Is it just me, or should people stop banging away at the militia clause?

Status
Not open for further replies.
P

proud2deviate

Member
Joined
Dec 9, 2004
Messages
469
Location
Missouri
It seems that anytime somebody goes to court for a weapons violation recently (mostly having to do with NFA violations,) they want to defend their actions based on the militia clause. "I need/want/can legally own the weapon because I am/I'm in/I'm trying to form a Well Regulated Militia." Is it just me, or is that absolutely the wrong thing to do? First, I don't think this tactic has ever been successful. The judge usually makes some statement to the effect that the weapon in question is not in common use by well regulated militias, or that it's unsuited to militia use, or something along those lines. Then the defendant finds themselves up a particular creek without a paddle.

Second (and proud2deviate opinion comes in here. Get your salt shaker set to dispense one grain,) the militia clause has little or nothing to do with the right the 2A is supposed to protect. Let's review;

"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."

I'm not up on whatever the preferred capitalization and punctuation is nowadays, so my humble apologies are offered for mistakes in that area. I'll try to keep this short (Too late!) The first part of 2A, the militia clause, is a reason, not a requirement. It's one of many reasons, but it's a reason given when none is needed. It's rather like asking someone for a justification for practicing their chosen religion. Tell me that wouldn't raise an eyebrow or three. In my opinion, we need to thoroughly separate the militia clause from the right. We need to stop whining "But it's for the militia!" and start directing attention to "SHALL NO BE INFRINGED" in spite of the militia clause, not because of it. And of course, this fails to even take into account that the "Well Regulated", is frequently seen as justification to "regulate" the 2A out of existence, regardless of it's original meaning of "well formed" or "well equipped".

Opinions welcomed, of course.
 
I'd say that since the Supreme Court specifically ruled in Heller that, "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes,...." (emphasis added), the whole militia thing is pretty much off the table.
 
I don't think there's any harm in arguing 1) I have an individual right to keep and bear arms, but 2) I also happen to be a member of the militia, i.e., I am ready willing and able to defend my homeland if necessary, and this is one of the guns I could use for that purpose.

IMO, if we give up the militia angle entirely, it makes it easier for antis to argue that reasonable restrictions include AWBs, etc.
 
agreed proud2deviate and fiddletown. I heard it put this way, which makes more sense. Suppose the 2nd amendment stated

--A well regulated library system, being neccessary for the education of the populace, the right of the people to keep and read books shall not be infringed.--

No one would argue that this statement means you only have the right to use books that are on loan from the library.

My opinion is this is a moot point. Most antis I've met find the Constitution/Bill of Rights irrelevant. Making this argument results in a "So what? that was written 300 (sic) years ago by old white guys who wanted guns to shoot at indians."

From a legal standpoint it might have more merit, but as long as there is popular support for a law it doesn't really matter whether it is constitutional or not... I could write pages of laws (2nd amen and other) that are questionablly unconstitutional, but have popular support and therefore will continue to exist anyway.
 
Last edited:
I think that we should reexamine the "Shall Not Be Infringed" clause at the end there. People seem to forget that one...
 
justice4all said:
I don't think there's any harm in arguing ... but 2) I also happen to be a member of the militia,...
Click to expand...
This could be as much a tactical consideration as anything else. I can foresee the argument under some circumstances, and before some courts in some places, severely muddying the waters and turning the court off. And if you've made both arguments and the court rules on the basis of the "individual right" and tosses out the "militia" argument, all you've done is further erode the concept of a citizen militia.

justice4all said:
...if we give up the militia angle entirely, it makes it easier for antis to argue that reasonable restrictions include AWBs...
Click to expand...
If the standard, as for other Constitutionally protected rights, is "strict scrutiny" and "compelling state interest", as the Court in Heller hinted, that will be the test. I'm not sure that continually forcing the militia argument helps us there. As discussed above, a court favoring the individual rights approach while discounting the militia angle isn't going to help.

The only way the militia argument really helps here is if it's likely to be supported by the court.

jackdanson said:
...Most antis I've met find the Constitution/Bill of Rights irrelevant. Making this argument results in a "So what? that was written 300 (sic) years ago by old white guys who wanted guns to shoot at indians."...
Click to expand...
How true. The legal and Constitutional arguments are important in court. But in the political arena and the forum of public opinion, discussing rights gets little or no traction. There we must focus on demonstrating that having armed, honest private citizens can be good public policy. I think good arguments exist for that proposition, and we must continue to press them.
 
