2nd Amendment: For the militia, or because of the militia?

[barnbwt]

In modern terms, the "militia" is the base from which the active armed forces may be drawn, either by conscription or volunteering. That's the only thing that would be analogous to the 18th century "universal" militia that the Framers had in mind. There is no problem in seeing this as synonymous with "the people." (Indeed, if the draft were re-instituted today, it would doubtless include women, minorities, etc., categories that were excluded from the "militia" in the 18th century.) The 2nd Amendment is saying that this base should already be armed, before the need arises.

The Article I provisions concerning the militia, namely:

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"​

are totally consistent with this interpretation.

Just as the meaning of 'arms' as those suitable for lawful purposes hasn't changed, neither has the meaning of the militia. At most it has been modified by the 14th amendment to include minorities and women. In order to be a effective base to draw upon for militia service, you needed armed and equipped men. The point was to avoid the expense and abuses of conscription, and take some burden/responsibility off the domestic armed forces.

TCB

 

[grampajack]

The 2nd amendment simply says 'Militia', not 'Organized Militia', not 'Unorganized Militia'.

What the founding fathers used as argument that became law is very relevant, the odd quips and quotes are just a sample of what the men of that time ment and intended.

The Militia is the People. The Supreme Court has said so.


Justice Antonin Scalia, writing for the majority in Heller, stated:
'' Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people" – those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear Arms" in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as "the people".....''

Dude, no. This is exactly what I'm talking about regarding people not reading things before they post.

Actually it says a "well regulated militia."

And not that the supreme court is a reliable authority on anything, but Scalia is saying the same thing I am, that the militia is NOT synonymous with "the people." And there's that term "organized" again. How you can interpret that quote as you have is beyond me. Scalia is very plainly saying that the militia is NOT the people.

"As we will describe below, the "militia" in colonial America consisted of a subset of "the people...""

 

[grampajack]

Just as the meaning of 'arms' as those suitable for lawful purposes hasn't changed, neither has the meaning of the militia. At most it has been modified by the 14th amendment to include minorities and women. In order to be a effective base to draw upon for militia service, you needed armed and equipped men. The point was to avoid the expense and abuses of conscription, and take some burden/responsibility off the domestic armed forces.

TCB

There are not supposed to be any domestic armed forces in the first place, save for the Navy. The militia (a well regulated militia, not a bunch of unorganized farmers) was meant to be in place of a standing army, not in addition to it.

 

[CoalTrain49]

Good point Barnbwt.............The Collective Right is a logical oxymoron, but its not only an idea/theory, it is the propelling Ideal/force that gives way to a well armed people who do not want a Master, but a say, and just like the the Electoral Collage having the states vote for the Presidency, rather than a direct Democracy where large citys from over the hill and far away direct the doings of the Nation, the majority is kept in check. Same check with the recognition of Inalienable Rights......its the old Direct Democracy is 3 Wolves and a Sheep deciding whats for dinner, while a Constitutional Republic has 3 Wolves and a well armed Sheep deciding whats for dinner. Aaaaaaand the Wolves now want to ban guns....Sometimes, the majority must be kept from infringing on the fewer....

Old, young, man, woman, crippled or weak, guns make us equal.


And what Scalia wrote, matters. The People ARE the Militia and vice versa, my only point.....

This is the same reason Alaska has the same number of senators as California.

 

[CoalTrain49]

So if we can't seem to agree on what the militia actually is how are 5 Supreme court justices (majority) supposed to come up with the same interpretation? Obviously they're all over the field when it come to 2A as noted. The lower courts aren't however and until they come around on some interpretation that states don't have the right to regulate nothing will change.

The term militia in 2A and 10A will always be there and used to regulate. It's almost a catch 22. The fed regulates with congress and the states regulate under 10A. All the while the SC is silent.

