uprising against the national US government. Jefferson might have supported it, but the majority of the Founders did not.
Whereas you may be right about the Founding Fathers perhaps not looking too favorably upon the Whiskey Rebellion, you may be right. I'm willing to cede that point, it was my mistake. However, I would dispute the point that the Founding Fathers necessarily saw that sedition against the United States Government was illegal, whilest sedition from the Royal British Government was justified. Rather, I would believe the line lies with the state of a free country versus tyranny. Take this quote from Governor Samuel Adams, in the aftermath of Shay's Rebellion, as an example:
"In monarchy the crime of treason may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of republic ought to suffer death."
Whether or not shared by the majority of the founding fathers, it is at least the case that there was significant influence from political philosophers such as Rousseau (Le Contrat Social) and Locke (Two Treatises of Government), who established ideas of a Government responsible to defend it's subjects' liberty, as well as the duty of the citizen-subjects to overthrow the government should it overstep its bounds and to, metaphorically, "void the [social] contract."
Before the accusation of off-topic comes, I do have a point. I point the reader back towards the second amendment for a moment:
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.
Specifically, the bolded section, which is my addition.
Now, we might se this clause as a section defining the ability to possess arms as a specific usage to defend the Government of the United States; i.e., a "free State" refers to a sovereign country. However, given the context of the American Revolution, and given the context of the strongly anti-central sentiments of those anti-Federalists who forced through the Bill of Rights as an addition to the Constitution, I would argue that "a free State" refers not to a sovereign nation, but to a governmental body composed of free members. That is, the defense of the state was not only against potential outside invaders, but also the defense against the tyranny which might corrupt the state.
In such a case, the minor tyrannies of an excise tax on whiskey might not be considered qualifications for a just overthrow of the government. This I'm willing to accept, and thus why I'm willing to accept the condemnation of the Whiskey Rebellion as a whole - even though the final judgement of the government amounted in minor fines.
In fact, the whole reason that the Constitution was created was to strengthen the federal government after the Whiskey Rebellion demonstrated the ineffectiveness of the national government under the Articles of Confederation. Hamilton, Washington, Madison, John Adams, and most of the others who were actually present at the drafting of the Constitution (unlike Thomas Jefferson, who was in France at the time) were strongly supportive of a strong federal government that could and would put down armed revolt.
I believe we were both mistaken at first on your first point. The Whiskey Rebellion occured after the passage and adoption of the Constitution, and was the first exercise of strict Federal military power in keepin an organized government. I believe it was Shay's Rebellion which outlined the weaknesses of the Confederate Government. I believe I made the same mistake on my first post.
However, you are on one hand right that the Constitution was created to strengthen the Federal government, and it is written with that purpose, and it achieves its objective. However, I would like the reader to remember the significant resistance to the Constitution as it was first produced to vote, Federalists against Anti-Federalists. Indeed, it was this resistance to the Constitution that forced the creators of the Constitution to create the Bill of Rights, in which this Second Amendment was included.
Just as the express purpose of the Constitution is to "create a more perfect union," i.e., a stronger central government, the purpose of the Bill of Rights is to protect the rights of the people and ensure that they were not violated by this central government, which many in the colonies had come to fear after the Revolution. I have a question: if the Consitution dealt with the powers of the government, and the Bill of Rights dealt with the rights of the people and the restrictions of said Government, why is it that the Second Amendment to the Constitution would not in fact grant any right to the people, but instead grant a right to an organ of town or civil government with the arbitrary appelation of "well-regulated"? How is that defined, even?
Finally, your interpretation of the Second Amendment again falls into the trap of rendering the initial clause meaningless. It's there, in the text. It must have some implication on the administration of the rule. If the amendment was supposed to confer a personal, guaranteed right to bear arms, the first clause is unnecessary and redundant. So we can therefore conclude that the first clause is a necessary precondition to the second. If you're not in a militia, you don't have the right to bear arms.
Well, first, I fail to see how it is necessarily a trap. You've been unclear as to how it's necessarily a trap, except that it runs contrary to your interperetation of the section. And I never suggested that the first clause was meaningless.
Rather, my contention is that the first clause is the ideological and rational basis for introducing such a perminent and thorough right across the nation, and the justification for its inclusion. It certainly carries implication, I'm not arguing with that - but I argue that the implication is the protection of a free government and citizenry is the domain of the citizen, who must be armed in order that, should the need for a militia come to pass, he would be able to so commit his services. This would run consistant with the concept of "Right of Rebellion" outlined in the political philosophies that many of the Founding Fathers and authors of the Constitution and her Amendments were extraordinarily well-read in, and cited as far back as the Declaration of Independence.
The first and second sections indeed have consequence for the rest of the amendment, which I've just outlined and which I have spoken about in my previous post.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
The Constitution does have sections that state principles and purpose.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
You could take out the middle part of that sentence, because it's not operative law, it's a statement of policy and purpose. The only part that's operative is "We the People of the United States do ordain and establish this Constitution."
Saying that the first part of the Second Amendment isn't the operative part of the law is not "interpreting it out of existence," necessarily.
