The Meaning of the Second Amendment

[Kennedy 0]

as requested by billvon.

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

The second was intended to cover military arms of the "average" infantry soldier.

In 1781 in his Notes on the State of Virginia, Query IX, Thomas Jefferson described the militia: "Every able-bodied freeman, between the ages of 16 and 50 is enrolled in the militia. .... In every county is a county lieutenant, who commands the whole militia of his county. .... The governor is the head of the military, as well as the civil power. The law requires every militia-man to provide himself with the arms usual in the regular service."

Today, at the very least, that would mean M16s and M4s. Yes, I believe the second amendment applies to select fire and full auto firearms. Obviously, this also precludes any kind of magazine ban, as soldiers use 30 rounds mags in their rifles. It also should prevent any kind of ban on semi-automatic handguns, including Glocks, 1911s, and Berettas.

Also, according to Miller, other military arms, such as bolt action rifles and common military arms would be covered. The argument could be made, though it may be a bit more tenuous, that the second should cover MP5s and SAWs as well. An RPG is on the border line, and I must conclude that it is not covered. A 28 inch double barrelled duck gun is not covered under the second amendment. A soldier's rifle is.

Any politician who proposes a "sporting purpose" test for whether arms should be allowed for citizens is sponsoring positively unconstitutional legislation.

The Second Amendment Recognizes and Individual Right
All scholarly research (that hasn't resulted in firings and revoked prizes) clearly shows that the second amendment is an individual right. Studies of court decisions shows the same thing. Read Dred Scott about the rights he would've aquired if given citizenship. Read Miller about military arms and which guns the second amendment protects. Read United States v. Verdugo-Urquidez, 110 S. Ct. 1839 (1990). Read the other thirty five or so cases where the supreme court recognized and upheld the second amendment. Check into the story of Michael A. Bellesiles and his Arming America.

"The people" mentioned in the second amendment are the same ones mentioned in the rest of the amendments and the rest of the constitution.

Concealed Carry
This is the one area of major gun rights/gun control debate that is not guided by the second amendment. The right to keep arms is about as straight forward as can be, though some jurisdictions cannot even keep to that. The right to bear arms, though, is not as clear. Does it mean open carry? Bearing arms for a particular purpose? The answer to each question leads to a dozen more unanswered questions. Until the Supreme Court of the US hands down a clear and complete interpretation, and incorporates the states through the 14th amendment, I won't use the second to advance concealed carry. I'll use statistics, logic, and history instead.

While I strongly believe in RTC legislation and will constinue to support it, I can't be certain enough to claim it is covered by the second amendment.

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Please elaborate on your poll answers.

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[Nightingale 0]

From the way the amendment is phrased, it seems like the "well regulated militia" line is more of an explanation behind the purpose of the amendment rather than a restriction on it.

From US v. Emerson

A textual analysis of the Second Amendment supports an individual right to bear arms. A distinguishing characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its purpose. No similar clause is found in any other amendment. While states' rights theorists seize upon this first clause to the exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses, rather than construe them as being mutually exclusive.

The amendment reads "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Within the amendment are two distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its independent clause, "the right of the people to keep and bear Arms, shall not be infringed," then there would be no question whether the right is individual in nature.

Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized.


And, well, I think these guys say it pretty eloquently, too:

“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped.” — Alexander Hamilton

“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” — Tench Coxe

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” — Noah Webster

“No free men shall be debarred the use of arms.” — Thomas Jefferson

“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” — Richard Henry Lee

“The great object is that every man be armed. . . . Everyone who is able may have a gun. . . . Are we at last brought to such a humiliating and debasing degradation that we cannot be trusted with arms for our own defense?” — Patrick Henry

[Kennedy 0]

OK, so the three people (so far) who think I'm insane, what makes you say so? Can you dispute any of the arguments I have put forth?

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[justinb138 0]

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OK, so the three people (so far) who think I'm insane, what makes you say so? Can you dispute any of the arguments I have put forth?

Guns are evil! Save the children!

[Kennedy 0]

I would agree with you that a broader interpretation of proteted arms is correct, however in Miller, the only SCUS case I know of that describes whcih firearms are protected and which are not, states that firearms with no purpose in the military service are not cover, that only arms of the infantry are. I would disagree, but I'm not the guy in the robes.
(the nine robes were factually wrong, however, when they stated that short barrelled 12 guages were not weapons of the military)


I also agree that the militia clause was one reason for the amendment, not the only reason. (it's obvious to anyone with an understanding of the english language that it is a subordinate clause, and I really must laugh that anyone argues otherwise).