 

[stoky]

Undermining of the Second Amendment and the rest of the Bill of Rights happened long before the NFA. Hamilton successfully championed Federalism, as a member of a political party named for it's intent. Which probably explains the popularity of his namesake stage play.
What with all the confusion, here's a new and improved modernized 2A:

 

[boom boom]

There are not supposed to be any domestic armed forces in the first place, save for the Navy. The militia (a well regulated militia, not a bunch of unorganized farmers) was meant to be in place of a standing army, not in addition to it.

This is factually untrue--the U.S. Army and its predecessor the Continental Army predates the U.S. Constitution and there was no serious arguments about continuing it under the Articles of Confederation and specifically granting the power to the U.S. Congress under the Constitution along with the Navy-see the so-called Army clause which precedes the Navy Clause under Article I. The renamed U.S. Army in 1784 was much smaller after the Treaty of Paris (see the 1st American Regiment) but was still in existence and was promptly continued in existence by the First Congress.

Anti-Federalists complained about standing armies, which was a standing complaint of Whigs that actually dates back to fights between pre-revolutionary English Parliament and the kings of England over power, but Anti-Federalists like the later Confederates--lost and so do not guide any originalist interpretation of the Constitution apart from if the Anti-Federalists and Federalists agreed on the meaning of some clause then it should be interpreted as such (see textualism).

Well regulated militia explains why the Constitution through the 2nd Amendment citizens (the people) have a protected right to arms.
The Bill of Rights focuses on individual rights not collective rights or even states rights apart from the 10th and 11th Amendment. It is an individual right--period (see Locke's Second Treatise and Blackstone's Commentaries on the Laws of England if you wish as these sources strongly influenced the framing of American government, its legal system, and constitutionalism regarding protection of rights).

A lot of people believe that you can infallibly logically deduce what the meaning of the words and phrases in the U.S. Constitution (or a law, or a statute, or a regulation etc. ) by what the words mean to that individual. Unfortunately, this just ain't so. Some of the most appalling decisions of courts come from when they ignore generally accepted and most reasonable interpretations to create some bold new understanding of a law devoid of any support in past history for their interpretation.

The meaning and definition of any socially shared compact, contract, laws, etc. must be governed by the community, not by one individual's understanding. Thus, an opinion, devoid of any specific facts, is just that. A reasoned opinion is supported by facts derived through historical usage, court cases, legal and popular commentary, and statements from the Framers (including those in state constitutional conventions and those adopting state constitutions) as well as expressed through laws and resolutions of legislative bodies, is worth much more. Don't bring rhetoric to a dialectical conversation and an unbased opinion is simply rhetoric.

 

[barnbwt]

So if we can't seem to agree on what the militia actually is how are 5 Supreme court justices (majority) supposed to come up with the same interpretation? Obviously they're all over the field when it come to 2A as noted. The lower courts aren't however and until they come around on some interpretation that states don't have the right to regulate nothing will change.

The term militia in 2A and 10A will always be there and used to regulate. It's almost a catch 22. The fed regulates with congress and the states regulate under 10A. All the while the SC is silent.

My point, at least, is it doesn't matter exactly how the militia functions. I reach the same logical conclusion so long as I retain the premise of an independent armed counterpoint to the military being necessary. Now, if we want to argue the validity of that aspect as far as original intent, I'd want a very thorough survey of text & supporting statements by framers.

TCB

 

[RPRNY]

So if we can't seem to agree on what the militia actually is how are 5 Supreme court justices (majority) supposed to come up with the same interpretation? Obviously they're all over the field when it come to 2A as noted. The lower courts aren't however and until they come around on some interpretation that states don't have the right to regulate nothing will change.

The term militia in 2A and 10A will always be there and used to regulate. It's almost a catch 22. The fed regulates with congress and the states regulate under 10A. All the while the SC is silent.

It doesn't matter. They need not agree.

