Try Reading the Entire Second Amendment

[riqster]

http://bluntandcranky.wordpress.com/2012/12/21/second-amendment-read-the-whole-thing-sometime/

[mikeysnot]

1. I point that out on a regular

basis. The gun nuts always gloss over that "well regulated militia" part...

[Paladin]

3. Fat Tony Scalia Gave Them Backing For That Gloss-over Attitude. (nt)

[Vogon_Glory]

2. See Also Paul Fussell's A Well-Regulated Militia

I would also suggest that interested parties read Paul Fussell's essay "A Well-Regulated Militia." Fussell argues that gun ownership could be curtailed by a close and literalist reading of the Second Amendment, meaning that gun owners would have to join a militia and perform all the regular military drudgery such as drill, string barbed-wire, and all the other delights of life that most reservists have to perform.

I highly recommend reading it. Paul Fussell may not be wholly PC hereabouts, but his essay "A Well-Regulated Militia" ought to infuriate most Faux Noise Propaganda, as well as Freeperstanis and folks who like Red State.

[Romulox]

4. We've all read it. It doesn't really resolve the argument. nt

[jmg257]

5. Pretty simple actually. I don't know why anyone would think it doesn't just mean what it says.

It identifies the necessity of a well functioning Militia. It secures the right of the people to keep and bear arms.

The Militias let We the people avoid the dependence on that bane of liberty, a large standing army...because a large standing army is THE source of power of a tyrannical government.

Besides ensuring the right to keep and bear arms (individually), it was imperative that the people themselves make up the Militias.
Who better ("necessary...".) to secure the liberties of the people then the people themselves? The Militias of the Several States, made from the body of the people, were entities that exisited long before the Constitution, and especially under the Articles of Confederation. In the Constiution they were given very specific very important roles in securing our freedom.

But the Congress was given the powers formally left to the states - to, not only provide for how the state Militias would be called up for federal use, but to dictate how those exisiting Militias were to be organized, trained and armed (the people would supply their own arms to avoid govt control). Why? So they would be most effective...our freedom depended on it! (note congress was NOT given any power to create OR re-create the Militias as a part of the federal military).

Bottom line - the 2nd amendment is to ensure the government can not disarm the people. It secures the right of the people - individually and collectivelly - to bear arms. Certainly 'self-defence' and 'the taking of wild game' were a given, just as much as the common defence.

"well-regulated" is WHY the Congress was given the powers of organization and training...The Militias being well-trained, well armed and, due to conformity - well-functioning, would be assured (they weren't under the AoC) - it was now the law of the land. And because Congress was given that power is WHY the security of the right was enumerated.


This is the amendment as 1st proposed by Madison. It clearly shows the intent:

"The right of the people to keep and bear arms shall not be infringed; a well
armed and well regulated militia being the best security of a free country:
but no person religiously scrupulous of bearing arms shall be compelled to
render military service in person."

Of course the militia declaration in the 2nd has been obsoleted by the people due to our acceptance of a large (HUGE) standing army, and the nationalizing of the militia via the National Guard. By 1900, the level of effectiveness of the Militias of the Several States in fighting our wars of conquest left something to be desired.

Just as well - if the Militia declaration still held much merrit, all the people would have access to to all the current arms of the military - M16s, M4s, M9s etc. Also things like gun free zones, municipalites and cities would take a big hit.

[riqster]

10. People do love to place drafts over final editions

My reply is this: had they wanted to keep the draft version, they would have. But they did not.

The Madison draft is not the law of the land.

[jmg257]

14. NO argument there.

But read the one that is (which is readily available and not worth posting), you'll see that pretty much other then the religious exemption, it says the same thing, and so secures the same right.

[X_Digger]

6. I prefer Sanford Levinson and Laurence Tribe (liberal legal scholars)

http://www.firearmsandliberty.com/embar.html

{The Second Amendment's} central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by Section 1 of the Fourteenth Amendment against state or local government action.

Laurence H. Tribe, 1 American Constitutional Law 902 n.221, 3d ed. 2000

[riqster]

12. Tribe is a smart cookie, to say the least

But I do not see how his statement invalidates my argument. A regulated militia need not be controlled by the Feds or the States.

If you look at the people who are stockpiling battle weapons, the ones we have to worry about are the loons that think Uncle Sam is coming for them in the black helicopters. Such people don't even have well regulated sanity, much less membership in a cohesive militia force.