Several sections of that sentence are meaningful as to the nature of the Constitution. Consider that the "more perfect Union" section is part of the legal justification for refusing the right of the South to secede. These sections were also important in establishing general guidelines for the limits and goals of the federal government, much like the militia clause establishes the limits and goals of the right to bear arms.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
The Constitution does have sections that state principles and purpose.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
You could take out the middle part of that sentence, because it's not operative law, it's a statement of policy and purpose. The only part that's operative is "We the People of the United States do ordain and establish this Constitution."
Saying that the first part of the Second Amendment isn't the operative part of the law is not "interpreting it out of existence," necessarily.
Several sections of that sentence are meaningful as to the nature of the Constitution. Consider that the "more perfect Union" section is part of the legal justification for refusing the right of the South to secede. These sections were also important in establishing general guidelines for the limits and goals of the federal government, much like the militia clause establishes the limits and goals of the right to bear arms.
Sorry, but I don't buy that interpretation of the preamble. It's a statutory statement of background for the operative laws that will be forthcoming in the statute.
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
Not as fact, but as law.
That... that doesn't make any sense. Healthy democratic societies operate by enacting laws that are based on facts, rather than empty claims. Just because the Constitution says that a well-regulated militia is necessary for the security of a free state does not make it so.
In this case we are talking about the phrase in italics above as being the preamble for the amendment in question. When the preamble is factually wrong (or at the very least highly questionable), the integrity of the amendment itself is jeopardized.
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
Not as fact, but as law.
That... that doesn't make any sense. Healthy democratic societies operate by enacting laws that are based on facts, rather than empty claims. Just because the Constitution says that a well-regulated militia is necessary for the security of a free state does not make it so.
In this case we are talking about the phrase in italics above as being the preamble for the amendment in question. When the preamble is factually wrong (or at the very least highly questionable), the integrity of the amendment itself is jeopardized.
You've just put forward an excellent argument in favor of an amendment doing away with it. Until that happens, however, it is still law. Which means that until you flesh that argument out and get 2/3 of Congress and 2/3 of the states to agree, the second clause still grants a right under the premise that the first clause puts forward as a given. Because, you know, no expiration dates. The same reason that the three-fifths compromise actually had to be amended out as well.
You're trying to cut the phrase out of the amendment by rationalizing it away as "reasoning". The Founders didn't include reasoning in any of the seven other amendments in the Bill of Rights. Why should this one be an exception?
Because that is how it is written? There is nothing in the language as it is written that would hint that it is a condition for the second clause in the amendment.
Are you joking? It's written as a conditional statement.
Since X, Y.
X being true, Y.
Being X, Y.
Also, remember that when it was written, the militia consisted of all able bodied men, so even if you are going to take it as limiting the ownership of arms to the militia, our unorganized militia is much more in line with their use of the word than the national guard.
This is factually incorrect. The militias that fought the British were organized, volunteer units, which drilled on a regular basis. The militia did not consist of "all able bodied men."
No, you're thinking of the Continental Army, which was formed from the militia. The militia did drill during the revolution (there was a war going on, after all), but they primarily dealt with local defense. Also, saying that the militia consisted of all able bodied men does not mean that they were all under arms at the same time. When they set the composition of the militia into law in 1792, it consisted of all able-bodied men between 18 and 45, none of whom could be required to serve for more than 3 months out of the year (this does not mean they were required to serve 3 months out of the year, it only set a cap if the militias were called up).
Here's an interesting quote from the Articles of Confederation:
Every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
Note the use of the words "well-regulated" and "disciplined". That's the kind of militia we're talking about. A state militia, well organized and well equipped. The same phraseology was used in the Constitution, just twelve years later.
"All able-bodied men" is not what we're talking about. It'd be a gross distortion of history to claim that.
Also, a somewhat tangential point I found interesting: your claim started from a universal right to bear arms based on militia service. Then it was narrowed to 17-45 year old males (members of this "unorganized militia"). Now it's down to 18-45 year old white men. You left that out in describing the 1792 Militia Act.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.
Bolding mine.
Great job of taking things out of context. Those were two separate points addressing two separate arguments. The mention of the 1903 militia definition was in response the the argument that the National Guard constitutes our modern militia; the National Guard was organized by the same act that defined the militia as 17-45. My mention of the 1792 act was to show that the view of the militia was not all that different (yes it was restricted to white males; so was voting, government office and, at least as far a race was concerned, citizenship). The universal right to bear arms is based on the need to maintain a militia. The militia consists of all male citizens between 17 and 45, expanded from the 1792 definition. While this limits militia service, it does not limit the ownership of guns; those out of the militia, particularly former members, are probably quite beneficial to maintaining a regulated militia.
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
Not as fact, but as law.
That... that doesn't make any sense. Healthy democratic societies operate by enacting laws that are based on facts, rather than empty claims. Just because the Constitution says that a well-regulated militia is necessary for the security of a free state does not make it so.
In this case we are talking about the phrase in italics above as being the preamble for the amendment in question. When the preamble is factually wrong (or at the very least highly questionable), the integrity of the amendment itself is jeopardized.
You've just put forward an excellent argument in favor of an amendment doing away with it. Until that happens, however, it is still law. Which means that until you flesh that argument out and get 2/3 of Congress and 2/3 of the states to agree, the second clause still grants a right under the premise that the first clause puts forward as a given. Because, you know, no expiration dates. The same reason that the three-fifths compromise actually had to be amended out as well.
Which is all well and good, but Thanatos' original point was re. constitutional interpretation, not the legal force of the clause itself.
