2nd Amendment Militia Clause

[Rainsford]

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.

Disclaimer: I created yet another gun debate thread for this hoping to stick to a legal discussion of the 2nd amendment without the rest of the gun debate baggage on either side. Value judgements, emotional appeals, theoretical arguments etc, are found in great abundance in enough threads already. I'm optimistic

One thing that I still don't quite understand about the gun debate is the way the pro-gun folks read the 2nd amendment...a reading that recently was explicitly backed up by the Supreme Court in Heller. That interpretation, as I understand it, says that individuals have the right to keep and bear arms and that government at any level may not infringe on that right (with some limitations). Or in other words, that the part of the amendment AFTER the comma is the only part that shapes our rights. The first part, when it's mentioned at all, is said to be a statement of purpose or general comment on the idea of gun ownership with no legal impact on the rights defined in the amendment.

Now regardless of how you feel about gun rights, it seems like this interpretation is a bit strange. After all, the interpretation would be EXACTLY the same if the amendment simply read "The right of the people to keep and bear arms shall not be infringed." I'm not a lawyer, but it's a little hard to believe that laws can be correctly interpreted by only reading half the words. The rest of the Bill of Rights doesn't seem to offer any examples of this construction, for example.

The "statement of purpose" argument, as made by the majority of the Supreme Court, is that the militia clause says people are allowed to keep and bear arms so that a citizens militia could be formed...regardless of whether it is or not. Even if you agree with this interpretation, it seems like the "necessary to the security of a free state" purpose would need to apply to the theoretical militia. Given the changes in our country since the 1700s, I'm not entirely sure that is necessarily true. And if the statement of purpose no longer applies, what is the legal implication for the rest of the amendment? Would the framers have left out the second amendment if they didn't believe the first clause was true, or would they simply have reworded it? For that matter, can the legal argument be made that it IS true, that individuals owning weapons is a key part of our state/national security?

I'm hardly the most stalwart supporter of gun-rights, but I'm honestly curious about the arguments for the current interpretation of the 2nd amendment. Even if the interpretation is right, that still leaves room for limited, reasonable gun control (as suggested in Heller), but understanding the 2nd amendment itself is still a good first step. And I'm curious what you all think about it

 

[exdeath]

In the historical context of the writing of the constitution, militia was regular citizens and well regulated meant well equipped and capable. It's already obvious that military and law enforcement are going to have weapons, so 2A was explicitly needed so that ordinary people could also have those weapons.

 

[highland145]

British Gen Gage is one of the reasons for the 2nd.

The 2nd is for the citizenry to be able to protect themselves from the government(monarchy).

http://www.davekopel.org/2A/LawRev/american-revolution-against-british-gun-control.html

 

[GrGr]

Think of the local milita and the second amendment as the local Taliban. Now where would Afghanistan be if the armed citizens weren't able to fight off the foreign invaders, and local corrupt drug warlords, thanks to their small arms?

That's why no sane nation would ever come up with the notion of invading the US. There would be a local Taliban behind every blade of grass (to paraphrase a Japanese general) armed to the teeth.

 

[Anarchist420]

The anti-Federalists were the ones who wanted the bill of rights and they correctly foresaw the Federal tyranny we suffer from today. Knowing that, the "well-regulated militia being necessary to the security of a free State" meant that the Federal govt should not infringe upon the States' rights to have militias to resist Federal tyranny.

The Hamiltonian Constitution still sucks ass though because it's kind of hard to rebel against a govt with a standing army... Madison promised the bill of rights because he knew that it couldn't limit the govt.

 

[Hayabusa Rider]

If one reads quotes from those who framed the constitution one sees that a well trained civilian force was to be desired, however that was never said to be the sole justification.

No Free man shall ever be debarred the use of arms."

That's from the same man who's opinions brought about the principle of the separation of church and state. Note Jefferson's comments weren't contingent nor conditional.

 

[Rainsford]

Think of the local milita and the second amendment as the local Taliban. Now where would Afghanistan be if the armed citizens weren't able to fight off the foreign invaders, and local corrupt drug warlords, thanks to their small arms?

That's why no sane nation would ever come up with the notion of invading the US. There would be a local Taliban behind every blade of grass (to paraphrase a Japanese general) armed to the teeth.

