Regarding that pesky “well regulated Militia” in the 2nd amendment, what exactly did it mean?

40 posts / 0 new

Endless debate rages over exactly what the Framers meant by the term “well regulated Militia” in the 2nd Amendment.

To simplify matters somewhat, let’s consider the two opposite positions of the debaters:

The more liberal (the word “liberal” being used here in the sense of generous or non-restrictive) side of the argument holds that “well regulated” should be taken in the sense that a clock that keeps good time is “well regulated”.

This same side also argues that “Militia” referred to all the able bodied men of military age, which at the time the 2nd amendment was written would have been about ages 16 or so through age maybe 45 or a little older, and so could have potentially served in the Militia. (At that time there were no hard and fast rules regarding acceptable enlistment ages in militia or armies.)

The more conservative (the word “conservative” being used here to mean as restrictive and narrow as possible) side of the argument holds that “well regulated” refers to codified laws, rules, and regulations as propagated by the government (which could be at either the state or federal level).

This same side also argues that “Militia” referred to only those individuals who were actually active in the Militia at any given time (rather than the entire mass of able bodied men who were eligible to do so).

Trying to understand the original meaning or true intent of the Framers when they wrote the U.S. Constitution, including the 2nd amendment, is a form of Originalism, which takes on two basic forms:

· The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.

· The original meaning theory ( which is closely related to textualism), which holds that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary, everyday meaning of the text to be. (Note: It is this latter view of the Constitution with which most Originalists, such as Justice Scalia, are associated.)

Unfortunately, many of those who interpret the 2nd amendment from an Originalist viewpoint (especially gun rights advocates who think the 2nd amendment gives them an unfettered right to own and carry firearms of almost any type), apparently want the best of all possible worlds:

1) First they tell us that the 2nd amendment must be interpreted literally, and that every single word that the Framers wrote means exactly what it says (an Originalist interpretation),

2) Then they tell us that they know what the Framers meant because the words in the 2nd amendment are plain and clear for all to see,

3) But (and this is a big “but”) they mix together both modern 21st century definitions and meanings in order to make the 2nd amendment come out the way they want it to!

If one is to interpret the 2nd amendment from an Originalist viewpoint, isn't it fair to ask that any erstwhile interpretation of said amendment stick to the circumstances and social context the Framers found themselves in, including not just what they wrote regarding this issue but their own history viz a viz the use of the colonial militia in the United States? (In other words, go with an Originalist interpretation or take a more modern approach to the 2nd amendment, whatever you like, just don't mix the two together in such a self-serving manner, or at the very least recognize and admit to what you are doing).

So in order to better understand the historical and lexicological context the Framers found themselves in, as well as understand what they intended the term “well regulated” to mean, let’s take a brief look at the history of militias in the early United States, both pre-revolutionary and post-revolutionary.

First, we want to make sure we clearly understand what a militia is.

mi·li·tia n.

1. An army composed of ordinary citizens rather than professional soldiers.

2. A military force that is not part of a regular army and is subject to call for service in an emergency.

3. The whole body of physically fit civilians eligible by law for military service.

[From the Latin term for warfare, military service, soldier.]

The American Heritage® Dictionary of the English Language, Fourth Edition

So broadly speaking, the word militia refers to an army or other fighting force that is composed of non-professional fighters; citizens of a nation or subjects of a state or government that can be called upon to enter a combat situation, as opposed to a professional force of regular soldiers (or, historically, members of the fighting nobility). Therefore, the word militia could be used in reference to:

· Defense activity or service to protect a community, its territory, property, and laws.

· The entire able-bodied population of a community, town, county, or state, available to be called to arms.

· A private, non-government force, not necessarily directly supported or sanctioned by its government.

· An official reserve army composed of citizen soldiers. In the U.S. these are most often referred to as the Army Reserve and National Guard, but other state defense forces could meet this definition as well.

Of course, there was no official reserve army (e.g., a National Guard) in existence at the time of the country’s founding, so that reference is out the window.

(Note: I have seen some commentators refer to the National Guard as a “select militia”, but this is an incorrect usage of the term as a select militia is composed of a small, non-representative portion of the population, most often politicized.)

Let’s consider, then, a brief history of militias in the United States, from both before and during the time of the American Revolution.

From Wikipedia (http://en.wikipedia.org/wiki/Militia)

"The history of militia in the United States dates from the colonial era, such as in the American Revolutionary War. Based on the British system, colonial militias were drawn from the body of adult male citizens of a community, town, or local region. Because there were usually few British regulars garrisoned in North America, colonial militia served a vital role in local conflicts, particularly in the French and Indian Wars. Before shooting began in the American War of Independence, American revolutionaries took control of the militia system, reinvigorating training and excluding men with Loyalist inclinations. Regulation of the militia was codified by the Second Continental Congress with the Articles of Confederation. The revolutionaries also created a full-time regular army—the Continental Army—but because of manpower shortages the militia provided short-term support to the regulars in the field throughout the war." (emphasis added)

So other than the fact that use of militias already had a long and well-established history in the colonies well before the Revolutionary War took place, it is interesting to note that the Second Continental Congress (i.e, the Founders) found it desirable to include “regulation of the militia” in the Articles of Confederation.

The question is, why would the Founders feel a need to codify (i.e., formally regulate) the militias?

Part of the answer might lie in the fact that even though the colonial militia had played an important role in the early fighting of the Revolutionary War, many of those leading the war effort, including George Washington, didn’t really think too highly of the colonial militia and/or its members, including the way they handled themselves in battle.

George Washington himself, upon assuming command of the Continental Army (which in 1775 was comprised entirely of militia), said, “All the General Officers agree that no Dependence can be put on the Militia for a Continuance in Camp, or Regularity and Discipline during the short time they may stay.” He would later say, “To place any dependence upon militia is assuredly resting upon a broken staff.”

http://userpages.umbc.edu/~jamie/html/effective_use_of_colonial_mili.html

If I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole; I should subscribe to the latter. – George Washington, September 1776

http://www.historyisfun.org/militia-in-the-Revolutionary-war.htm

Of course, in the later years of the War the militia proved to be of great effectiveness, but this occurred only after Washington et al finally figured out ways in which to utilize and to take advantage of its strengths (e.g., in guerilla warfare, as an ‘early warning system’ for the regular army, etc.) and avoid its weaknesses (e.g., avoid taking the British military on in 'head-to-head' battles).