I'd first like to thank you for taking the time to read and reply to reply to my statement in a rational and civilized manner. It's appreciated, and I would like to make a short commentary, likewise, on what you wrote, with all respect:
I would dispute very strongly your categorization of the views of the Founding Fathers on the subject of the Whiskey Rebellion and of armed uprising against the national US government. Jefferson might have supported it, but the majority of the Founders did not.
Whereas you may be right about the Founding Fathers perhaps not looking too favorably upon the Whiskey Rebellion, you may be right. I'm willing to cede that point, it was my mistake. However, I would dispute the point that the Founding Fathers necessarily saw that sedition against the United States Government was illegal, whilest sedition from the Royal British Government was justified. Rather, I would believe the line lies with the state of a free country versus tyranny. Take this quote from Governor Samuel Adams, in the aftermath of Shay's Rebellion, as an example:
"In monarchy the crime of treason may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of republic ought to suffer death."
Whether or not shared by the majority of the founding fathers, it is at least the case that there was significant influence from political philosophers such as Rousseau (Le Contrat Social) and Locke (Two Treatises of Government), who established ideas of a Government responsible to defend it's subjects' liberty, as well as the duty of the citizen-subjects to overthrow the government should it overstep its bounds and to, metaphorically, "void the [social] contract."
Before the accusation of off-topic comes, I do have a point. I point the reader back towards the second amendment for a moment:
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.
Specifically, the bolded section, which is my addition.
Now, we might se this clause as a section defining the ability to possess arms as a specific usage to defend the Government of the United States; i.e., a "free State" refers to a sovereign country. However, given the context of the American Revolution, and given the context of the strongly anti-central sentiments of those anti-Federalists who forced through the Bill of Rights as an addition to the Constitution, I would argue that "a free State" refers not to a sovereign nation, but to a governmental body composed of free members. That is, the defense of the state was not only against potential outside invaders, but also the defense against the tyranny which might corrupt the state.
In such a case, the minor tyrannies of an excise tax on whiskey might not be considered qualifications for a just overthrow of the government. This I'm willing to accept, and thus why I'm willing to accept the condemnation of the Whiskey Rebellion as a whole - even though the final judgement of the government amounted in minor fines.
Another alternative (and I believe the correct one), is that "State" means there, as it does elsewhere in the Constitution, Virginia or New York or Maryland, as opposed to the federal government. The restriction is on federal power to deny states the right to form their own militias and resist federal tyranny. It's a state's right, not an individual's.
In fact, the whole reason that the Constitution was created was to strengthen the federal government after the Whiskey Rebellion demonstrated the ineffectiveness of the national government under the Articles of Confederation. Hamilton, Washington, Madison, John Adams, and most of the others who were actually present at the drafting of the Constitution (unlike Thomas Jefferson, who was in France at the time) were strongly supportive of a strong federal government that could and would put down armed revolt.
I believe we were both mistaken at first on your first point. The Whiskey Rebellion occured after the passage and adoption of the Constitution, and was the first exercise of strict Federal military power in keepin an organized government. I believe it was Shay's Rebellion which outlined the weaknesses of the Confederate Government. I believe I made the same mistake on my first post.
You're right, it was Shay's Rebellion. My mistake.
However, you are on one hand right that the Constitution was created to strengthen the Federal government, and it is written with that purpose, and it achieves its objective. However, I would like the reader to remember the significant resistance to the Constitution as it was first produced to vote, Federalists against Anti-Federalists. Indeed, it was this resistance to the Constitution that forced the creators of the Constitution to create the Bill of Rights, in which this Second Amendment was included.
Just as the express purpose of the Constitution is to "create a more perfect union," i.e., a stronger central government, the purpose of the Bill of Rights is to protect the rights of the people and ensure that they were not violated by this central government, which many in the colonies had come to fear after the Revolution. I have a question: if the Consitution dealt with the powers of the government, and the Bill of Rights dealt with the rights of the people and the restrictions of said Government, why is it that the Second Amendment to the Constitution would not in fact grant any right to the people, but instead grant a right to an organ of town or civil government with the arbitrary appelation of "well-regulated"? How is that defined, even?
Part of anti-federalist movement was concerned with the balance of power between the national and state governments. Thomas Jefferson and other anti-federalists were just as concerned with the rights of states as they were with the rights of individuals. That, I would suggest, is the reason that the Second Amendment fits into the Bill of Rights - as a restriction on federal power. The tenth amendment also fits into this context.
Consider also that the Bill of Rights didn't apply to the states until the passage of the Fourteenth Amendment (and even then, wasn't enforced as such until the 1960s). This reinforces even more that the concern of the anti-federalists (note the name) was with a tyrannical national government, more than with the rights of individuals.
Finally, your interpretation of the Second Amendment again falls into the trap of rendering the initial clause meaningless. It's there, in the text. It must have some implication on the administration of the rule. If the amendment was supposed to confer a personal, guaranteed right to bear arms, the first clause is unnecessary and redundant. So we can therefore conclude that the first clause is a necessary precondition to the second. If you're not in a militia, you don't have the right to bear arms.
Well, first, I fail to see how it is necessarily a trap. You've been unclear as to how it's necessarily a trap, except that it runs contrary to your interperetation of the section. And I never suggested that the first clause was meaningless.