That's what I was thinking of with the comment on "necessary to the security of a free State". No sane nation would try to invade the US because our incredibly massive military spending at both the federal and state level. Potential enemies are incredibly unlikely to even step foot on our shores between our Navy and Air Force. I agree with what you're saying, but "necessary" seems like a bit of a stretch at this point when it comes to foreign invasion.

 

[Charles Kozierok]

Where is the mention of an individual right to free speech or religion in the first amendment?

 

[werepossum]

In the historical context of the writing of the constitution, militia was regular citizens and well regulated meant well equipped and capable. It's already obvious that military and law enforcement are going to have weapons, so 2A was explicitly needed so that ordinary people could also have those weapons.

This. Although I do wish the Founders had not attached the reasoning within the Right, which only invites those seeking state control to provide another solution and thereby remove the right.

The preferred liberal view of the Second Amendment is that it refers to the right of states to have militias. The right of government (whether local or national) to impress its citizens to fight on its behalf was universal - couldn't have a nation without it - so guaranteeing states the right to keep militias (especially given that we had no standing army) would be nonsensical, and enshrining it in the Bill of Rights would be an offense at least equal to that of King George when he attempted to disarm his American subjects. Seriously - you have the RIGHT to fight for your state?

As far as its applicability today, an armed population with the will to resist simply cannot be taken, so I'd say it's pretty relevant. This is why we did not invade Afghanistan alone, but rather picked the east repugnant faction and backed them. We know they have the will to fight, and with that will they would eventually make occupation more expensive that it was worth. The same applies to us (to the extent we would resist any invader promising income redistribution and universal health care) and is just as applicable to tyranny from within as from without. An army of occupation simply cannot exist long term within a hostile, armed populace. Tanks have to be services, planes have to land. A semi-automatic rifle is more useful to the untrained than is a fully automatic rifle, a pump 12 gauge makes a damned fine CQB weapon, and if you can pick off a deer at 300 yards you can pick off an enemy officer.

 

[Rainsford]

Where is the mention of an individual right to free speech or religion in the first amendment?

The 1st amendment doesn't explicitly refer to a motivation behind the freedom of speech, it just gives it. The "motivation" clause is really the point I'm not sure about, not the usual individual vs group right argument.

 

[Screech]

Prior to the revolution there was no american army -- there were just people with guns as the link provided by highland above explains. Obviously, in this mindset, if you want to be able to call upon a militia to defend a free state, it is therefore required that the people generally (and not merely collectively but individually) be able to keep and bear arms, even if they are outside any armed forces. (otherwise, where do the armed forces come from? Even today, it is a lot easier to have a volunteer army when people are already familiar with firearms)

This also applies today as it is rather obvious that if you want to resist a government (here or elsewhere) you need to have arms to do it. Most rebellions in those times at some point had rebel militias of some variety that was formed from citizens who had had enough with the government. You can argue that since the US has a large army it no longer realistically faces a threat externally, but being able to form a militia quickly against our own government is reasonably expected to be a reason for the second amendment.

Now, that's not to say that our current government wouldn't wipe the floor with them, but eventually, that time may come.....you never know. Genocide tends to happen after disarmament, and "but that could never happen here" is what has been said every single time.

 

[Charles Kozierok]

The 1st amendment doesn't explicitly refer to a motivation behind the freedom of speech, it just gives it. The "motivation" clause is really the point I'm not sure about, not the usual individual vs group right argument.

Yes, but the militia was defined as being the whole of the people. So I'm not sure that really helps either.

 

[Rainsford]

This. Although I do wish the Founders had not attached the reasoning within the Right, which only invites those seeking state control to provide another solution and thereby remove the right.

The preferred liberal view of the Second Amendment is that it refers to the right of states to have militias. The right of government (whether local or national) to impress its citizens to fight on its behalf was universal - couldn't have a nation without it - so guaranteeing states the right to keep militias (especially given that we had no standing army) would be nonsensical, and enshrining it in the Bill of Rights would be an offense at least equal to that of King George when he attempted to disarm his American subjects. Seriously - you have the RIGHT to fight for your state?

