Why didn't the Founders write the 2nd this way...

[hugh damright]

why would they include that garbage about militias in the first place?

There was a time when we have British Troops here, supposedly to protect us, but really to dominate us. We declared that a standing army in times of peace is a danger to liberty, and that the proper defense of a free State is a well regulated militia composed of the people of that State. It is not "garbage", it is a principle of free government.

A lot of libertarian minded folks wish that the Second Amendment just regarded a personal right, but I think they miss the point. We had the individual right under King George. And again, during reconstruction, we had individual arms, and military rule. If the Second Amendment only said "the individual RKBA shall not be infringed", then it might protect our arms, but not our free States.

a free state (a body politic)

A "state" is a "body politic". A "free State" is a body politic with free government. The object is not only to secure our States, but to secure free government at the State level.

right of the people (right given by nature and nature's law, not given by government)

What dictionary says that rights are given by nature and not by government? Isn't there is such a thing as a right given by government, or at least associated with government, such as for instance the right to a trial by jury? When Madison proposed the USBOR, he said "Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community". So, again, which dictionary is it that defines a "right" as something which is given by nature and not by government?

 

[Ranger Rog]

Here is why those wise old, gray haired, dead white men wrote it the way they did, and why the left has not been able to over turn it. They did a brilliant job of wording that is pretty much bullet proof

"Article II. 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."

Standing alone, "[a] well regulated Militia, being necessary to the security of a free State," is an incomplete thought. By itself, it does not express an idea and needs additional information to give it meaning. This part of the Amendment is the dependent or subordinate clause. Thus, the militia clause depends on the existence of the right of the people to keep and bears arms.

In the alternative, "the right of the people to keep and bear arms, shall not be infringed," standing alone, is a complete thought. This part of the Amendment is the independent or main clause. By itself, it does express an idea and does not need any qualifying information to give it meaning. Thus, the right of the people to keep and bear arms does not depend on the existence of a State militia

 

[Zundfolge]

Why didn't the Founders write the 2nd this way...

It doesn't matter HOW the 2nd was written, those that wish to disarm the populace will just twist the language until they get what they want ... thats why "well regulated" now means heavily controlled by government.

If they'd have written the 2A to say; "The right of the people as individuals to keep and bear any weapon available for self defense, national defense, to provide sustenance or for sport and recreation shall never be remotely called into question by federal, state or local governments." we'd still have antis twisting that language to mean something it didn't (they would probably twist the words "people as individuals" to mean state governments or something).

 

[hugh damright]

Standing alone, "[a] well regulated Militia, being necessary to the security of a free State," is an incomplete thought. By itself, it does not express an idea and needs additional information to give it meaning.

I disagree. It might not be grammatically complete, but can't we see beyond that and detect a complete declaration of a principle of free government? In 1776, Maryland's Bill of Rights declared "That a well-regulated militia is the proper and natural defence of a free government". Is that an incomplete thought?

 

[sqlbullet]

right: "a claim of general or natural truth"

The above was derived from assembling the definitions of right (a moral claim) with the definition of moral (general truth) and natural (Established by moral certainty or conviction).

The phrase "right of the people" is used here and other places to denote rights which are inherent to existence - natural rights. In this instance, it is the right of sentient being to create and use tools. That such inherent rights exist, and are not bestowed is the foundation of the Declaration of Independence.

Other rights (right to trial, as you site) are established by compact. However, to say that all rights are established by the sovereign is to return us to medieval forms of government in which the peasant was recognized to be wholly subject to the crown.

 

[TallPine]

Because without the "militia" part someone might have construed it to mean that we don't have an un-infringed right to keep and bear military grade weapons, such as full-auto "assault" rifles

 

[Cosmoline]

The debate at the time was tied up with concerns over protecting the militias and preventing usurpation of power by a tyrant with a standing army. These days personal protection is a greater concern for most people, but the shifting justification shouldn't nullify the right.