It's a trap in the sense that it's a clever way of essentially writing the first clause out of existence. For all practical, legal purposes, it's as if the first clause doesn't even exist. When we interpret the law, we ought to try to interpret it in such a way that every word or phrase has some concrete implication on how the law is applied. That's the principle I would suggest that is being violated by that interpretation.
Rather, my contention is that the first clause is the ideological and rational basis for introducing such a perminent and thorough right across the nation, and the justification for its inclusion. It certainly carries implication, I'm not arguing with that - but I argue that the implication is the protection of a free government and citizenry is the domain of the citizen, who must be armed in order that, should the need for a militia come to pass, he would be able to so commit his services. This would run consistant with the concept of "Right of Rebellion" outlined in the political philosophies that many of the Founding Fathers and authors of the Constitution and her Amendments were extraordinarily well-read in, and cited as far back as the Declaration of Independence.
The first and second sections indeed have consequence for the rest of the amendment, which I've just outlined and which I have spoken about in my previous post.
The "Right of Rebellion" is an interesting idea, but I would suggest that we've since repudiated it, for better or for worse. The Civil War removed the possibility of even whole states rebelling against the national government, much less non-state-affiliated militias. If we reject that right, the whole rest of the argument seems to have problems, since it's predicated on that right.
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
Not as fact, but as law.
That... that doesn't make any sense. Healthy democratic societies operate by enacting laws that are based on facts, rather than empty claims. Just because the Constitution says that a well-regulated militia is necessary for the security of a free state does not make it so.
In this case we are talking about the phrase in italics above as being the preamble for the amendment in question. When the preamble is factually wrong (or at the very least highly questionable), the integrity of the amendment itself is jeopardized.
You've just put forward an excellent argument in favor of an amendment doing away with it. Until that happens, however, it is still law. Which means that until you flesh that argument out and get 2/3 of Congress and 2/3 of the states to agree, the second clause still grants a right under the premise that the first clause puts forward as a given. Because, you know, no expiration dates. The same reason that the three-fifths compromise actually had to be amended out as well.
So... you're arguing that until 2/3 or Congress and 2/3 of Senate gets their collective heads out of their collective asses and does away with the amendment, you're going follow it blindly simply because, uh, it's the law?
Great job of taking things out of context. Those were two separate points addressing two separate arguments. The mention of the 1903 militia definition was in response the the argument that the National Guard constitutes our modern militia; the National Guard was organized by the same act that defined the militia as 17-45. My mention of the 1792 act was to show that the view of the militia was not all that different (yes it was restricted to white males; so was voting, government office and, at least as far a race was concerned, citizenship). The universal right to bear arms is based on the need to maintain a militia. The militia consists of all male citizens between 17 and 45, expanded from the 1792 definition. While this limits militia service, it does not limit the ownership of guns; those out of the militia, particularly former members, are probably quite beneficial to maintaining a regulated militia.
But it's not out of context. Your whole argument stems from a strict, textualist interpretation of the amendment. If you accept textualism there, without allowing for substantive changes resulting from changing values in the population, you have to acknowledge the textual argument elsewhere, including with regard to the 1792 Militia Act.
Secondly, if the universal right to bear arms is based on the need to maintain a militia, then banning arms for those outside the militia doesn't necessarily infringe upon that right. A similar argument governs in the case of free speech. Commercial speech (advertising and such) is not protected because the purpose of the First Amendment is to protect political speech, despite the broad phrasing of the right.
Therefore, the question of precisely who is a member of a "well-regulated militia" is an important one. While I would challenge the argument that all 17-45 year old white males are members, if we simply accept that argument, then it would appear that nonwhites do not have that right.
So... you're arguing that until 2/3 or Congress and 2/3 of Senate gets their collective heads out of their collective asses and does away with the amendment, you're going follow it blindly simply because, uh, it's the law?
Sounds a little bone-headed to me.
As opposed to the alternative, where 1/2 (plus one) of the two combined along with a sympathetic president can decide we no longer need the right against unlawful searches and seizures because "the world changed after 9/11?" Or hell, half (plus one) of my local city council, because drugs are ruining our town? Yeah, I think if the second amendment is the most flawed part of the Constitution in its current incarnation (and, for the most part, I'd say that's a fair assessment) we're doing alright, and it's probably best to stick to the proper legal remedies rather than just deciding "man, fuck that Constitution bullshit."
Yeah, sending it to the highest court in the land to interpret is following it blindly.
Well yeah, that's an option as well. Doesn't sound like they'll fall on ege02's side, though, which means that yes we'll need to follow it (though not blindly) until 2/3 of the above get their head out of their collective asses (assuming, of course, you think it needs to go in the first place...I don't).
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
It's not interpereting it out of existence to say that a statement of principle is exactly that. As I said, look at previous revisions of the amendment. Even better, look at some of the versions proposed by the states. Here are two relevant excerpts.
That the people have a right to keep and bear arms; 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 are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; that the Militia should not be subject to Martial Law, except in time of War Rebellion or Insurrection. That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the Civil Power.
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
Yeah, sending it to the highest court in the land to interpret is following it blindly.
Well, no, I'm talking about people who are arguing that the 2nd amendment gives individuals the right to bear arms despite being aware of the fact that the amendment is not factually accurate.