The second amendment does not regulate, establish, authorize, or fund a militia, well regulated or drunk and disorderly in the streets. Nor does the term "militia" define the right enumerated in the Amendment. The Second Amendment prohibits laws that disarm "the people". Which part of "the right of the people..." is hard to understand? Which word in "the right of the people..." is spelled "M-I-L-I-T-I-A"? Where does it define "the people" with regard to their membership in a militia? It doesn't.

The militia could be made up of one-armed midgets, ordained in the Moony Church, and descended from George Washington for all it matters to the right enumerated in Second Amendment. That right belongs to "the people".

 

[CoalTrain49]

It doesn't matter. They need not agree.

The second amendment does not regulate, establish, authorize, or fund a militia, well regulated or drunk and disorderly in the streets. Nor does the term "militia" define the right enumerated in the Amendment. The Second Amendment prohibits laws that disarm "the people". Which part of "the right of the people..." is hard to understand? Which word in "the right of the people..." is spelled "M-I-L-I-T-I-A"? Where does it define "the people" with regard to their membership in a militia? It doesn't.

The militia could be made up of one-armed midgets, ordained in the Moony Church, and descended from George Washington for all it matters to the right enumerated in Second Amendment. That right belongs to "the people".

I think you are defeating your own argument here.

2A doesn't regulate anything. It only guarantees that a person has a right to be armed. The SC has upheld that. The people are free to elect the legislators, both state and federal, to either enhance it or degrade it as they see fit. I haven't seen any huge support to repeal NFA or GCA, have you? If it's such a pressing issue like prohibition was, why are we not seeing people demanding change. The truth is most people like it the way it is. Remember that Hillary won the popular vote and BHO won twice. Does that tell you anything about the general mood in the country about our RKBA? Not exactly my idea of how things should go but at least I get to participate.

You keep referring to "the people". Are those people living today or are those the people that were around 200 years ago. The system has to be dynamic enough to serve the people today.

 

[RPRNY]

I think you are defeating your own argument here.

2A doesn't regulate anything. It only guarantees that a person has a right to be armed. The SC has upheld that. The people are free to elect the legislators, both state and federal, to either enhance it or degrade it as they see fit. I haven't seen any huge support to repeal NFA or GCA, have you? If it's such a pressing issue like prohibition was, why are we not seeing people demanding change. The truth is most people like it the way it is. Remember that Hillary won the popular vote. Does that tell you anything about the general mood in the country about our RKBA?

Are we in the same universe? Whatever are you talking about?

You have been arguing ad nauseum about the definition of militia in the Second Amendment. The Second Amendment does not regulate or define the militia in any way; it only prevents laws that would disarm the people. Is your statement above some kind of bizarre passive-aggressive tactic, or an episode of some sort?

 

[grampajack]

Just to be clear, I am arguing that the 2nd grants the individual right to bear arms. If "the people" is not synonymous with "a well regulated militia" then the case for that is even stronger. Don't forget that the NFA came about namely because the courts bamboozled everyone into believing that the militia and the people were the same thing. The legality of the NFA is predicated on that very idea.

 

[RPRNY]

If "the people" is not synonymous with "a well regulated militia" then the case for that is even stronger. .

It may be. It may not be. But you won't find the answer in the Second Amendment, because it doesn't define "a well regulated militia".

 

[CoalTrain49]

Are we in the same universe? Whatever are you talking about?

You have been arguing ad nauseum about the definition of militia in the Second Amendment. The Second Amendment does not regulate or define the militia in any way; it only prevents laws that would disarm the people. Is your statement above some kind of bizarre passive-aggressive tactic, or an episode of some sort?

I know what the militia was when 2A was written. I think I have explained that. It was primarily made up of civilians for the purpose of a nat'l defense. No such animal today except a few who cling to the concept thinking that it is relevant to keep the gov't in check. Cliven Bundy and his group would qualify. The militia was a para military group by modern definition and needed as I referenced the war of 1812.

http://www.npr.org/2017/07/11/53669...or-4-defendants-in-cliven-bundy-standoff-case

To that end militias have no bearing on 2A today other than maybe as a defense in court.