Some of you don't seem to understand that the militia clause is an anchor around the waist of the RKBA. If you link the clauses, you doom the Second to obscurity. While in theory being a militia member might give you a RKBA under the group rights theory, the feds and the states have greater rights to DISARM their militias or even DISBAND them. Indeed only a handful of states even have traditional non-federalized militias anymore.

 

[Cosmoline]

"That a well-regulated militia is the proper and natural defence of a free government". Is that an incomplete thought?

No, because it says "is" instead of "being." The Second uses the gerund and the operative verb is actually "SHALL NOT BE"

 

[zxcvbob]

The clause about militias makes it obvious that the arms being protected includes privately-owned military weapons. Otherwise, the politicians would say the only right we have is to "duck hunting" guns.

It's like all the flowery "Whereas's" at the beginning of government proclaimations; they have little-or-no legal weight, but they do help frame the original intent.

BTW, I think it is significant that the 1st amendment guarantees the right to petition the government, and the 2nd preserves the means to do so if the government refuses to listen. (read about the "Battle of Athens, 1946" sometime.)

 

[lanternlad1]

It doesn't matter how you write it, if they want to, the gov't will twist it, or flat out ignore it, like DC did for 30 years. DC's attorney even argued before the court that "keep and bear arms" was a MILITARY term, and therefore meant that the Second is collective.

 

[BMacklem]

Although I was a tad upset with Guras' arguments about how it is reasonable to restrict "machine guns, and plastic guns" I was ultimately happy with how the SC seemed to react, and it also seems as though they are interested in a broader ruling than just "Is the DC handgun ban unconstitutional.".

I got the feeling that they wish to offer a broader ruling on what the 2A means from the time of its' inception, and what it means today to clear up any misunderstanding in the judicial sense.

I can only hope that they see things the way the founders intended it, and also have some sort of future-proofing in their ruling for things to come.. i.e. high energy discharge types (Lazer/phaser/what have you) for any sort of personal arm.
That would definately make the day grand when they release their ruling on all this.

Any thoughts on the future proofing for us?

 

[macadore]

IMO, the militia reference emphasizes the role of the citizen soldier. It means that we should (not can) all own firearms. We should be trained and be ready to use them if we or our community is threatened. Unfortunately, we have turned that role over to the government.

 

[RobXD9]

How many of you take the militia reference in the 2nd Amendment as a direct reference to Article I Section 8?

A1S8 reads...
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;

So basically the founders, who had just fought for years for our freedom wrote a law that would give Congress the right to disarm the militia at will. In other words, the government they were creating could do exactly what the British crown tried to do to the founders - disarm and enslave them.

So our founders draft the Article of the Fourth to read...

A well-regulated militia, necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

In other words - "Yes, we stand by what we wrote in Article I Section 8. BUT - to ensure that Congress is kept in check by We the People, we're going to make sure that We the People are well armed."

It may be sacreligous to say this, but I sort of agree with Penn & Teller in their Bull***** episode. The 2nd Amendment isn't about hunting or sport shooters. And it's not about concealed carry for personal defense.

The 2nd Amendment was written to guarantee that We the People would have the means to overthrow a tyranncial government should one ever rise in America.

Am I off base?

Robert

 

[Sunray]

In 1790, the U.S. Constitution didn't apply to everybody. "The People" consisted of about 10% of the population. Just to be able to vote, you had to be a white, male, land owner. Catholics, Jews, Quakers and others are barred from voting. Asian immigrants could not become citizens. Your Second Ammendment didn't exist in 1790 either. It wasn't passed until 1792.
"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." Still seems pretty clear though.
This is what the term 'militia' is defined as, according to Cornell University's U.S. Code collection as of Jan. 2, 2006.
"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."