But the history of the militia in the early U.S., as informative as it may be, does not supply us with an answer as to what the Framers thought a “well regulated Militia” would look like. For that we need to consult what they wrote at the time (i.e., historical documents).

In the endless debate regarding the 2nd amendment, much is made of the Framer’s words written in either support of or opposition to the proposed Constitution (e.g., the Federalist papers, etc.), which is, of course, entirely necessary and appropriate.

However, in this debate the Articles of Confederation are usually, well if not completely ignored given very short shrift. Yes of course the Articles are not the supreme law of the land, but even though they were superseded by the U.S. Constitution they were still quite important in the interpretation of that document, as the Articles formed the original charter under which the 13 separate colonies were able to band together to fight for their independence, and then remained in effect for some time after that independence was finally won.

In addition (and most importantly), while it is commonly thought that the Constitution was written from the ‘ground up’, so to speak, it is interesting to observe how much of the ‘ground’ upon which the Constitution stands was actually laid down by those Articles.

As such, in the attempt to interpret the 2nd amendment from an Originalist viewpoint, perhaps it would be of some value to take a look at those Articles and see if they are not relevant to an Originalist-oriented interpretation of the 2nd amendment.

First some background on the Articles of Confederation.

From Wikipedia, the free encyclopedia:

Articles of Confederationhttp://en.wikipedia.org/wiki/Articles_of_Confederation

"The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that established the United States of America as a confederation of sovereign states and served as its first constitution. Its drafting by the Continental Congress began in mid-1776, and an approved version was sent to the states for ratification in late 1777. The formal ratification by all 13 states was completed in early 1781. Even when not yet ratified, the Articles provided domestic and international legitimacy for the Continental Congress to direct the American Revolutionary War, conduct diplomacy with Europe and deal with territorial issues and Indian relations. Nevertheless, the weak government created by the Articles became a matter of concern for key nationalists. On March 4, 1789, the Articles were replaced with the U.S. Constitution. The new Constitution provided for a much stronger national government with a chief executive (the president), courts, and taxing powers.”

That section of the Articles of Confederation relevant to the discussion of militias is to be found in paragraph four of Article 6 (of the Articles), which states that

“No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage."(emphasis added)

Now take a look at the language used in the Constitution regarding militias.

First, consider the powers of Congress over the Militia:

Article One

Section 8

"To make Rules for the Government and Regulation of the land and naval Forces;

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;"

Next, consider the powers of the President over the Militia:

Article Two

Section 2

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"

Therefore, taking everything in the preceding discussion into consideration, that is the role of militias in the early history of the United States, including both before the Revolutionary War as well as the experiences of George Washington et al with the colonial militia during the War, and then also the parallels between the Articles of Confederation and the Constitution regarding the definition, role, and functioning of the militia, I think it safe to say that the following interpretation of the 2nd amendment, which is from an Originalist perspective, stands on fairly firm ground:

The term “well regulated” in the 2nd amendment actually encompasses both meanings of the term “well regulated” (i.e., “well regulated” as one might consider a clock to be, and “well regulated” as one might think of in a legal framework)!

“Well regulated” meant that State militias were to be well trained (i.e., they were to gather together and practice, drill, etc., on a regular basis) and that training was to be supervised by the States (i.e., the States were to appoint officers who were to oversee that training). (This was the clock-like aspect of "well regulated".)

But at the same time, “well regulated” also referred to the lawful power the Congress (which was comprised, after all, of representatives of the States) was to have over the State militias, that is, Congress was to promulgate and enact a system of rules governing the conduct and/or activity of said militias, as well as the legal authority the President would have over them when acting as Commander-in-Chief. (This was the legal aspect of "well regulated".)

In other words, the use of the term “well regulated” in the 2nd amendment wasn’t meant to be an ‘either-or’, ‘black-and-white’ proposition, it was meant to be an all-inclusive term that covered all possible aspects of the situation viz a viz militias.

Gary the Gun Nut
Joined:
Feb. 3, 2013 3:16 pm

Comments

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason

fognog2's picture
fognog2
Joined:
Jun. 6, 2013 6:18 am
Quote fognog2:

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason

Can you point me the exact section of the Constitution (or BOR) that defines the militia as "the whole people".

Also, when he referred to the "whole people", did Mason mean for this to include slaves?

Gary the Gun Nut
Joined:
Feb. 3, 2013 3:16 pm

It right there, though it's been changed over the years, in the US code. Note that the ages have changed over the years as well as including women now. This being the current, as of 2013, version of this article

10 USC § 311 - Militia: composition and classes

(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.

Stevein Delaware's picture
Stevein Delaware
Joined:
Sep. 26, 2013 7:31 am
Quote Stevein Delaware:

It right there, though it's been changed over the years, in the US code. Note that the ages have changed over the years as well as including women now. This being the current, as of 2013, version of this article

10 USC § 311 - Militia: composition and classes

(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.

Yawn... this hardly is a reflection of original intent, is it? And this unorganized militia is NOT the one mentioned in the Constitution... the one the Second refers to. It's a new creation.

The way to identify the true "well regulated" militia of the Second is to look for one that meets the constitutional requirements that have never been abolished by amendment... state based but can be federalized... etc. And that militia today are the state national guards.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

This unorganized militia is precicely that referred to in the Constitution. See the Militia Act of 1792:
http://en.wikipedia.org/wiki/Militia_Acts_of_1792

Also see the debates on proposed amendments:
http://www.constitution.org/mil/militia_debate_1789.htm
For instance, Virginia — SEVENTEENTH, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

And, see the Right to Keep and Bear Arms provisions of various state constitutions, some of which predate the US constitution:
http://www2.law.ucla.edu/volokh/beararms/STATECON.HTM

jbhale's picture
jbhale
Joined:
Nov. 16, 2013 2:13 pm
Quote jbhale:

This unorganized militia is precicely that referred to in the Constitution. See the Militia Act of 1792:
http://en.wikipedia.org/wiki/Militia_Acts_of_1792

No, the Militia Acts are fleshing out the details of WELL Regulated milita specified in the Constitution. There is no "unorganized" constitutional militia on the federal level at this time. Therefore it can not be what the Second refers to.