Yeah, sending it to the highest court in the land to interpret is following it blindly.
Well, no, I'm talking about people who are arguing that the 2nd amendment gives individuals the right to bear arms despite being aware of the fact that the amendment is not factually accurate.
Well, I don't honestly agree that it's factually inaccurate...and you've certainly not shown this conclusively (nor has anybody else). I'm merely arguing that even if the first clause is no longer accurate, the law still stands until struck down; and there's a clear method to do so. I think until the necessary supermajorities can agree that it's no longer accurate, perhaps we shouldn't go scuttling it.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
It's not interpereting it out of existence to say that a statement of principle is exactly that. As I said, look at previous revisions of the amendment. Even better, look at some of the versions proposed by the states. Here are two relevant excerpts.
That the people have a right to keep and bear arms; 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 are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; that the Militia should not be subject to Martial Law, except in time of War Rebellion or Insurrection. That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the Civil Power.
The phrasing of both of those drafts is substantively different from what was, in the end, agreed upon. In the final phrasing, the second clause is clearly conditioned upon the first.
Yeah, sending it to the highest court in the land to interpret is following it blindly.
Well, no, I'm talking about people who are arguing that the 2nd amendment gives individuals the right to bear arms despite being aware of the fact that the amendment is not factually accurate.
Well, I don't honestly agree that it's factually inaccurate...and you've certainly not shown this conclusively (nor has anybody else). I'm merely arguing that even if the first clause is no longer accurate, the law still stands until struck down; and there's a clear method to do so. I think until the necessary supermajorities can agree that it's no longer accurate, perhaps we shouldn't go scuttling it.
True, it is not that "a well-regulated militia is necessary for the security of a free state" is factually inaccurate.
After all, opinions - which is what this thing is: the opinion of whoever wrote it - can't be right or wrong.
Great job of taking things out of context. Those were two separate points addressing two separate arguments. The mention of the 1903 militia definition was in response the the argument that the National Guard constitutes our modern militia; the National Guard was organized by the same act that defined the militia as 17-45. My mention of the 1792 act was to show that the view of the militia was not all that different (yes it was restricted to white males; so was voting, government office and, at least as far a race was concerned, citizenship). The universal right to bear arms is based on the need to maintain a militia. The militia consists of all male citizens between 17 and 45, expanded from the 1792 definition. While this limits militia service, it does not limit the ownership of guns; those out of the militia, particularly former members, are probably quite beneficial to maintaining a regulated militia.
But it's not out of context. Your whole argument stems from a strict, textualist interpretation of the amendment. If you accept textualism there, without allowing for substantive changes resulting from changing values in the population, you have to acknowledge the textual argument elsewhere, including with regard to the 1792 Militia Act.
Secondly, if the universal right to bear arms is based on the need to maintain a militia, then banning arms for those outside the militia doesn't necessarily infringe upon that right. A similar argument governs in the case of free speech. Commercial speech (advertising and such) is not protected because the purpose of the First Amendment is to protect political speech, despite the broad phrasing of the right.
Therefore, the question of precisely who is a member of a "well-regulated militia" is an important one. While I would challenge the argument that all 17-45 year old white males are members, if we simply accept that argument, then it would appear that nonwhites do not have that right.
As with voting, enrollment in the militia has been expanded since it was first drafted into law. By the laws passed in 1903, the militia includes all race, hence even if you take the strict militia stance, non-whites do have that right. I have said several times, the militia is the reason, but it is not the limiting factor.
Look at it this way:
A requires B
C includes B
Since we need A, we will do C.
In effect, they were granting broader rights than were required for the stated reason. Maybe they thought it was better to have broader rights.
Knuckle Dragger on
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
Posts
As I note time and again, only a militiaman can bear arms in the sense it was written, because it was, at the time, never used outside of military context. I have also pointed out that the grammatical structure is one of Latinate origin which make the second part dependent on the first.
That last assertion of yours isn't only a straw man, it's a fucking stupid one. How hard is it to understand that we are not saying that taking the guns away from the lynch mob would make it better regulated, but that we are taking them away because they do not qualify as "well regulated?"
Because that is how it is written? There is nothing in the language as it is written that would hint that it is a condition for the second clause in the amendment. Also, remember that when it was written, the militia consisted of all able bodied men, so even if you are going to take it as limiting the ownership of arms to the militia, our unorganized militia is much more in line with their use of the word than the national guard.
- John Stuart Mill
Yup. And the constitution says "given that a militia is necessary to the existance of a free state..."
When that given no longer applies, the rest of it doesn't, either.
The many, many soldiers whose current primary weapons are shotguns or handguns would like to disagree with you. At least on shotguns and handguns...Ruger .22LRs, not so much. But the Beretta M9 and Mossberg 590 (two that I've personally seen used) would like to say "hi."
Or, for the short and sweet response, let me simply say that we give our soldiers handguns too.
Except that it's not asking if it's necessary. It's stating that it's necessary. So our constitution states that a well-regulated militia is necessary to the security of a free state, whether or not it actually is anymore. And whether or not Thanatos agrees.
Was "keep" used outside of a military context? Because it says the people get to keep them as well. Like I said, I can see laws that only allow the possession of firearms with military purpose in a secured and disassembled state (except for practice, which would of course be required for the "well-regulated" part, using the antiquated definition of regulated). I could see it not protecting, for instance, concealed carry. But as far as I can tell, the second amendment states my right to own an AR-15.