The main clause is, well, the main point of 2A: "the right of the people to keep and bear arms shall not be infringed."

The preamble is not a limiting clause, but an example of why it would be in the best interest of the government to respect the "right of the people": for example, "A well regulated militia being necessary to the security of a free state," a citizenry who keep and bear arms makes calling up a militia, or even a voluntary army, or even a sheriff's posse, easier. But its not the only reason, its an exemplar clause, not a limiting clause.
 
its an exemplar clause, not a limiting clause.
Click to expand...

Since I'm not a constitutional scholar(or an english major, my edumacation is good), is this considered correct? Is there a source which supports it? Honest question, I'm curious.
 
In this case it's an exemplar clause, 'cause the SC ruled it is as such in Heller.....
 
The Second Amendment was not put into the Constitution by the Founders merely to allow us to intimidate burglars, or hunt rabbits to our hearts' content. This is not to say that hunting game for the family dinner, or defending against personal dangers, were not anticipated uses for firearms, particularly on the frontier. But these things are not the real purpose of the Amendment.
 
yokel said:
The Second Amendment was not put into the Constitution by the Founders merely to allow us to intimidate burglars, or hunt rabbits to our hearts' content. This is not to say that hunting game for the family dinner, or defending against personal dangers, were not anticipated uses for firearms, particularly on the frontier. But these things are not the real purpose of the Amendment.
Click to expand...
Yes, we know all of that. But I suggest that it's also prudent to remember that when we bring that sort of thing up in mixed company (us and them), it tends to scare the bejesus out of a lot of them. In some circles it also damages our credibility and makes it easy to dismiss us as crazed, paranoid minuteman wannabees. To win, we have to be aware of how we're perceived by the rest of the world. As long as we keep our guns, I'd just as soon keep the real purpose of the Second Amendment among ourselves.

Out in pubic we will be better served by focusing on the good public policy reasons for the Second Amendment that most folks can process and get their minds around -- like attending to burglars.
 
I hate to burst your bubble, but it is hardly a well-kept secret that the right to keep and bear arms derives from our duty to retain the basic means necessary to defend our country and our liberty.
 
Yokel, I know, but we don't have to go rubbing peoples' noses in it. Every time it comes up, you can hear everyone in the peanut gallery calling us cranks. That really doesn't help. We need to let it be, except in the family. The important thing is keeping our guns. It doesn't hurt to learn a little subtlety.
 
An either-or fallacy, one poses what looks like a true dilemma--I must pick one or the other--when, in fact, there are other viable alternatives.

In our defense of Second Amendment rights, we must emphasize the fundamental purpose of the amendment. If we leave the impression that we think that the right to keep and bear arms concerns hunting and sports shooting, thwarting your general street-level criminal, and making sure Americans have the right to entertain themselves with guns, we will actually contribute to the false view that the Second Amendment is a historical curiosity.
 
Yokel, we've been through this sort of thing before. You don't seem to understand how to get things done in the real world. And you don't seem to grasp how most folks who are not hardcore gun people respond to those arguments.

When you start to, "...emphasize the fundamental purpose of the amendment...", you will get dismissed by most people as a nut case. You will lose credibility. If non-gun people won't listen and pay attention to you, how does that help? You're back titling at windmills, and that didn't get Don Quixote very far.
 
I see no problem with arguing on the militia point, except that I've yet to see anyone do it well. People lose credibility only because they allow themselves to fall into the assumptions of the 'public'. Whenever it's brought up, you must be extremely clear about what the militia is. It is not an organized group. By its very definition it does not meet or drill or train out in the woods with army fatigues. The Militia = the public = the militia = the people.

However a very good point is to be made for noting the militia part, specifically it is the purpose. It does not add to the right, but it puts a lowermost limit. You won't get anywhere with "shall not be infringed". The Supreme Court will laugh at you. There are exceptions to every right, and there's no getting around that. But clearly, military-type weapons must be legal, or else it defeats the very purpose which it is written for. And we're teetering on that ledge.

As the court said "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes.." and fighting for the state or against tyranny is undoubtedly one of those purposes.
 