Quote jbhale:And, see the Right to Keep and Bear Arms provisions of various state constitutions, some of which predate the US constitution:

http://www2.law.ucla.edu/volokh/beararms/STATECON.HTM

Sure... but who cares since the Second is about the CONSTITUTIONAL militia not any of the older state militias. The Second is created right designed to limit the power of the new federal government... powers that did NOT exist before ratification. If you're looking for any individual right to self protection or property... look to the Ninth.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

When they wrote the second amendment, our founding fathers had just had to fight a war against their own oppressive government. It is INSANE to think that after doing so, that they wrote an amendment saying "You can have guns, but only if your LEADER says so." They just fought, with many people losing their lives to get RID of that kind of government. and this amendment was very clearly a nod to that sacrifice, basically saying "This is how we can help to prevent having to do this again. We want our citizens to be well armed in case the new governmetn tries to do that same as King George and we have to go through this again until we get it right."

jkfan87's picture
jkfan87
Joined:
May. 6, 2014 4:12 am

Interesting review. Do you think that the authors of the 2nd amendment had a clue as to what arms would be like in the future? Nothing in the 2nd amendment allows or dis-allows automatic weapons. No definition of "semi-automatic". What they wrote was based on no knowledge of the future yet so many refer to it as gospel.

Legend's picture
Legend
Joined:
Nov. 27, 2012 7:46 am
Quote Legend:

Interesting review. Do you think that the authors of the 2nd amendment had a clue as to what arms would be like in the future? Nothing in the 2nd amendment allows or dis-allows automatic weapons. No definition of "semi-automatic". What they wrote was based on no knowledge of the future yet so many refer to it as gospel.

The Second is moot. Since 1903 the federal government has been supplying the weapons to the state militias. So is it a violation of the Second that these weapons are stored in state armories?

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm
Quote jkfan87:

When they wrote the second amendment, our founding fathers had just had to fight a war against their own oppressive government. It is INSANE to think that after doing so, that they wrote an amendment saying "You can have guns, but only if your LEADER says so." They just fought, with many people losing their lives to get RID of that kind of government. and this amendment was very clearly a nod to that sacrifice, basically saying "This is how we can help to prevent having to do this again. We want our citizens to be well armed in case the new government tries to do that same as King George and we have to go through this again until we get it right."

Why would the Framers.... actually the First Congress, write every possible right into the BoR? Did the Framers care more about guns than the freedom to fall in love, or not; get married, or not, have kids, or not; build/buy a home... or not?

Such mundane rights were assumed to be protected since the Constitution gave the federal government no power in these areas. So according to the rules of construction implicit at first then explicit in the 9th and 10th, these matters were left to the people or their states.

So why would the Federal government feel a need to specify rights to own a gun for hunting or self-protection over other rights? The Ninth was added, as Madison says, out of greater caution.

The Second deals with the powers the federal government WAS given... and in this case... it's to arm and discipline a new militia system which before ratificatoin were purely state creations. Madison is clear in his intro to the BoR that there are positive rights... rights created to protect against the new powers of the federal government. Any person's right to a firearm is simply unenumerated... and the states were still free to have their militias. But Congress had the power to let them fall into neglect. Read the Militia Acts. http://www.constitution.org/mil/mil_act_1792.htm They could undo anything they wrote into law here... as long as it didn't violate Art 1, sec 8.

And a right is a choice... to own a firearm or not. Militia members were MANDATED to provide their own guns.

It's bizarre that so many claim the Second is more than it states... but then Gun Nuts love the language in the last half of the Second. So to prove how much they respect the Constitution... they negate the first half and remake the Constitution in their image. And the social conservatives on the USSC loathe the Ninth... so they would do anything to NOT find a personal right to a firearm there. As Bork once said... the Ninth is like an inkbolt on the Constitution... beneath which we can't know what the First Congress meant.

Bullshit!

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

Hello Gary,

Interesting read.
I´m from Europe and not knowing that much about the American history I learn a great deal by reading this kind of article.
The reason I found this article in the first place was because I wanted to do some research to understand why so many Americans seem to have an almost religious relationship with the Constitution.

May I ask what kind of background you have, education and so on..?

fabelmik's picture
fabelmik
Joined:
May. 12, 2014 1:27 am
Quote fabelmik:The reason I found this article in the first place was because I wanted to do some research to understand why so many Americans seem to have an almost religious relationship with the Constitution.
Given how dysfunctional it is... this cuts to the heart of the matter. American's are raised to think of themselves as exceptional... and this goes back to founding where, while deeply flawed, the Constitution contained some radical new ideas on government. The problem is that Framer worship has become a civic religion... and implicit in this is we mere mortals dare not mess with their perfect document. In reality three of its remaining core defects are it's antidemocratic, virtually reform proof, and has led to an artificially narrow ideological spectrum. The system punishes those voters who vote their conscience and stray from the two parties and the Constitution's very structure undermines the growth of any democratic reform movement. Citizens soon learn apathy is a reasonable response to what they can't change and as a result the US has some some of the most pathetic voter participation rates in the "democratic" world. But that civic religion remains.

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

I NEVER subscribe to anything because I want as little of me on the net as possible, but I wanted to look up what the true meaning of a "well regulated militia" meant and found this post and remarks wonderful & informative. I would only like to see continued respect for each other in the debate, which almost all of this is.

I have never before had much interest in the debate regarding the 2nd Amendment, because I have never had the desire to own a gun. Generally speaking for myself, I don't think it is the best idea to have a gun in a City. If I lived in a rather secluded place (my grandfather owned 200 acres of forest in upper Michigan & it's where I learned how to fire both hand & shot guns), then I would most definitely own them.

HOWEVER, in the recent (meaning the last several) years, watching day after day, how there's one report after another of law enforcement all over the country, seemingly having been given full reign in using grossly excessive force and discharging their firearms at will, more & more often as a first resort than a last, inflicting severe damage &/or murdering men, women & children who are regularly not armed themselves or simply as a means of stopping someone from running away (which I thought was illegal), I am concerned that the citizens of this country will start to form their own Militia, regulated or not.

As someone mentioned earlier, the original idea of this country was the Militia aka Group of CITIZENS banded together under a "government" they had created, really nothing more than leaders of the "group" to fight against their existing government - at the time, England. It is the idea, constitutional argument or not, that all citizens have the right to protect themselves as a whole should the existing government overstep their position and attempt to remove the rights and/or civil liberties of the people (town, city, county, state or country) in a democratic society. Should the only individuals that have the right to possess firearms are those who are in power over others, sets up a society where its citizens can be completely controlled.

This is one of the many wonderful things about America that separates it from other undemocratic countries. If you look at the countries that forbit or have severe restrict citizen ownership of firearms, you will notice a pattern of absolute power over their "citizens". China, North Korea & Indonesia-illegal to all citizens. China & N.K. penalties include death. England, Wales & Scotland ban almost firearms to citizens. South Korea-only for hunting & the guns must be stored at the Police Station. Japan, Gemany, India, Indonesia, Romania, Thailand & Ukraine-only allowed for hunting with strict application requirements - owning for self-defense is not allowed. Poland & Slovania - only for hunting or proof your life is presently in danger.