Are you joking? It's written as a conditional statement.
Since X, Y.
X being true, Y.
Being X, Y.
This is factually incorrect. The militias that fought the British were organized, volunteer units, which drilled on a regular basis. The militia did not consist of "all able bodied men."
Normally I agree with you, but on this not so much.
The entire "necessary" angle will change depending on your view point. We can't conclusively say either way since we have yet to try it and see the results.
This is one debate I stand on both sides of. I can make a lot of great arguments on arming the population, I've served our nation and used a gun... but I'm still scared as hell of joe idiot taking a revolver to dinner.
Also, the first clause is not conditional on the second clause. The two clauses were originally reversed in order. The two statements were separate declartions that the people could keep and bear arms, and that a militia (as opposed to a standing army) was the best defence of a free state. That was simplified into a statement that because a militia was the best defense, the right of the people yadda yadda... (and before Than chimes in with saying that having a standing army means we don't need a militia, it is more likely that they would have viewed a standing army as even more of a reason to have a militia). As I have said before, the first clause is the reason for the second, but it does not limit it.
Regarding a well regulated militia. A regulated militia means that it is trained in the use of firearms; it can be called up and it will be able to perform as a militia; it does not mean that it is run according to government regulations. It is not a strawman to say that restricting the right to keep arms makes it less likely that a militia will be well regulated. The more familiar that members of the militia are with firearms, the more regulated the militia will be.
- John Stuart Mill
Wait, so we take the word of the Constitution on this?
A document that was written what... 200 years ago? states that a well-regulated militia is necessary for the security of a free state, and you take that as a fact today still?
What kind of close-minded, fundamentalist line of thinking is this? Times have changed. Look around you for a second. How can you make any believable, rational claim that a well-regulated militia is a necessity for the nation's security?
Giving everyone the right to bear arms does not make them a member of the militia, and it certainly does not make such a militia well-organized. Maybe you decide to form a well-organized militia and then argue that the members you recruit have the right to bear arms, then fine, I guess you can use the 2nd Amendment to support it.
This is totally indefensible. Nothing in the second amendment limits regulations on militias, either by state or federal governments. A well-regulated militia necessarily implies that there has to be a register of who is included, what weapons they have, etc., etc.
That implies government permission to have weapons, and on the type of weapons available for storage in the home. Moreover, nothing about that restricts the ability of states to control their own militia. Again, the Bill of Rights is a list of limitations on federal power that were only later and only in part expanded to the states. The second amendment has never been incorporated (and doesn't seem to fit the usual pattern for incorporation).
As far as the rest of what I cut out of this quote, you keep coming back to this "the first clause is the reason for the second" argument, which just doesn't hold water. You can't interpret away parts of the statute. It's there for a reason.
- John Stuart Mill
Here's an interesting quote from the Articles of Confederation:
Note the use of the words "well-regulated" and "disciplined". That's the kind of militia we're talking about. A state militia, well organized and well equipped. The same phraseology was used in the Constitution, just twelve years later.
"All able-bodied men" is not what we're talking about. It'd be a gross distortion of history to claim that.
Also, a somewhat tangential point I found interesting: your claim started from a universal right to bear arms based on militia service. Then it was narrowed to 17-45 year old males (members of this "unorganized militia"). Now it's down to 18-45 year old white men. You left that out in describing the 1792 Militia Act.
Bolding mine.
The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.
- John Stuart Mill
Not as fact, but as law.
The frame of mind that the Constitution is the only thing keeping us from mob rule of 51% of the population. Which, I think, a majority here would agree is a "bad thing." If the militia is honestly not necessary anymore (and I'd likely agree on that) then I say it's time to amend the Constitution to do away with that clause, or with the entire second amendment. Same way we amended the Constitution to allow for federal income taxes, direct election of Senators, and a host of other changes major and minor that have been necessary over the years.
Yes, this is not easy to do. There's a reason for that. Because if you can't get 2/3 of Congress and 2/3 of the states to agree on a change to the fundamental document governing this nation, then it probably shouldn't be changed.
But what we don't do is simply state that some section or another is "outdated" and thus doesn't apply anymore. Because while you and I obviously will agree that, say, the right against unlawful searches and seizures is necessary to a free state (regardless of whether we agree on private gun ownership), if we start deciding parts of the Constitution are "outdated" without due process then suddenly some folks might want to argue that with our current War on Terror (tm) perhaps maybe the fourth amendment is outdated as well.
Who knows, they might even get 51% of the vote.
No part of the Constitution comes with an expiration date. Even the old "three fifths" had to actually be amended out of it, regardless of how despicable that particular clause was. Because we are a nation of laws and not men, and until changed according to the procedure laid out the second amendment is still law.
So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
Actually, no. Because the National Guard of today is largely federally funded and subject to federalization at any time, so essentially it's a federal force that's "on loan" to the states when they're not doing federal shit with it. The idea of the militia was that it was preferable to keep some military forces in local (at the state level) hands in order to somewhat limit the power of the federal government over the states, while still providing for the common defense.
The National Guard in no way fills this role anymore.
That actually makes more sense. I suppose we're thinking more "the Chicago militia" or something - but I can't imagine anything like that would ever be practically funded on a local level anymore.