But clearly, military-type weapons must be legal, or else it defeats the very purpose which it is written for. And we're teetering on that ledge.
Click to expand...

Indeed, misguided attempts to obfuscate the issue in an effort to sway soccer moms or anyone else is not an achievement to be proud of, more an act of utter folly.
 
It doesn't hurt to learn a little subtlety.
Click to expand...
Well, I think the days of compromise are over. Compromise has been all one sided in any case.The chants 'Acceptance' and 'tolerance' aren't being honored by our socialist bretheren.
The militia has nothing to do with RKBA-any arms. I hardly think that the 20,000 gun laws on the books honor the spirit of 'shall not be infringed' and/or 'reasonable' gun laws.
It really doesn't matter anymore if you claim militia or God given rights the purpose of the restrictions are disarm us. Please stop talking around the issues.
 
Dmack_901 and yokel, how many people have you turned with your "true purpose of the Second Amendment" arguments? Who has listened to you? Let's see some results.

lamazza, what positive accomplishments in furtherance of the RKBA can you take credit for?
 
Your strategy plays right into the hands of our adversaries who are keen to further dilute and emasculate the Second Amendment.

Furthermore, it perpetuates the ADL's ridiculous and crude stereotype of the militia as a a right-wing extremist movement consisting of armed paramilitary groups, both formal and informal.

It's time to take back the name militia for all the positive and hopeful things it truly represents.

After all, it was ours first and, given our interest in liberty, it's only right that we take it back.
 
Yokel, I know, but we don't have to go rubbing peoples' noses in it. Every time it comes up, you can hear everyone in the peanut gallery calling us cranks.
Click to expand...

Seems like activism to me. Some really strong parallels to women fighting for the vote, or blacks fighting for equality, etc.

As for those who call us "cranks", see my sig line.
 
yokel said:
Your strategy plays right into the hands of our adversaries ...
Click to expand...
No, your strategy does. It turns people off and away. Whenever you proclaim your views, people will look at you and say to themselves, "Ah, there goes another right-wing, para-military extremist, I'll pay him no attention."

You can not sell people an idea unless you can get them to listen to you. You have freedom of speech, but others have the freedom to ignore you and oppose you.

If your strategy is so sound, tell us about how successful you've been. Who have you won over? Who is actually listening to you? What have you actually accomplished?

ZeSpectre said:
Seems like activism to me....
Click to expand...
There's successful activism and unsuccessful activism. Folks promoting the idea that the earth is flat or that the Holocaust never occurred are also engaged in activism.

ZeSpectre said:
As for those who call us "cranks", see my sig line.
Click to expand...
So what? How does that help.

Come on guys. You're so sure you're on the right track, prove. Show us some successes.
 
Since I live in Los Angeles county, I have been involved in quite a few discussions, and tend to stick to the right of the people portion, and counter the militia argument when the other side brings it up (and it helps to know how "militia" was defined when the 2nd amendment was written, and be ready to argue that the power to arm the military is implicit in the power to organize it when the controllers try to argue that it is to arm the National/state Guard)
 
So what? How does that help.
Click to expand...
<sigh> (the meaning behind my SIG line....with regard to what most anti types think)
There will always be detractors. You can waste your time standing on the side of the road arguing with them, or you can keep your focus on the goal you intend to achieve and keep moving towards it.

Or to put it another way, Joe Armchair may make a lot of noise about what he thinks, but he's never once set foot inside city hall or any other place where the machinery of government operates. Because of that he and his opinion can be safely ignored. Now if someone starts showing some serious intent and putting some actual effort/action behind that intent, that's someone to take into consideration.

That any clearer?
 
Last edited:
Status
Not open for further replies.

Similar threads

T
  • Locked
Clause and Effect
Replies
16
Views
864
Sage of Seattle
S
ilbob
  • Locked
a few quotes just because I am ornery
Replies
5
Views
993
NAK
NAK
2
  • Locked
The Forgotten Militia Amendment
Replies
7
Views
827
jimpeel
J
C
  • Locked
Law For Lawyers
2
Replies
41
Views
1K
SteveS
S
2
  • Locked
The Second Amendment and the Preamble to the Bill of Rights
Replies
7
Views
416
Combat-wombat
C
Back
Top