Here's a great Wiki link for those more interested in Country Firearm Regulations - http://en.wikipedia.org/wiki/Overview_of_gun_laws_by_nation

This list doesn't boed well for the argument that citizens should be restricted and only law enforcement should have access to guns.

There may come a time that we'll need to forcably put our government in check. I truly pray that never happens. But should it, as it has in the past, we would all be very grateful that we had the right to bare arms. Thank you for this informative post & I hope to stay involved in these and other discussions.

DT's picture
DT
Joined:
Aug. 17, 2014 12:58 pm
Quote DT: It is the idea, constitutional argument or not, that all citizens have the right to protect themselves as a whole should the existing government overstep their position and attempt to remove the rights and/or civil liberties of the people (town, city, county, state or country) in a democratic society. Should the only individuals that have the right to possess firearms are those who are in power over others, sets up a society where its citizens can be completely controlled.
Welcome to the forum.

First, let me say that I own a gun. I don't claim any right from the Second since I've NEVER been part of a well regulated militia. Today that's the state National Guards. My gun rights are simply unenumerated and protected by the Ninth.

Now... this idea you seem to be fond of, and what drives much Gun Nut nonsense has some historical support in the Federalist Papers... at least for a variation of it... that militias, under state control, might be able to serve as an armed counterweight to a professional army at the behest of a federal government run amok. There's nothing about drunken loons hiding out in the hills of Montana having some "right" to take on the government.

The core problem with this theory is the Federalist Papers were designed to sell the Constitution so it would be ratified. All that's was written was not true. This theory was never incorporated into the Constitution nor did it make it into the first Militia Acts of 1792. It persists because Gun Nuts, like the NRA that ignores the militia clause in the Second, are just looking for a legitimate sounding pretense to justify not being regulated.

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

I also begin with "welcome aboard."

The first rejoinder is to point out that history and hagiography are not the same thing, and your romantice version of American history, while very popular, is lacking in the warrants of authority you flash as basic Americanism.

You confuse the spirit of Tom Paine and "the Rights of Man" with our Constitution or the political theory of our Founders. As human beings and actors in history, I give them relatively high marks; but what they passed off to the future was even bigger than what they did, and we have paid for it.

I would avoid the "forceable" reaction to the biggest thug power ever. Think about how to use martial arts and weak points. Don't get crushed by the tanks while you do real political work with non-violent protest and the revelation of the ugly nature of established power. Use the myth against those who use it against us.

drc2
Joined:
Apr. 26, 2012 12:15 pm
Quote ulTRAX:The core problem with this theory is the Federalist Papers were designed to sell the Constitution so it would be ratified. All that's was written was not true. This theory was never incorporated into the Constitution nor did it make it into the first Militia Acts of 1792. It persists because Gun Nuts, like the NRA that ignores the militia clause in the Second, are just looking for a legitimate sounding pretense to justify not being regulated.

I should add that Madison's first draft of what became the Second might have reflected his writings in the Federalist Papers that state militias might be a force to take on a professional army. We see that first draft here:

http://www.usconstitution.net/madisonbor.html

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.

But as we know... or SHOULD know... Congress changed the wording to "free STATE" and that's what was approved.

We also have to think about the purpose of the original Bill Of Rights... these amendments were restrictions on FEDERAL power... and the Constitution gave the new federal government new powers over old state militias. We see that in Article 1:

http://www.usconstitution.net/const.txt

Congress was given the power to

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;

This meant that Congress could let these state militias fall into a state of neglect and this was a threat to the "security" of the slave states. The Second merely says for the security of the states, the white freemen (The "People" NEVER meant everyone) who were REQUIRED to be in the militia could not be disarmed nor preventing from mustering.

If militia members were REQUIRED to own a firearm... it's hardly a "right" in the traditional sense of having a CHOICE to own or not to own. And yes... militia members were required to get their own weapons... it's there in the Militia Acts of 1792.

http://www.constitution.org/mil/mil_act_1792.htm

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

The federal powers over the militias have never been amended away... they are for Congress...

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;

but also include presidential powers

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

We can today EASILY identify these constitutional militias referred to in the Second Amendment by looking for who is subject to the above powers... and that's clearly the State NATIONAL GUARDS... not drunken loons shooting at beer cans thinking they're defenders of the Republic.

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm
Quote DT:This is one of the many wonderful things about America that separates it from other undemocratic countries. If you look at the countries that forbit or have severe restrict citizen ownership of firearms, you will notice a pattern of absolute power over their "citizens". China, North Korea & Indonesia-illegal to all citizens. China & N.K. penalties include death. England, Wales & Scotland ban almost firearms to citizens. South Korea-only for hunting & the guns must be stored at the Police Station. Japan, Gemany, India, Indonesia, Romania, Thailand & Ukraine-only allowed for hunting with strict application requirements - owning for self-defense is not allowed. Poland & Slovania - only for hunting or proof your life is presently in danger.

Are you really equating England with North Korea ?.
Do you actually know anything about how democratic Germany
or Poland is ?.
Why do so many Americans, have so little faith in
"The land of the free" that they expect to fight their own government.

Aldair's picture
Aldair
Joined:
Jul. 31, 2012 8:49 am
Quote ulTRAX:Now... this idea you seem to be fond of, and what drives much Gun Nut nonsense has some historical support in the Federalist Papers... at least for a variation of it... that militias, under state control, might be able to serve as an armed counterweight to a professional army at the behest of a federal government run amok. There's nothing about drunken loons hiding out in the hills of Montana having some "right" to take on the government.

The core problem with this theory is the Federalist Papers were designed to sell the Constitution so it would be ratified. All that's was written was not true. This theory was never incorporated into the Constitution nor did it make it into the first Militia Acts of 1792. It persists because Gun Nuts, like the NRA that ignores the militia clause in the Second, are just looking for a legitimate sounding pretense to justify not being regulated.

The Federalist Paper I was referring to is Federalist 46. Note the sections in bold where Madison is CLEARLY talking about STATES using their militias for this role. But it's all academic. Like Hamilton's Select Corp in #29... it was NEVER law that the militias had this power.