Solution: states create new militias under state control. Members of said militias have the right to "keep and bear arms." States which do not wish to create such militias don't have to. Heck, they could even ban guns within their borders outright.
The Constitution does have sections that state principles and purpose.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
You could take out the middle part of that sentence, because it's not operative law, it's a statement of policy and purpose. The only part that's operative is "We the People of the United States do ordain and establish this Constitution."
Saying that the first part of the Second Amendment isn't the operative part of the law is not "interpreting it out of existence," necessarily. Even if it is a weak argument :P
EDIT: I hope we can all agree that the Second Amendment is particularly strange because the rest of the Constitution is written in a fairly straightforward manner, while this Amendment is infuriatingly difficult to parse in comparison.
Whereas you may be right about the Founding Fathers perhaps not looking too favorably upon the Whiskey Rebellion, you may be right. I'm willing to cede that point, it was my mistake. However, I would dispute the point that the Founding Fathers necessarily saw that sedition against the United States Government was illegal, whilest sedition from the Royal British Government was justified. Rather, I would believe the line lies with the state of a free country versus tyranny. Take this quote from Governor Samuel Adams, in the aftermath of Shay's Rebellion, as an example:
"In monarchy the crime of treason may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of republic ought to suffer death."
Whether or not shared by the majority of the founding fathers, it is at least the case that there was significant influence from political philosophers such as Rousseau (Le Contrat Social) and Locke (Two Treatises of Government), who established ideas of a Government responsible to defend it's subjects' liberty, as well as the duty of the citizen-subjects to overthrow the government should it overstep its bounds and to, metaphorically, "void the [social] contract."
Before the accusation of off-topic comes, I do have a point. I point the reader back towards the second amendment for a moment:
Specifically, the bolded section, which is my addition.
Now, we might se this clause as a section defining the ability to possess arms as a specific usage to defend the Government of the United States; i.e., a "free State" refers to a sovereign country. However, given the context of the American Revolution, and given the context of the strongly anti-central sentiments of those anti-Federalists who forced through the Bill of Rights as an addition to the Constitution, I would argue that "a free State" refers not to a sovereign nation, but to a governmental body composed of free members. That is, the defense of the state was not only against potential outside invaders, but also the defense against the tyranny which might corrupt the state.
In such a case, the minor tyrannies of an excise tax on whiskey might not be considered qualifications for a just overthrow of the government. This I'm willing to accept, and thus why I'm willing to accept the condemnation of the Whiskey Rebellion as a whole - even though the final judgement of the government amounted in minor fines.
I believe we were both mistaken at first on your first point. The Whiskey Rebellion occured after the passage and adoption of the Constitution, and was the first exercise of strict Federal military power in keepin an organized government. I believe it was Shay's Rebellion which outlined the weaknesses of the Confederate Government. I believe I made the same mistake on my first post.
However, you are on one hand right that the Constitution was created to strengthen the Federal government, and it is written with that purpose, and it achieves its objective. However, I would like the reader to remember the significant resistance to the Constitution as it was first produced to vote, Federalists against Anti-Federalists. Indeed, it was this resistance to the Constitution that forced the creators of the Constitution to create the Bill of Rights, in which this Second Amendment was included.
Just as the express purpose of the Constitution is to "create a more perfect union," i.e., a stronger central government, the purpose of the Bill of Rights is to protect the rights of the people and ensure that they were not violated by this central government, which many in the colonies had come to fear after the Revolution. I have a question: if the Consitution dealt with the powers of the government, and the Bill of Rights dealt with the rights of the people and the restrictions of said Government, why is it that the Second Amendment to the Constitution would not in fact grant any right to the people, but instead grant a right to an organ of town or civil government with the arbitrary appelation of "well-regulated"? How is that defined, even?
Well, first, I fail to see how it is necessarily a trap. You've been unclear as to how it's necessarily a trap, except that it runs contrary to your interperetation of the section. And I never suggested that the first clause was meaningless.
Rather, my contention is that the first clause is the ideological and rational basis for introducing such a perminent and thorough right across the nation, and the justification for its inclusion. It certainly carries implication, I'm not arguing with that - but I argue that the implication is the protection of a free government and citizenry is the domain of the citizen, who must be armed in order that, should the need for a militia come to pass, he would be able to so commit his services. This would run consistant with the concept of "Right of Rebellion" outlined in the political philosophies that many of the Founding Fathers and authors of the Constitution and her Amendments were extraordinarily well-read in, and cited as far back as the Declaration of Independence.
The first and second sections indeed have consequence for the rest of the amendment, which I've just outlined and which I have spoken about in my previous post.
Several sections of that sentence are meaningful as to the nature of the Constitution. Consider that the "more perfect Union" section is part of the legal justification for refusing the right of the South to secede. These sections were also important in establishing general guidelines for the limits and goals of the federal government, much like the militia clause establishes the limits and goals of the right to bear arms.
Sorry, but I don't buy that interpretation of the preamble. It's a statutory statement of background for the operative laws that will be forthcoming in the statute.
That... that doesn't make any sense. Healthy democratic societies operate by enacting laws that are based on facts, rather than empty claims. Just because the Constitution says that a well-regulated militia is necessary for the security of a free state does not make it so.