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[Kennedy 0]

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Guns are evil! Save the children!

You left out blood runing in the streets and wild west shootouts.

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[Nightingale 0]

From Miller:

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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- '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.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

[jumper03 0]

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OK, so the three people (so far) who think I'm insane, what makes you say so? Can you dispute any of the arguments I have put forth?

Didn't vote, but if you want an M-4 or M-16 fine. But when we run low on troops to send to Iraq or Afghanistan, the list of people who own those gets pulled out and they are called to duty.

Scars remind us that the past is real

[billvon 2,473]

>but if you want an M-4 or M-16 fine. But when we run low on troops to
>send to Iraq or Afghanistan, the list of people who own those gets
>pulled out and they are called to duty.

Interesting solution, and one that corresponds more closely to the intent of the second amendment than any other I have seen here. (IMO of course.)

[Kennedy 0]

Interesting, but not constitutional.
Article 1, Section 8 of the US constitution says so.

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To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

http://www.findlaw.com/casecode/constitution/

A separate provision provides for raising armies and navies.

Militias don't serve in foreign wars (except possibly neighboring countries).

If you need soldiers for a war and the AVF isn't providing the personnel, insitute a draft.

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[jumper03 0]

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Interesting, but not constitutional.
Article 1, Section 8 of the US constitution says so.

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To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

http://www.findlaw.com/casecode/constitution/

A separate provision provides for raising armies and navies.

Militias don't serve in foreign wars (except possibly neighboring countries).

If you need soldiers for a war and the AVF isn't providing the personnel, insitute a draft.

Okay then, when the Guard is called out to aid in a national disaster (flood, tornado, what have you) the militia (the M-16 and M-4 owners in this hypothetical example) gets called instead.

Scars remind us that the past is real

[Kennedy 0]

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Okay then, when the Guard is called out to aid in a national disaster (flood, tornado, what have you) the militia (the M-16 and M-4 owners in this hypothetical example) gets called instead.

The states have the power to call forth the militia for disasters, just like the feds can call out the national guard. That's always been the case (the states have just chosen not to do so).

Also, why would you want the militia called instead of the National Guard? Why not both?

If that's the only requirement you put forth for full second amendment rights, boy you've got yourself a deal.

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[USNLawdog 0]

Nope no calling on the militias for that, when you join the National Guard you understand that is part of your duties. The National Guard is based off of the 2nd amendment and they do respond to those disasters, so technically the states militia is doing that. However the other side of the militia doesn't have anything to do with being in a offical uniform, or carry any kind of offical rank. The example I'll use is the movie Red Dawn. In Red Dawn they were a militia, even without being lead or run by the state. But they put up a fight and that is the main point of the militia, to provide resistance against foriegn invasion on our home soil. Much like in the revolutionary war. If people think that the actions in Iraq is bad I'd like to see some other country try to occupy the US, oh the numbers they would lose to fighting militia's here.

Kennedy, I love the idea of M4's for all. Where can I pick one up and do you think I can con Surefire into sending me some goodies to make me a more efficient militia man? Even if I am on active duty.

"I've taken the liberty of drafting your confession, you will be given a fair trial and then taken out back and shot."

[markd_nscr986 0]

100% in agreement with you!

And I think that there should be a federal concealed carry law instead of this state to state mess that exists

Marc SCR 6046 SCS 3004

[Kennedy 0]

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Red Dawn

I always hated that movie.

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[DrewEckhardt 0]

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as requested by billvon.
The right to bear arms, though, is not as clear. Does it mean open carry? Bearing arms for a particular purpose? The answer to each question leads to a dozen more unanswered questions

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Please elaborate on your poll answers.

The founding fathers couldn't forsee the future. They feared a corrupt government abusing the law. The Constitution and Bill of rights address both problems by saying the federal government can't do anything not allowed by the Constitution, we _really_ mean it about these important things, the states can only do things they're not forbidden to do, and everything else is left for the people.

Ammendment 5 "No person shall be ... deprived of life, liberty, or property, without due process of law" doesn't say "unless they're accused of terrorism" or "except when we accuse them of drug crimes, seize their property, and try it in civil court where they aren't entitled to representation, such representation may cost more than the amount in question, and the standard of guilt is prepoderance of evidence"

Ammendment 6 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" does not say "unless we accuse them of terrorism and hold them on secret charges."

Ammendment 2 says "the right of the people to keep and bear arms shall not be infringed". It doesn't say the peasants are only allowed arms appropriate for their stature. It doesn't say we can only bear arms if other people won't be offended. There are no prohibitions on the type of arms we're allowed to have or the maner in which we bear them.