MADISON: Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

http://avalon.law.yale.edu/18th_century/fed46.asp

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm
Quote Aldair:Why do so many Americans, have so little faith in "The land of the free" that they expect to fight their own government.
That's easy... it's because Gun Nuts and the Orwellian Right have brainwashed the gullible that the purpose of the Second is to protect some mythical legal right of armed rebellion against the government. This is NO WHERE in law... as one could expect given that Shays Rebellion scared the crap out the the federalists. If you don't know what that was, it was an attack of perhaps 2000 angry farmers against the US armory in Springfield Mass in the winter of 1787. That year ring a bell? The Constitutional Convention was held starting in May of that year.

You'll find NO tolerance of rebellion against the federal government in actual law... be it the Constitution or the Militia Acts of 1792. It's a Gun Nut lie made of smoke and mirrors.

Now if you're wondering whether there's a moral right... that's another question. But then who decides what's a legitimate grievance?

Our system was designed so elections would be the internal release of tensions. But since the Constitution reflects the politics of 1787... those elections are a highly defective tool. First they can't properly measure the "consent" of the governed as a proportional representational system can. Second, the system is antidemocratic... designed to give all "states" a voice... even if those states are merely those who live there. The result are some antidemocratic abominations: a Senate where a mere 18% of the US population gets 52% of the seats... and an EC where a candidate like Bush who was rejected by the People, can become president.

Consent of the governed, my ass.

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

Regarding the original intent vs original meaning discussion: What can be gleaned from the other writings of the drafters/ratifiers? Do thier writings outside what is written in the 2nd shed any insight as to what they meant?

Assuming we take the negative "People versus the Government" stance (assuming the government has run amok) what will happen to the when only one side is armed? The question is rhetorical, of course.

I'm not expecting a lot of argument when I write that the men and women of the time were hypersensitive to the dangers of an oppressive (and armed) government. Despite having just fought a war with a government perceived as tyrannical they were very clear to grant the power of a military to their newly formed governement. Becase they did so, why would the Second even need to exist were it not to enumerate the people's ability to protect themselves? This is a legitmate question, not a rhetorical one.

And if Second was truly just meant to allow for an armed militia why wouldn't they have been more explicit in their wording? For instance, why didn't they write "the right of the militiamen to keep and bear Arms"?

The wording of the Second is unfortunate. It is regularly used by both sides of the argument to come to disparate conclusions that both say are obvious from the wording.

The so-called Gun Nuts are not Gun Nuts because of the Second Amendment. Their nuttiness stems from something much deeper. I do not support the right of any person to initiate the use of physical force (in any form) against another. I do however, support the right of response to force (by force). And what I and other Gun Nuts will not accept is a limitation on the means of our response. Whether dealing with a home invader, an out of control government or a dangerous animal in my back yard I will not be told what is and is not an acceptable way for me to defend my continued existence. Each of our lives is so intimately our own. The suggestion of a limitation on how any of us can defend our own lives is indefensible. The Second Amendment provides the legal basis to support the "Gun Nuts" belief that his life (and the preservation of it) is his own. It prevents him or her from having to become an outlaw in the process of sustaining his own existence.

cmw44's picture
cmw44
Joined:
Sep. 18, 2014 3:49 pm
Quote cmw44:I'm not expecting a lot of argument when I write that the men and women of the time were hypersensitive to the dangers of an oppressive (and armed) government. Despite having just fought a war with a government perceived as tyrannical they were very clear to grant the power of a military to their newly formed government. Because they did so, why would the Second even need to exist were it not to enumerate the people's ability to protect themselves? This is a legitimate question, not a rhetorical one.
Welcome to the forum!

You're neglecting the fact that the Constitutional Convention was called in response to Shays Rebellion when a few thousand framers and war vets attacked the federal armory in Springfield Ma. This was the final straw, proving the Articles were too weak to hold the nation together.

Given your ideas, one might think the Framers would welcome the rabble getting these weapons, that they would WELCOMED the rabble to have some right to armed rebellion. It's an amusing bastardization of history. Throughout the Constitution you see a DISTRUST of the common person. There are checks on them everywhere in the Constitution. They can't elect a president without EC oversight and nothing the House does can pass unless it goes through the Senate.

Quote cmw44:And if Second was truly just meant to allow for an armed militia why wouldn't they have been more explicit in their wording? For instance, why didn't they write "the right of the militiamen to keep and bear Arms"?
Why? You see the Second as an individual right when the Constitution gave Congress power over state militias in a more general sense. When Congress first uses this power, it mandates gun ownership for militia members... able bodied white men between 18-44. This is more of a civic obligation than a true individual right. After all, a true right implies choice. For militia members there was no right NOT to own a gun. Would you feel paying mandated income taxes is a "right" just because someone said it was? The "right" here is these militias made up of the "people"... freemen, would not be disarmed.

Quote cmw44:The wording of the Second is unfortunate. It is regularly used by both sides of the argument to come to disparate conclusions that both say are obvious from the wording.
I see the wording as very clear. Congress had the power to arm and discipline the militia. The Second insures that Congress can't disarm the militias. In doing so, that armed militia needed for the security of a free STATE remains a state's right.

Quote cmw44:The so-called Gun Nuts are not Gun Nuts because of the Second Amendment. Their nuttiness stems from something much deeper. I do not support the right of any person to initiate the use of physical force (in any form) against another.
So you're talking about a right to personal self defense OUTSIDE the militia context. It's simply a Ninth Amendment right... unenumerated as are most of our personal rights that make up "liberty". The idea that guns for sport deserved an amendment when there are no amendments for most other rights, is laughable. Rights were to be protected in the very construction of the Constitution and need not be enumerated.

Quote cmw44: I do however, support the right of response to force (by force). And what I and other Gun Nuts will not accept is a limitation on the means of our response. Whether dealing with a home invader, an out of control government or a dangerous animal in my back yard I will not be told what is and is not an acceptable way for me to defend my continued existence.
There is no legal right for individual armed rebellion. Nor is there any legal right for ANY armed rebellion. Madison may have speculated in Federalist 46 the states could use their militias to restore constitutional rules to the federal government, but this never made it into law. In fact Madison wrote in the draft of what became the Second... "free country". It was changed to "free state". Madison's idea went nowhere. It's not in the Constitution, the Second, or the Militia Acts... which are very hostile to the idea of insurrection.

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

UlTRAX the laws might be hostile to the idea of insurrection, but that still does not stop a group of people or a state from fighting back if it is do needed. Self defense is self defense.