I support RKBA. What I don't support is peoples insistence that state legislators and congress can't pass laws to regulate firearms based on 2A. To do that would mean that states and congress have no power to regulate anything and everything has to remain static according to the old testament which is what the BOR is in effect when compared to everything that has passed since the country was founded.

 

[grampajack]

It may be. It may not be. But you won't find the answer in the Second Amendment, because it doesn't define "a well regulated militia".

Like I've been saying this whole time, the militia is already defined in Art. 1. That's why they didn't feel the need to redefine it in the 2nd Amendment.

 

[grampajack]

I know what the militia was when 2A was written. I think I have explained that. It was primarily made up of civilians for the purpose of a nat'l defense. No such animal today except a few who cling to the concept thinking that it is relevant to keep the gov't in check. Cliven Bundy and his group would qualify. The militia was a para military group by modern definition and needed as I referenced the war of 1812.

http://www.npr.org/2017/07/11/53669...or-4-defendants-in-cliven-bundy-standoff-case

To that end militias have no bearing on 2A today other than maybe as a defense in court.

I support RKBA. What I don't support is peoples insistence that state legislators and congress can't pass laws to regulate it based on 2A. To do that would mean that states and congress have no power to regulate anything and everything has to remain static according to the old testament which is what the BOR is in effect when compared to everything that has passed since the country was founded.

How can you possibly say that Cliven Bundy is a militia? What part of Art. 1 supports that assertion???

 

[LawHoc]

Much of the discussion re the militia clause may be academic. In Heller, Justice Scalia believed that "the right of the people to keep and bear arms shall not be infringed" honored a pre-existing right; that the Second Amendment didn't confer the right, it preserved it. For Scalia, the 2d Amend was not necessary because TRBA was a right a free man had naturally, with or without the constitution.
(Note: FWIW, I was not crazy about much of Scalia's methodology either -- he reached for much, and brushed aside much. The dissenting opinions were not much better or much worse.)

 

[CoalTrain49]

How can you possibly say that Cliven Bundy is a militia? What part of Art. 1 supports that assertion???

Cliven Bundy wasn't a militia, he was a rancher at odds with the fed, but his son and the group that he invited to his ranch are. At least that's what the media calls them and that's what they call themselves. I didn't give them that moniker.

 

[caribou]

The People Are the Militia. You can argue all you what, and some people do, because your here for an Argument, grandpajack, and taking both sides of the fence to keep the argument up. The fact is the 2nd A is what it is, its the Peoples Right to Bear arms, uninfringed, and those citizens when assembled are the militia.
It is what it is, even though you may not like it, I think you've lost any argumentative ground by ignoring facts and precedents and you simply want to argue.

Thats not why Im here, I dont know about the others, so I bid you 'good luck!'

 

[grampajack]

The People Are the Militia. You can argue all you what, and some people do, because your here for an Argument, grandpajack, and taking both sides of the fence to keep the argument up. The fact is the 2nd A is what it is, its the Peoples Right to Bear arms, uninfringed, and those citizens when assembled are the militia.
It is what it is, even though you may not like it, I think you've lost any argumentative ground by ignoring facts and precedents and you simply want to argue.

Thats not why Im here, I dont know about the others, so I bid you 'good luck!'

You do realize what you just did is the intellectual equivalent of knocking over the checker board. Weak sauce, big time.

Cliven Bundy wasn't a militia, he was a rancher at odds with the fed, but his son and the group that he invited to his ranch are. At least that's what the media calls them and that's what they call themselves. I didn't give them that moniker.

The media doesn't know its hind quarters from a hole in the ground. They can call antifa a militia if they like, and it doesn't have crap to do with this thread.

All we're interested in here is the militia as it's defined in the Constitution.

