Reply #13: Like shooting fish in a barrel. [View All]

[hansberrym]

1. The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes. Instead, it protects the possession and use of guns only in service of an organized militia.

- there is no "ONLY in service of an organized militia" clause.

- nor is there even an "in service of an organized militia" clause.

- the exclusivity which DC attributes to the text in not warranted as there are no qualifiers on "the right of the people to keep and bear arms" in the actual text -though DC repeatedly adds such qualifiers "as part of a well-regulated militia" and "in service of an organized militia".

- History tells us that even those on the alarm or call lists (meaning those who are not in actual service but liable to be called) had a duty to keep arms. Again see US v. Miller discussion of various state militia acts. See also Fed #29 which DC references as example of what a well-regulated militia meant to the framers, but which DC ignores when seeking to know who was to be armed. It then becomes an exceedingly silly argument to claim that the right to keep arms is less broad than the duty.

- See VA militia act cited in US v/ Miller in which "the militia west of the blue ridge" were not required to keep muskets but could use rifles to satisfy their miltia duty to keep arms. This is a clear accomodation and recognition that those living west of the Blue Ridge and thus likely to be earning their living as hunters could use those same private arms which they used for private purposes when called to militia service.


The first clause—“ well regulated Militia, being necessary to the security of a free State”—speaks only of militias, with not a hint about private uses of firearms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes.

- The first clause consists of a noun and a present participle which modifies that noun. The first clause is Absolute Construction and can not be said to qualify the subject of the main clause.

- A select militia or a disarmed militia would be antithetical to what the founders intended. See discussion of militia in US v. Miller.

- The Second Amendment protects the right to keep and bear arms, not the right to form armed groups.


The second clause—“the right of the people to keep and bear Arms, shall not be infringed”—equally addresses the possession and use of weapons in connection with militia service. In 1791, “Arms” and “bear Arms” were military terms describing the use of weapons in the common defense, and the word “keep” was used in connection with militiamen’s possession of the arms necessary for militia service.

- But "bear arms" was also used in reference to self defense and private uses such as hunting in late 1700s and early 1800s discussions of the right to bear arms, which is the proper context for examining what those words mean in the Second Amendment. DC argues for an exclusive meaning, not merely that "bear arms" was used most often in reference to service in the militia, but that such is the ONLY plausible meaning. They do this by referencing only discussions of militia service rather than "the right to bear arms". Such an interpretive method strips the words "bear arms" from the context of the protection of a right. I don't think anyone would be silly enough to claim that the Bill of Rights, or the Second Amendment specifically, does not concern rights.

- In terms of logic, the existence of counter examples is enough to disprove the claim of exclusivity.

- While it is certainly true that the militia acts (see US v. Miller) required those enrolled to "keep" arms, it is almost laughable to suggest that that is the only possible meaning. Blackstone lists the right to keep arms as a right of citizens for self protection.


Taken together, the two clauses permit only a militia-related reading. To conclude that the Framers intended to protect private uses of weapons, the majority below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second.

That the first clause provides context and a ratioanale for the guarantee that follows does not render the first phrase "extraneous" or meaningless. DC sets up a false dichotmy in which the first phrase is either "extraneous" or must be a qualifier on the right that follows. That simply ignores the notmal fuction of Absolute Construction which is to provide justification and context to the main clause.

Nor is there any tension in a right to keep arms for ones own defense and other private uses as well as a right to bear arms in defense of oneself, the state, or the United States. The imagined tension comes from an insistence that the amendment is exclusively concerned with militiary matters -but such tension flows from the conclusion rather than the text and DC's argument here is circular.


History confirms the District’s reading. The primary concerns that animated those who supported the Second Amendment were that a federal standing army would prove tyrannical and that the power given to the federal government in the Constitution’s Militia Clauses could enable it not only to federalize, but also to disarm state militias. There is no suggestion that the need to protect private uses of weapons against federal intrusion ever animated the adoption of the Second Amendment. The drafting history and recorded debate in Congress confirm that the Framers understood its military meaning and ignored proposals to confer an express right to weapon possession unrelated to militia service.

The facts are at odds with DC'a assertions: the very first commentary (Tench Coxe) on what became the second amendment spoke of protecting the right to keep and bear "their private arms" -and said nothing of protecting only state militias or only the arms of those persons enrolled in the militia.

Fed 46 undercuts both asertions. Madison begins by reminding the enemies of the constitution that the relative power of the Federal and State governments is not the main concern. Later in that essay Madison says the people of Europe living under tyranny might "throw off their yokes with this aid alone" meaning having the avantage of being armed but w/o subordinate governments to organize the resistance -so it can hardly be maintained that Madison thought the people would be armed ONLY through state organized militias.

Hamilton in Fed 28 makes the point even more bluntly -that the people might need to take up arms to protect themselves from EITHER the Federal or State governemnts.