If you are looking for proof of this study up on the revolutionary war.

mavibobo's picture
mavibobo
Joined:
Jul. 8, 2014 3:39 pm
Quote mavibobo:UlTRAX the laws might be hostile to the idea of insurrection, but that still does not stop a group of people or a state from fighting back if it is do needed. Self defense is self defense. If you are looking for proof of this study up on the revolutionary war.
Gee... are you finally admitting that there is NO legal right for armed insurrection in the Constitution or the Second?

As for looking to the Revolutionary War for a right... feel free. But there's nothing coming from this period that supersedes the Constitution... not even the Articles... and the DoI has no weight in law. So you can claim a moral right for armed insurrection... but that has NOTHING to do with the Constitution or the Second.

And pray tell... just what is "self-defense"? If some drunken jackass living in the mountains of Montana decides he has a right to federal land... and come into conflict with the Feds... is that "self-defense"?

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

Another thread is titled 'Rape Culture' , there is also a gun culture. Cops think everyone is armed so they shoot and kill unarmed innocent citizens. Gun nuts shoot and kill unarmed non-threatening under SYG. In SC a traffic stop got the driver shot, he was getting his license and registration per instruction. Since all Americans are armed, and only know force for conflict resolution, you get more deaths per capita than any OECD country. Americans are reprobates and gullible, Goebbels would love such an ignorant populous.

Bob Costas on O'Donnel's show explained sensible gun safety by comparing safety options to speed limits, licenses, seatbelt laws, red lights, etc. No one screamed that "It's a slippery slope, they'll take our cars away!!" That's why those screaming are called gun nuts. Other countries have guns but with fewer gun homicides, maybe America is NOT exceptional.

douglaslee's picture
douglaslee
Joined:
Jul. 31, 2007 4:01 pm
Quote ulTRAX:

Quote mavibobo:UlTRAX the laws might be hostile to the idea of insurrection, but that still does not stop a group of people or a state from fighting back if it is do needed. Self defense is self defense. If you are looking for proof of this study up on the revolutionary war.
Gee... are you finally admitting that there is NO legal right for armed insurrection in the Constitution or the Second?

As for looking to the Revolutionary War for a right... feel free. But there's nothing coming from this period that supersedes the Constitution... not even the Articles... and the DoI has no weight in law. So you can claim a moral right for armed insurrection... but that has NOTHING to do with the Constitution or the Second.

And pray tell... just what is "self-defense"? If some drunken jackass living in the mountains of Montana decides he has a right to federal land... and come into conflict with the Feds... is that "self-defense"?

I never said there was a legal right to insurrection, I am simply saying if the government takes all of the guns away we are no longer free we are subjects if not slaves. As far as the drunk hill Billy taking federal land. My response is there should not be any federal land except for military based and a few national parks. They have no need to own or control so much land let the states take care if the land in their state.

mavibobo's picture
mavibobo
Joined:
Jul. 8, 2014 3:39 pm
Quote mavibobo: I never said there was a legal right to insurrection, I am simply saying if the government takes all of the guns away we are no longer free we are subjects if not slaves.
Pathetic sleight of hand. Your strawman argument is meaningless as stated and you're deliberately sweeping the rest of it under the table.... that the Framers wanted a check on a federal government should it ever run amok... and that check is the Second... Right?

Quote mavibobo:As far as the drunk hill Billy taking federal land. My response is there should not be any federal land except for military based and a few national parks. They have no need to own or control so much land let the states take care if the land in their state.
I started a thread on this topic and I agree the current situation is absurd. But I don't agree that the federal government should NOT own land beyond what you stated. I'd like to see some land sold off in the west to buy and protect more land out east.

To your point, how many states beyond the original 13 did NOT arise out of federal land? Just a handful. Who are you to say your opinion is more valid than those who, at the time, agreed that x% of federal land would remain federal as a condition of statehood?

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

Using the 9th as the sole argument of a private citizen's right to have a weapon (any weapon) just seems like a rope-a-dope to me. Encouraging the argument to shift to the 9th as the basis for gun ownership smacks more of a cunning set up by anti-gun folks than a legitimate defense of gun ownership. If the 2nd were voluntarily set aside as the primary argument the leg sweeping of an individual's right to own a gun would come quickly. The unemumerated rights protected by the 9th are only protected until a law is passed that removes them. The 9th is just as dangerous a slope of slipperiness as the Commerce and Necessary and Proper clauses. It's ambiguity is filled by the most compelling argument, the party in control of the Legislative and Executive and/or the political leanings of the judge hearing arguments.

Do you really believe in the right of individuals to own guns (regardless of what the Constituion says)? I would like to know.

My answer to the question above: Mob rule, er, I mean "the will of the People" cannot serve as the arbiter of an individual man's right to defend his life (and by 'man' I mean 'human'). My right to defend my life with a gun really doesn't require enumearation, but I'm glad, despite your disagreemnt, the 2nd has been found to do so. To say that I am not allowed to defend my life by any means necessary because of a 5-4 SCOTUS vote or a 51% "majority" in a ballot initiative or a party-line vote at the State or Federal level is not rational to me. Because in the end, "the People" do not exist. The People is an ethereal concept. We [over]use terms like "society", and "the greater good" to justify things but the right of an individual to defend his existence (i.e. to bear arms) should not be one of them. Save things like oxygen, little to nothing is completely good or bad for "the People". Something can only be good or bad for an individual person. The so-called People cannot make rules regarding the ability of a person to continue consuming the oxygen from which we all benefit. In the end, I don't need the 2nd or the 9th to tell me that.

On another note:

Quote douglaslee:

Bob Costas on O'Donnel's show explained sensible gun safety by comparing safety options to speed limits, licenses, seatbelt laws, red lights, etc. No one screamed that "It's a slippery slope, they'll take our cars away!!" That's why those screaming are called gun nuts. Other countries have guns but with fewer gun homicides, maybe America is NOT exceptional.

Are there goups out there advocating the criminilization of vehicle ownership? I'm not aware of one. But there are a healthy number of groups that seek to take away guns. If you have not already done so I invite you to research the history of how people in the United Kingdom were disarmed. It is a case study in the slippery slope you imply to be non-existent.

cmw44's picture
cmw44
Joined:
Sep. 18, 2014 3:49 pm

Cmw44,

I believe that people have a right to self defense, but that they do not necessarily have a right to certain weapons that could be deemed excessively powerful for self defense use. However, Cmw44, I must concede that the problem with banning certain weapons of self defense on the basis of "excessive force" is that it is a very subjective concept. What is excessive to one person is not necessarily excessive to someone else. No one individual should be allowed a nuclear bomb for self defense purposes, but no one is advocating for that. So the "nuclear bomb" argument would be a moot point.