 

[barnbwt]

I haven't seen any huge support to repeal NFA or GCA, have you? If it's such a pressing issue like prohibition was, why are we not seeing people demanding change.
You keep referring to "the people". Are those people living today or are those the people that were around 200 years ago. The system has to be dynamic enough to serve the people today.

https://www.congress.gov/resources/display/content/Most-Viewed+Bills You may have missed it, but the Hearing Protection Act has ranked among the 10 most viewed bills on congress' docket website since I've been paying attention in February. We have the president's kid and the NRA pushing for this, along with a healthy gun industry and even the military (indirectly). There are a ton of congressional cosigners and advocates on board. More silencers have been sold in the past several years than then entire preceding century, and they can be used legally in more places in America than has been seen in many decades. The only lack of support is at the tip-top leadership end, and that's because those players are greedy and want to try and string us along as far as possible (both to solicit votes/donations, as well as to essentially coerce us into supporting their other causes by holding the bill hostage)

Yes we are the same, although there is a very specific and fairly modern belief system that is founded on the idea that human nature can be changed for the better if only it can be restrained & redirected sufficiently. Oddly, history seems to suggest that more and more control & manipulation become required to manage this malleable human nature wherever the ideology takes hold, and whatever human nature manages to evade those barriers all the more violent.

It's funny, I don't recall seeing any huge support or effort to outright repeal or modify the RKBA through the legitimate democratic means our system provides for. Just hopes & prayers for a judicial override or legislative workaround passed by a slim maybe-majority at night. People must be happy with things the way they are, but it seems the political leaders clearly aren't, hence all the scheming. The forces that seek to thwart the will of the people to effect change to benefit themselves often speak of a need to 'adapt' the functioning system to the 'new times.' Paul Harvey was absolutely right in his observation about "times like these."

TCB

 

[barnbwt]

Cliven Bundy wasn't a militia, he was a rancher at odds with the fed, but his son and the group that he invited to his ranch are. At least that's what the media calls them and that's what they call themselves. I didn't give them that moniker.

Bundy raised a posse; a bit different than a militia, in that there was no organization to it whatsoever, and was entirely ad-lib-ed on the field of battle, so to speak. Had an organized Nevadan armed force composed of locals trained to address local disasters & uprising decided to side with Bundy against the federal government at the direction of the governor, that would be more like a militia resistance. The possibility of such a need one day arising was why the states were supposed to display some level of diligence in maintaining & regulating their militia (their security as a free state depending on it, after all)

"The media doesn't know its hind quarters from a hole in the ground. They can call antifa a militia if they like, and it doesn't have crap to do with this thread."
Precisely. Loosely banded men waging impromptu violence is more like a riot (highly coordinated professionals being funded by a foreign national to foment violent civil unrest on American soil in an attempt to weaken the government is something different as well)

TCB

 

[barnbwt]

All we're interested in here is the militia as it's defined in the Constitution.

Since the militia were distributed among the various colonies and cities within them, and existed prior to the revolt, and were rather diverse from the get-go, and this diversity was clearly respected by putting states in command of their upkeep & direction...why would you expect a precise, as opposed to broad, definition of what the militia is in the document outlining the duties and barriers on the federal government? I'd expect you will find more exacting definitions in the state constitutions, as well as very similar reproductions of the US Bill of Rights amendment regarding civilian firearms ownership (talking the original 13 states, here; most of them, particularly the most influential ones, were very similar in their explicit adoption of the RKBA as a restriction on state law)

TCB

 

[Wisco]

The people are the militia. And it's even been codified in federal law. The people are the the unorganized militia. The organized militia is the national guard.

https://www.law.cornell.edu/uscode/text/10/246

(a)
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b)The classes of the militia are—
(1)
the organized militia, which consists of the National Guard and the Naval Militia; and
(2)
the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

 

[CoalTrain49]

All we're interested in here is the militia as it's defined in the Constitution.

Or what congress says it is. ^^^ More relevant information.

Why can't the unorganized militia be the group that rallied around Cliven Bundy? They were pretty unorganized. If it looks like a duck, swims like a duck and quacks like a duck, then it's probably a duck.