That's actually kind of the source of my issue here...no interpretation really makes a lot of sense to me. You bring up some good points about the issues with the other common interpretation, although that's not the only one out there. But the argument that we should read the first half of the amendment as having no legal implications seems goofy too. You said you wish they hadn't included it, but the current interpretation more or less works as if they didn't.

I wonder if it's simply that the amendment was written in context so different from ours that understanding their reason for writing it the way it's really possible. That it's basically terrible writing from our perspective and the only way to really understand what they meant is look at the bigger picture.

As far as its applicability today, an armed population with the will to resist simply cannot be taken, so I'd say it's pretty relevant. This is why we did not invade Afghanistan alone, but rather picked the east repugnant faction and backed them. We know they have the will to fight, and with that will they would eventually make occupation more expensive that it was worth. The same applies to us (to the extent we would resist any invader promising income redistribution and universal health care) and is just as applicable to tyranny from within as from without. An army of occupation simply cannot exist long term within a hostile, armed populace. Tanks have to be services, planes have to land. A semi-automatic rifle is more useful to the untrained than is a fully automatic rifle, a pump 12 gauge makes a damned fine CQB weapon, and if you can pick off a deer at 300 yards you can pick off an enemy officer.

For practical reasons I'm not too worried about defending ourselves like Afghanistan, but the national defense aspect does suggest to me that there is intended to be more regulation/organization than just a bunch of well armed individuals. There is more to resistance than being armed, after all. As you pointed out, the will to resist isn't guaranteed by being armed. And personally I think that extends well beyond political lines (but then again, I think so do you )

 

[Charles Kozierok]

If you look at it in the context of the time, and compare to other documents, it becomes more clear. For example, look at the Virginia Declaration of Rights, upon which much of the US BOR was based. In part:

A DECLARATION OF RIGHTS made by the Representatives of the good people of VIRGINIA, assembled in full and free Convention; which rights do pertain to them and their posterity, as the basis and foundation of Government.
...
XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The language is more clear in this case.

The guarantee of individual rights is also often spelled out at the state level in other states.

 

[highland145]

This. Although I do wish the Founders had not attached the reasoning within the Right, which only invites those seeking state control to provide another solution and thereby remove the right.

The preferred liberal view of the Second Amendment is that it refers to the right of states to have militias. The right of government (whether local or national) to impress its citizens to fight on its behalf was universal - couldn't have a nation without it - so guaranteeing states the right to keep militias (especially given that we had no standing army) would be nonsensical, and enshrining it in the Bill of Rights would be an offense at least equal to that of King George when he attempted to disarm his American subjects. Seriously - you have the RIGHT to fight for your state?

As far as its applicability today, an armed population with the will to resist simply cannot be taken, so I'd say it's pretty relevant. This is why we did not invade Afghanistan alone, but rather picked the east repugnant faction and backed them. We know they have the will to fight, and with that will they would eventually make occupation more expensive that it was worth. The same applies to us (to the extent we would resist any invader promising income redistribution and universal health care) and is just as applicable to tyranny from within as from without. An army of occupation simply cannot exist long term within a hostile, armed populace. Tanks have to be services, planes have to land. A semi-automatic rifle is more useful to the untrained than is a fully automatic rifle, a pump 12 gauge makes a damned fine CQB weapon, and if you can pick off a deer at 300 yards you can pick off an enemy officer.

And I thought you were just an electrician.



Sane posts in P&N, thanks Mike.

 

[Rainsford]

If you look at it in the context of the time, and compare to other documents, it becomes more clear. For example, look at the Virginia Declaration of Rights, upon which much of the US BOR was based. In part:

The language is more clear in this case.

The guarantee of individual rights is also often spelled out at the state level in other states.

I had definitely heard that the language is more clear at the state level.

One way to think about it that makes somewhat more sense to me is that even if the amendment was intended for militia reasons ONLY, it would be hard to meet that goal while placing significant limitations on the right of individuals to own weapons. In other words, ensuring civilian militias can be formed requires the second clause to be interpreted very broadly.

 

[OutHouse]

Finally a educational thread in P&N. if any troll fucks it up the mods better beak out the banstick.

 

[Charles Kozierok]

The issue is that people today think of "the militia" as being either the army or some group of end-of-the-world whackjobs in a bunker. That's not what it meant back then. It meant the people themselves.