I propose that the best "gun control" is not necessarily to ban certain types of guns, but to ban them from certain types of people. Namely, those people who are convicted felons and those who have a mental illness so severe that they behave in a violent way or display behavior that could be considered a violent threat towards other people.

As for your argument that the concept of society is "ethereal," all I can say is that such is a moot point. I do not care if it is ethereal as long as it is truth. A society is formed when a group of individuals agree to surrender some of their freedom in order to establish mutual protection and support. A society can be "less free" or "more free," but can never be "absolutely free." If you deem that to be a mystical concept, then that is your issue to deal with.

micahjr34
Joined:
Feb. 7, 2011 4:57 pm

The whole idea of disarming America is absurd. Maybe out gunned by the powers that be, but rounding up all the guns in America? Hahahahaha, it's too silly to even think or worry about.

If you want to worry really about and do something to stop the take over of America I suggest you read the road signs. They've been posted for a long time and growing bigger by the day.

rs allen
Joined:
Mar. 15, 2012 5:55 pm

I do not advocate disarming the whole of America, because doing so would rely heavily on the "nuclear bomb" argument. There are lots of problems with that line of thinking because what constitutes an "excessively powerful" weapon is vague and ambiguous when applied to all of society equally. Except for nuclear bombs, but no one is advocating for that!

micahjr34
Joined:
Feb. 7, 2011 4:57 pm

Sorry mica, I wasn't speaking to your reasonable position of control of who and what weapons are available to the general population but I was speaking to the gun nuts/spammers/trolls.

rs allen
Joined:
Mar. 15, 2012 5:55 pm

Cmw44,

I apologize if I sounded dismissive and arrogant concerning your beliefs in my post. I may disagree with you concerning what you communicated, but I respect your right to communicate it. I am not saying that people like me have a free pass to just ignore people like you as if you all do not exist.

micahjr34
Joined:
Feb. 7, 2011 4:57 pm
Quote micahjr34:

A society is formed when a group of individuals agree to surrender some of their freedom in order to establish mutual protection and support. A society can be "less free" or "more free," but can never be "absolutely free." If you deem that to be a mystical concept, then that is your issue to deal with.

Hi micahjr34,

Thank you for taking the time to respond to my comment.

I have a more simple definition of a society; one that is not defined by a negative (i.e. sacrifice). A society is a group of people who [choose to] live together (in the same country) and have interactions with each other. The only thing a person inherintly gives up when they are part of a society is the state of being alone. Participation in a society should provide mutual benefit, not mutual sacrifice. We do not form societies in order to sacrifice do we? Your definition makes me think it is a requirement. We form societies in order to mutually prosper. I do not suggest that society is ethereal or non-existent (and I certainly would not use the word mystical). It was not my intention to suggest such a thing. When someone says that this or that should be made illegal because it is in the best interest of society (which is a connotative synonym for the People in this context), I do take issue. The "People" is a non-corporeal entity but is regularly treated as an individual (and as a more valuable than an individual). You cannot argue against the People because it is not real. The People is not a person and is as melleable as a statistic (i.e. easily manipulated to support one's position). How does one argue against "the greater good" or "what's best for the people"? A similar difficulty appears when two sides of an argument stump for so-called "commen sense" measures. The concept of common sense is just as whimsical as the concept of the People.

When something is done in the name of the People it will most assuredly hurt some and help others. When a law is passed to benefit the People it might hurt you but benefit me. How can that be a representation of the People? If we collectively comprise the People but not all of us benefit then it is not approporaite to say that this was done in the best interest of the People. That is a very different thing than the negation of the concept of a society.

Finally, do you really feel that all felony crimes should preclude the right to self defense with a firearm? When I look at the list of things that qualify as felony crimes I scratch my head in wonder that this is the law. I don't want to digress too much from the OP's post but I do wish that a little more care had been taken to specify certain types of felonies, not just any felony.

cmw44's picture
cmw44
Joined:
Sep. 18, 2014 3:49 pm
Quote micahjr34:

Cmw44,

I apologize if I sounded dismissive and arrogant concerning your beliefs in my post. I may disagree with you concerning what you communicated, but I respect your right to communicate it. I am not saying that people like me have a free pass to just ignore people like you as if you all do not exist.

I didn't see this before my response to earlier comment. I didn't feel dismissed. You just disagreed. That happens a lot on the Interwebs. Thanks for the clarification, though.

cmw44's picture
cmw44
Joined:
Sep. 18, 2014 3:49 pm
Quote cmw44:
Quote micahjr34:

A society is formed when a group of individuals agree to surrender some of their freedom in order to establish mutual protection and support. A society can be "less free" or "more free," but can never be "absolutely free." If you deem that to be a mystical concept, then that is your issue to deal with.

Hi micahjr34,

Thank you for taking the time to respond to my comment.

I have a more simple definition of a society; one that is not defined by a negative (i.e. sacrifice). A society is a group of people who [choose to] live together (in the same country) and have interactions with each other. The only thing a person inherintly gives up when they are part of a society is the state of being alone. Participation in a society should provide mutual benefit, not mutual sacrifice. We do not form societies in order to sacrifice do we? Your definition makes me think it is a requirement. We form societies in order to mutually prosper. I do not suggest that society is ethereal or non-existent (and I certainly would not use the word mystical). It was not my intention to suggest such a thing. When someone says that this or that should be made illegal because it is in the best interest of society (which is a connotative synonym for the People in this context), I do take issue. The "People" is a non-corporeal entity but is regularly treated as an individual (and as a more valuable than an individual). You cannot argue against the People because it is not real. The People is not a person and is as melleable as a statistic (i.e. easily manipulated to support one's position). How does one argue against "the greater good" or "what's best for the people"? A similar difficulty appears when two sides of an argument stump for so-called "commen sense" measures. The concept of common sense is just as whimsical as the concept of the People.

When something is done in the name of the People it will most assuredly hurt some and help others. When a law is passed to benefit the People it might hurt you but benefit me. How can that be a representation of the People? If we collectively comprise the People but not all of us benefit then it is not approporaite to say that this was done in the best interest of the People. That is a very different thing than the negation of the concept of a society.

Finally, do you really feel that all felony crimes should preclude the right to self defense with a firearm? When I look at the list of things that qualify as felony crimes I scratch my head in wonder that this is the law. I don't want to digress too much from the OP's post but I do wish that a little more care had been taken to specify certain types of felonies, not just any felony.