[X_Digger]

15. To have a militia is the reason for protecting the right.

That does not limit the right to that single purpose.

If I said, "I'm out of soda, I'm going to the store." -- would you infer that stores only sell soda? Or that I'm only going to buy soda?

[riqster]

20. Not a valid analogy

Had you posited that the law said stores may only sell soda, your argument might have some merit.

[X_Digger]

22. It's a valid english statement, but let me give you another, closer one..

"Consumption of pizza being necessary for late-night study sessions, the right of people to grow and harvest tomatoes is protected."

Would that mean that tomatoes are only to be used for tomato sauce?

[wtmusic]

27. More fallacious reasoning

Your justification of the right to grow and harvest tomatoes is based solely on the assumption that consumption of pizza is necessary.

There is no implicit justification for any other use, unless we incorporate our own prejudices into the argument as well.

[X_Digger]

28. Lol, don't hurt your back twisting like that.

So were such a law passed, you'd say that tomatoes are only to be used for pizza sauce? And that all other uses are not protected?

This should be good.

[wtmusic]

30. Yes, but of course the law wouldn't be passed

except in some alternate gun-nut universe.

[X_Digger]

31. *snort* It wasn't a serious law, of course.

But somehow I doubt your sincerity in asserting that you'd support such an interpretation of that made-up amendment.

[wtmusic]

34. Ha ha, of course not.

I wouldn't support it, but obviously that's not what I was calling you out on.

It was your attempt to equate the gun controversy with one regarding something benign and harmless. So transparent. Ha ha.

[X_Digger]

35. Do analogies frequently puzzle you?

I changed the charged language, because we're talking about the grammatical structure of the phrase. In that context, it doesn't matter that the item or the right discussed is.

[FreakinDJ]

7. Those pesky little commas make ALL the difference in the World

but I don't think you want to hear that

[riqster]

9. Not a problem

Please explain.

[X_Digger]

11. Arguing about commas in the second amendment..

.. is like arguing about the placement of bolts on a stop sign.

[cali]

8. sorry, like the rest of the Constitution, it is what the SCOTUS says it is.

[-..__...]

17. Shhhh...

there's too many people around that have a hard time dealing with reality.

[wtmusic]

13. You haven't even begun to parse the words "militia" or "regulated"...

the NRA says those words are interchangeable for pretty much anything you want.

[jmg257]

19. Thats's a good thing...

Last edited Fri Dec 21, 2012, 12:36 PM - Edit history (1)

If the militia clause held more merrit, the people would have access to all kinds of military grade firearms. For instance, if Miller had been carrying a BAR instead of a sawed-off shotgun, restrictions on full-autos would be unconstitutional due to their military usage..

""In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."


You would also be hard pressed to justify restricting the people from keeping and bearing them and most other arms - where ever they live - due to their role as members of the militia.

[riqster]

21. Thank goodness, the NRA is not the S.C.

At least, not completely. And not yet.

[1-Old-Man]

16. This discussion is moot; the Court has ruled that the right is to the individual

And if the right is to the individual then the right to bear arms is just as strong as freedom of religion.

[wtmusic]

24. It's not moot at all, unless you mean "any arms" to "any individual".

An interpretation which would be insane.

[byeya]

18. For over 200 years, it was not held to be a right. So if you throw in your lot with the Filthy Five

of the Supreme Court, you'll like what you hear.
If one of them retires, we can reverse this terrible decision as well as the Citizens United decision.

[X_Digger]

23. Err.. it was.

From US v Cruikshank (1876)-

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government... It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection...
...
The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called..."internal police."

Of course the statement about congress is moot after the 14th amendment and the Slaughterhouse cases brought us 'selective incorporation'.

[wtmusic]

25. So was slavery.

Surprise...shit changes!

[Lizzie Poppet]

26. Change is what it would take.

As in a constitutional amendment revising the language. As it stands, the "individual right" argument not only has legal precedent behind it now, it's also the only linguistically sound interpretation.

[wtmusic]

29. The scope of the right is indisputable, the purpose is not

Giving blacks 3/5 of a vote also made sense in 1787.

[Rex]

32. Okay, now what?

.

[riqster]

33. We need to deal with the current reality

Instead of imposing our personal interpretations on it. That means everybody on all sides of the issue, and it means the Felonious Five.