The biggest problem with the second amendment is that its authors assumed too much.

 

[desertdweller]

I had definitely heard that the language is more clear at the state level.

One way to think about it that makes somewhat more sense to me is that even if the amendment was intended for militia reasons ONLY, it would be hard to meet that goal while placing significant limitations on the right of individuals to own weapons. In other words, ensuring civilian militias can be formed requires the second clause to be interpreted very broadly.

Militia as defined by the .gov. http://uscode.house.gov/download/pls/10C13.txt

 

[highland145]

TITLE 10 - ARMED FORCES Subtitle A - General Military Law

 

[TerryMathews]

Militia as defined by the .gov. http://uscode.house.gov/download/pls/10C13.txt

As defined in 1956. Not applicable to a document written in 1776.

 

[werepossum]

That's actually kind of the source of my issue here...no interpretation really makes a lot of sense to me. You bring up some good points about the issues with the other common interpretation, although that's not the only one out there. But the argument that we should read the first half of the amendment as having no legal implications seems goofy too. You said you wish they hadn't included it, but the current interpretation more or less works as if they didn't.

I wonder if it's simply that the amendment was written in context so different from ours that understanding their reason for writing it the way it's really possible. That it's basically terrible writing from our perspective and the only way to really understand what they meant is look at the bigger picture.



For practical reasons I'm not too worried about defending ourselves like Afghanistan, but the national defense aspect does suggest to me that there is intended to be more regulation/organization than just a bunch of well armed individuals. There is more to resistance than being armed, after all. As you pointed out, the will to resist isn't guaranteed by being armed. And personally I think that extends well beyond political lines (but then again, I think so do you )

The current interpretation works as if the statement wasn't included because it's justification, not modification. "Because it's raining, I'm taking my umbrella" has exactly the same meaning as "I'm taking my umbrella". As to why it's in there, not all the Founding Fathers agreed on what rights citizens should have. Some thought the problem with King George was that he was merely too far away - he wasn't the "right" king. Under that system, one is a subject, not a citizen, and is ruled rather than governed or led. Whatever rights a subject has are accorded to him by the ruler, as opposed to our system where rights are assumed to come from G-d and merely be protected by government as needed. Getting the Bill of Rights at all was a huge accomplishment because of these opposing views plus the views of some that specifically spelling out ANY rights was a mistake because any rights not specifically mentioned would be presumed to belong to the federal government. Think of tax cuts - Bush got them passed, but had to accept a time limit. Politics is always the art of compromise.

 

[Lemon law]

As I believe our OP in Rainsford has it right in quoting the second amendment to our constitution has it right in saying, "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."

Vague language to be sure, but methinks the singular clause of well regulated militia does not and cannot apply to individuals American Citizens.

As our founding fathers had a fear, that a dictatorial Federal government that must have a standing army could run ruff shod over the rights of individual US States unless those individual US States did not have the right to form standing armies too. To jointly oppose a dictatorial US central army.

As it led to a constitutional test of that very concept during our American civil war. And maybe best tested by a member of the US Federal army named Robert E. Lee. As he had the wrestle with the question of where his loyalty should lie. Should it lie with the US Federal army he was already proudly serving, or with the State of Virgina he was a member of?

As history teaches the answer, when both the US Federal army and the State of Virgina both offered Robert E. Lee a leadership role. Robert E. Lee rightly or wrongly choose to side with the Army of Virginia. As the state of Virgina and other confederate States used their well regulated State militias to forge a large army to oppose the army of the Federal government, who majority decided to not permit or allow an individual US State to succeed from the Federal government. As we also had agreed to join four score and seven years ago. As that final outcome question was settled in blood by 1865.

As subsequent SCOTUS rulings usually sided with the fact, individual gun owners, since they had no standing regarding a well regulated militia, had no real standing in the right to own unlimited arms. And thus the argument stuck until activisits and idiotic judges in MhO, extended that second amendment right to every kook who owned a gun

 

[shortylickens]

Does Olds have any rules regarding trolling?

 

[1prophet]

Who is this that has the potential ability to infringe that an amendment is necessary to protect the people from them doing so?