You should have signed that missive as, 'just another internet libertarian troll'.

rs allen
Joined:
Mar. 15, 2012 5:55 pm
Quote rs allen:

You should have signed that missive as, 'just another internet libertarian troll'.

If I were a Libertarian I might have.

BTW, Internet should be spelled with a capital "I". It is a proper noun.

cmw44's picture
cmw44
Joined:
Sep. 18, 2014 3:49 pm
Quote cmw44:

Using the 9th as the sole argument of a private citizen's right to have a weapon (any weapon) just seems like a rope-a-dope to me. Encouraging the argument to shift to the 9th as the basis for gun ownership smacks more of a cunning set up by anti-gun folks than a legitimate defense of gun ownership.

I know you addressed the question to someone else, but I bought my gun 35 years ago for personal protection when I backpacked alone.

The Second is one of the rare areas of the Constitution that has an explanation. All I've done is take the Second for what it says... that it places a limitation on a power of Congress regarding the constitutional militias. It says NOTHING about a generalized right to own a firearm and it's intellectually dishonest to claim the militia clause is meaningless. If the intent was to create an individual right... the Second would just say "Congress shall make no law...".

There was no BoR for 3.5 years after ratification. Where was your precious right to own a gun during that period? Did it exist? OF COURSE IT DID... at least for freemen.

The Framers didn't think a BoR was necessary. They felt rights were secure because the new government's limited powers came from the people surrendering some rights to guarantee others. If the powers weren't created, the matter of rights was left to the people and their states... and it SHOULD be clear the states would never give up their power to control guns... unless you think the Second applies to slaves.

The Ninth was written to make clear that just because a few rights were listed in the BoR... hardly meant the rest could be threatened. It's the Ninth that protects the general concept of liberty... but since these matters were issues within states, very little case law exists on the federal level. Sadly the NRA has placed all their energy into bastardizing the Second instead of protecting the Ninth.

Quote cmw44:

If the 2nd were voluntarily set aside as the primary argument the leg sweeping of an individual's right to own a gun would come quickly. The unenumerated rights protected by the 9th are only protected until a law is passed that removes them. The 9th is just as dangerous a slope of slipperiness as the Commerce and Necessary and Proper clauses. It's ambiguity is filled by the most compelling argument, the party in control of the Legislative and Executive and/or the political leanings of the judge hearing arguments.

The Ninth places the burden on government to prove a pressing need before a right can be limited... and even freedom of the press has laws against libel.

Madison feared to enumerate some rights would place the others in jeopardy. And yet the Second is tied to the constitutional militias the members of which were MANDATED to own a firearm. That's hardly an individual right. It's a right tied to a civic function. Since Congress found another way to arm the militias... the Second is moot, unless Congress tries to disarm the state national guards.

Quote cmw44:Do you really believe in the right of individuals to own guns (regardless of what the Constitution says)? I would like to know.
I bought my gun 35 years ago for personal protection when I backpacked alone. But as I want trained , emotionaly mature people driving insured cars... I want reasonable limits on gun ownership. Laws that exceed legitimate intent are an abuse of power.

Quote cmw44:My answer to the question above: Mob rule, er, I mean "the will of the People" cannot serve as the arbiter of an individual man's right to defend his life (and by 'man' I mean 'human'). My right to defend my life with a gun really doesn't require enumeration, but I'm glad, despite your disagreement, the 2nd has been found to do so.
I find Gun Nuts to be an immature and intellectually dishonest lot. They want what they want... and if the USSC makes a laughable political ruling... they'll grab it no matter how much it bastardized the Second. They had to bend over backwards to ignore the Ninth and create a new right in the Second.

Quote cmw44:To say that I am not allowed to defend my life by any means necessary because of a 5-4 SCOTUS vote or a 51% "majority" in a ballot initiative or a party-line vote at the State or Federal level is not rational to me.
You need the militia to defend you? Show me ANYWHERE in the Second that it says there's an individual right to own a gun for self-defense or any other reason other than the security of a free state.

The problem here is the social conservatives on the Court loathe the Ninth. They want to use the Constitution to RESTRICT rights to those they think the people should have... and as we saw with Bork... they pretend we can never know what the Ninth means even if any high schooler in a Civics class would know. Original Intent, my ass. All Scalia et al had to do is read up a bit of Madison

http://www.usconstitution.net/madisonbor.html#Sec10

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

@cmw44

Quote ulTRAX: Original Intent, my ass. All Scalia et al had to do is read up a bit of Madison

http://www.usconstitution.net/madisonbor.html#Sec10

In discussing his draft for a Bill Of Right Madison is clear there are different categories of rights... http://www.usconstitution.net/madisonbor.html

MADISON: In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the legislative, executive, and judicial branches shall be kept separate and distinct. Perhaps the best way of securing this in practice is, to provide such checks as will prevent the encroachment of the one upon the other.

A militia does NOT exist in nature. Being a member of a militia is NOT a natural right. Like trials by jury, a militia IS A CREATION OF THE POWERS OF GOVERNMENT. To protect citizens against abuses of such powers... NEW rights may have to be created. Madison calls them "positive rights".

The Second is merely a "positive right"... created to prevent Congress from disarming the new militia system the Constitution created.

The federal government was simply NOT given any direct power over what property a person could own or how they could defend themselves. It was left to the states. To think that the Framers would enshrine an individual right to own a gun for self defense and NOT enumerate other basic rights like the right to fall in love or not, live with another... or not, have a kid or not, start a business, or not... is laughable. Liberty consists of an infinite number of rights... right down to a right to have a favorite color, or change your mind about it 10 times a day. There is NO way to enumerate ALL natural rights... though some right winger here insisted that unless they were all enumerated, they don't exist. In his mind the Constitution doesn't protect rights, it creates them. Your arguments seem dangerously close to his.

So cmw44 which parts of the Constitution do you want bastardized to "create" those other rights?

Or are they just part of "liberty" inherently protected by the Constitution and finally stated in the Ninth?

ulTRAX's picture
ulTRAX
Joined:
Jul. 31, 2007 4:01 pm

Currently Chatting

Why the Web of Life is Dying...

Could you survive with just half of your organs? Think about it. What if you had just half your brain, one kidney, half of your heart, one lung, half a liver and only half of your skin? It would be pretty hard to survive right? Sure, you could survive losing just one kidney or half of your liver, but at some point, losing pieces from all of your organs would be too much and you would die.

Powered by Pressflow, an open source content management system