In this case we are talking about the phrase in italics above as being the preamble for the amendment in question. When the preamble is factually wrong (or at the very least highly questionable), the integrity of the amendment itself is jeopardized.
You've just put forward an excellent argument in favor of an amendment doing away with it. Until that happens, however, it is still law. Which means that until you flesh that argument out and get 2/3 of Congress and 2/3 of the states to agree, the second clause still grants a right under the premise that the first clause puts forward as a given. Because, you know, no expiration dates. The same reason that the three-fifths compromise actually had to be amended out as well.
"What usually happens when people without guns stand up to people with guns?"
Should a government become tyrannical, one of 2 things will happen. 1) The people will fight back, or 2) They wont.
Option 1 is much easier if people have guns.
So yeah, I'd say arms bearing is necessary for the security of a free state.
- John Stuart Mill
Which is all well and good, but Thanatos' original point was re. constitutional interpretation, not the legal force of the clause itself.
And interpretation is a whole other issue.
Just to be a difficult prick: India chose option 2, and still overthrew an oppressive government in less than one generation.
Another alternative (and I believe the correct one), is that "State" means there, as it does elsewhere in the Constitution, Virginia or New York or Maryland, as opposed to the federal government. The restriction is on federal power to deny states the right to form their own militias and resist federal tyranny. It's a state's right, not an individual's.
You're right, it was Shay's Rebellion. My mistake.
Part of anti-federalist movement was concerned with the balance of power between the national and state governments. Thomas Jefferson and other anti-federalists were just as concerned with the rights of states as they were with the rights of individuals. That, I would suggest, is the reason that the Second Amendment fits into the Bill of Rights - as a restriction on federal power. The tenth amendment also fits into this context.
Consider also that the Bill of Rights didn't apply to the states until the passage of the Fourteenth Amendment (and even then, wasn't enforced as such until the 1960s). This reinforces even more that the concern of the anti-federalists (note the name) was with a tyrannical national government, more than with the rights of individuals.
It's a trap in the sense that it's a clever way of essentially writing the first clause out of existence. For all practical, legal purposes, it's as if the first clause doesn't even exist. When we interpret the law, we ought to try to interpret it in such a way that every word or phrase has some concrete implication on how the law is applied. That's the principle I would suggest that is being violated by that interpretation.
The "Right of Rebellion" is an interesting idea, but I would suggest that we've since repudiated it, for better or for worse. The Civil War removed the possibility of even whole states rebelling against the national government, much less non-state-affiliated militias. If we reject that right, the whole rest of the argument seems to have problems, since it's predicated on that right.
So... you're arguing that until 2/3 or Congress and 2/3 of Senate gets their collective heads out of their collective asses and does away with the amendment, you're going follow it blindly simply because, uh, it's the law?
Sounds a little bone-headed to me.
But it's not out of context. Your whole argument stems from a strict, textualist interpretation of the amendment. If you accept textualism there, without allowing for substantive changes resulting from changing values in the population, you have to acknowledge the textual argument elsewhere, including with regard to the 1792 Militia Act.
Secondly, if the universal right to bear arms is based on the need to maintain a militia, then banning arms for those outside the militia doesn't necessarily infringe upon that right. A similar argument governs in the case of free speech. Commercial speech (advertising and such) is not protected because the purpose of the First Amendment is to protect political speech, despite the broad phrasing of the right.
Therefore, the question of precisely who is a member of a "well-regulated militia" is an important one. While I would challenge the argument that all 17-45 year old white males are members, if we simply accept that argument, then it would appear that nonwhites do not have that right.
As opposed to the alternative, where 1/2 (plus one) of the two combined along with a sympathetic president can decide we no longer need the right against unlawful searches and seizures because "the world changed after 9/11?" Or hell, half (plus one) of my local city council, because drugs are ruining our town? Yeah, I think if the second amendment is the most flawed part of the Constitution in its current incarnation (and, for the most part, I'd say that's a fair assessment) we're doing alright, and it's probably best to stick to the proper legal remedies rather than just deciding "man, fuck that Constitution bullshit."
Well yeah, that's an option as well. Doesn't sound like they'll fall on ege02's side, though, which means that yes we'll need to follow it (though not blindly) until 2/3 of the above get their head out of their collective asses (assuming, of course, you think it needs to go in the first place...I don't).
- John Stuart Mill
Well, no, I'm talking about people who are arguing that the 2nd amendment gives individuals the right to bear arms despite being aware of the fact that the amendment is not factually accurate.
Well, I don't honestly agree that it's factually inaccurate...and you've certainly not shown this conclusively (nor has anybody else). I'm merely arguing that even if the first clause is no longer accurate, the law still stands until struck down; and there's a clear method to do so. I think until the necessary supermajorities can agree that it's no longer accurate, perhaps we shouldn't go scuttling it.
The phrasing of both of those drafts is substantively different from what was, in the end, agreed upon. In the final phrasing, the second clause is clearly conditioned upon the first.
True, it is not that "a well-regulated militia is necessary for the security of a free state" is factually inaccurate.
After all, opinions - which is what this thing is: the opinion of whoever wrote it - can't be right or wrong.
Look at it this way:
A requires B
C includes B
Since we need A, we will do C.
In effect, they were granting broader rights than were required for the stated reason. Maybe they thought it was better to have broader rights.
- John Stuart Mill