Nuclear, chemical, and biological weapons aren't excluded although I'd support a Consitutional ammendment to prohibit private ownership. Privately owned SAMs and fighter jets should not be and are not excluded - the people are supposed to have the means to oppose a repressive government. In the founding fathers' time this meant private warships; now it means helicopter gunships, fighter jets, and tanks.

BTW, the Miller decision doesn't imply we can only keep arms appropriate for militia use. It said that a dead guy's lawyers failed to show that a shotgun was an appropriate militia weapon and some other court has to decide the issue.

[Kennedy 0]

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BTW, the Miller decision doesn't imply we can only keep arms appropriate for militia use. It said that a dead guy's lawyers failed to show that a shotgun was an appropriate militia weapon and some other court has to decide the issue.

from Miller
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/307/174.html

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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.

The Court said because the firearm didn't have any established showing that it is an appropriate militia arm, the second amendment does not cover it.

Of course, if the lawyer had made his case and shown that such firearms are applicable to the militia, the ruling might have been different.
(and much more clearly beneficial to the gun-rights movement)

However, the Court specifically said it was not protected because it had no demonstrate militia use. That means the Court thinks only military-appropriate firearms are covered by the second amendment. And - for better or for worse - what the Court says is law.

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Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Blame the guy for dying and his lawyer for not doing the job. The fact is such a firearm could contribute to the common defense very effectively.

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[DrewEckhardt 0]

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from Miller
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/307/174.html

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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.

"Mr Smith is a wife beater" is usually slander. Without knowing what Mr. Smith does behind closed doors "We cannot say Mr. Smith isn't a wife beater" implies ugly things but isn't a lie.

A similar difference exists here: "We canot say the second ammendment guarantees" is quite different from "The second ammendment does not guarantee."

The court said the defense didn't provide evidence showing the shotgun was a useful militia weapon and refused to rule on whether other arms were covered.

[Kennedy 0]

OK, so six people think I'm insane.

We've had one person come out with a more inclusive interpretation than my own, but there hasn't been a single post by anyone who generally seeks to restrict gun rights.
(or include over bearing and intrusive "responsibilities")

Kallend? Dekker? Christelsabine? Botellines? Anyone?

Come on, six people said I'm nuts for my views. Does any of them have a better idea on what the second amendment means?

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[kallend 1,679]

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OK, so six people think I'm insane.

We've had one person come out with a more inclusive interpretation than my own, but there hasn't been a single post by anyone who generally seeks to restrict gun rights.
(or include over bearing and intrusive "responsibilities")

Kallend? Dekker? Christelsabine? Botellines? Anyone?

Come on, six people said I'm nuts for my views. Does any of them have a better idea on what the second amendment means?

Why is asking for responsible gun ownership "intrusive"?

...

The only sure way to survive a canopy collision is not to have one.

[Balls 0]

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Come on, six people said I'm nuts for my views. Does any of them have a better idea on what the second amendment means?

Can't help you there, I'm in total agreement with ya. Where can I pick up my SAW (squad automatic weapon). I could have some fun with one of thoes

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....so that his place shall never be with those cold and timid souls who knew neither victory nor defeat."

[SkyDekker 1,153]

I have stated before that I could care less what you guys do with guns. Plus, I could care less what your constitution says.

Some of the arguments are funny though. Specially when it comes to having your guns to keep your government in check.

[Kennedy 0]

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OK, so six people think I'm insane.

We've had one person come out with a more inclusive interpretation than my own, but there hasn't been a single post by anyone who generally seeks to restrict gun rights.
(or include over bearing and intrusive "responsibilities")

Kallend? Dekker? Christelsabine? Botellines? Anyone?

Come on, six people said I'm nuts for my views. Does any of them have a better idea on what the second amendment means?

Why is asking for responsible gun ownership "intrusive"?

Can I take that to mean you have no sinificant objection to my interpretation of the second amendment?

(we've had the "intrusive argument before, but I'd like an answer before we get on the merry-go-round again)

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Guard your honor, let your reputation fall where it will, and outlast the bastards.
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[Kennedy 0]

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I have stated before that I could care less what you guys do with guns. Plus, I could care less what your constitution says.

Some of the arguments are funny though. Specially when it comes to having your guns to keep your government in check.

Can I take that to mean you have no sinificant objection to my interpretation of the second amendment?

(I don't think I mentioned rebellion in this thread, but either way I'd like an answer before we hop back on that merry-go-round as well)

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[SkyDekker 1,153]

who are the county lieutenants?