 

[sailortoo]

It certainly is instructive to read the various views of what a single, very important, sentence says and means. What it means seems to depend on how any one individual interprets each word, and its' context. I have always understood the words "free State", as used in the Constitutuon, BOR Article II, as refering to "a state of freedom", not a politically designated area (State of New York, State of Maryland, etc.). That view takes the various states out of the equation, and it becomes a "state of being". Language and meanings change over time, and tho the words may seem the same, the idea behind the use of a particular word may change drastically (think of the use of "Gay" today, and (only) 60 years ago - totally different use of the same word). And, as to the various states, or the feds "disarming" the population, as an earlier post stated, the 2 Amendment precludes that in two ways; by clearly stating "shall not be infringed" it stops the Congress from disarming "the People", and the states may not disarm (in theory, anyway) their population, because the feds would not then be able to exercise its' right to call up a citizen militia (self armed). Just think, if the 2 Amendment had TWO sentences, wouldn't that be a circus of word parsing!
sailortoo

 

[Zoogster]

They didn't write it that way because that was not what they meant. That would be like writing a lot for nothing, that was appearant and obvious. It is also obvious to any person that reviews the well documented discussions they had at the time.

What they wrote was that the ability of the people to have all the tools, including arms, necessary to assemble into organzied groups of rebels shall not be infringed.
That was much more controversal than the right to just have the arms, as was already covered under English Common Law.
The right to bear arms was guaranteed in the 1689 Bill of Rights, in which the new King William of Orange enshrined a series of rights for his subjects.
One only need look back to the events of the Magna Carta or even thier recent rebellion from England to understand why the founding fathers felt it needed to be taken a step further.

So if written today it would instead mention becoming "insurgents".
Yes it is very radical, and is what they meant. They wanted to insure the people's right to arms was never infringed, so that if necessary they could band into random local bands, or militias/insurgents and stand up to tyranny when necessary.
That is why the term militia was important in the 2nd. It wasn't about keeping a firearm capable of standing up to the local thug, it was about keeping arms capable of standing up to even the military troops of tyrants.

So I repeat, English common law already provided for the right to arms, the 2nd took it a radical step further and said the right to arms could not even be reasonably restricted or "infringed" upon in order to insure the preservation of the ability of the citizens to become insurgents when necessary. Something no kingdom in the world previously had said. Can you imagine a king telling his subjects they could possess arms in order to kill him or his men if they needed to?! It was an unprecedented right, and so important that it was second only to the first amendment, protecting people's right to discuss and believe whatever they wanted to.


At the same time they believed the government's job was to fight those insurgents when they rebelled, as was seen in various rebellions Washington put down. So they were not saying people would not face consequences for becoming insurgents, just that they should never have restrictions placed on the tools that enabled them to do so otherwise the balance would be compromised, and the people would be vulnerable to tyranny.
Yes it is complex, almost contradicting in today's black or white desires. However they did not picture governments as perfect, and acknowledged that even the best could at any time become corrupt and self serving. So the population needed to be perpetually armed and capable of taking on the government when necessary.

So it really is not about the right of individuals to have arms alone, it is about the right of individuals to never have thier ability to keep and bear (not just own, but use) arms infringed on in any way for a very specific purpose: To be capable of fighting tyranny with force, both in the form of a foriegn invading force, or agents of the people's own government.

So stating the right of individuals to keep arms would not have been unique at the time, even Englishmen could legaly carry a pistol in thier pockets, and many gentlemen did just that.
In fact england did not have that right restricted until 1870, when they started requiring people to obtain a CCW license to legaly carry a pistol outside the home.
33 years later in1903 England passed a law restricting "drunken or insane" people's right to be armed. Sound familiar? It should, the exact thing today is written as "...ever been commited to..." "...unlawful user of or addicted to..." on the 4473 form.
17 years later England had a law passed along the lines of "unfitted to be trusted with a firearm" allowing police to deny such people the right to arms.

So you see at the time England allowed anyone to be armed, and only later did the go down the same road we are going down now before arriving at thier gun free utopia. So why would the founding fathers, who still used English Common law which already protected the rights of individuals to be armed specificly state that same thing again?

They wouldn't and they didn't. They said it could not be infringed upon so the people could become insurgents. Something totaly new and different, and not previously stated in Common Law.