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It seems highly likely that "well regulated" simply means well trained and the like - as opposed to a mob of civilians waving pitchforks and torches.So it is your interpretation that the state can regulate the militia but NOT the citizenry?
It seems highly likely that "well regulated" simply means well trained and the like - as opposed to a mob of civilians waving pitchforks and torches.
and you know this because....??????
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Excellent answer. Could you please provide some objective evidence to support this viewpoint? Supreme Court decisions which define the term as you see it would do quite nicely.
Of course the militias, or military, should be regulated. However, people who make this classic argument against gun rights based on the mention of a regulated militia are forgetting something very simple in the interpretation:
THERE'S A COMMA NEXT TO STATE, explicitly stating that both a regulated militia, AND the individual citizenry, have the right to possess arms.
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Of course the militias, or military, should be regulated. However, people who make this classic argument against gun rights based on the mention of a regulated militia are forgetting something very simple in the interpretation:
THERE'S A COMMA NEXT TO STATE, explicitly stating that both a regulated militia, AND the individual citizenry, have the right to possess arms.
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.
To me, it reads as:
“Because a well regulated militia (read: at least partially trained defense force) is necessary to ensure the security of a free state (and seeing as the militia needs weapons, obviously), we forbid any infringement on the right of the people to keep and bear arms”.
Some may argue that the bit about the militia means that unless a person is in the militia, they can’t keep and bear arms.
It is possible that this is the case, but I note that it does not specifically state such.
It simply gives a reason for, and then the details of, the restriction the Gov operates under.
At least as I read it.
An interesting (and somewhat plausible) interpretation.That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.
Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.
So the SC can interpret all law and the Constitution but for some reason the one sentence Second Amendment is off limits in your mind?
That is a strange standard indeed.
That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.
Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.
Because unlike some, I've studied the issue. :roll:
I'm not using it as an argument to support restriction, I'm asking the question: it clearly states that the militia is well regulated and said well regulated militia is necessary for a free State. If the citizenry is the militia, who's the regulator?
That's what I'm asking. I agree with the 2nd Amendment, but I think "well regulated" is a quandry because it's clearly there and what it means varies a great deal from person to person and from legal scholar to legal scholar.
It's also the only right (possibly the third) to be written conditionally as opposed to the others. The 1st Amendment is pretty clear - Congress shall make no law..., while the 2nd offers a condition before specifying the right.
Again, I'm not arguing FOR restrictions, I'm just debating the language.
For instance: when Tennessee passed the Guns in Bars law, bar-owners went ape-**** (because their insurance premiums would skyrocket) and even a bunch of largely conservative business owners began suing and lobbying to prevent the bill's passage.
So, I ask: in order to maintain a well regulated militia, is it necessary to grant the people the right to bear arms in a bar? Or is that a reasonable restriction to say a business owner can disallow guns in his establishment?
I'm seeing a trend here of some people using the word "regulated" in the modern context with regard to the 2nd amendment. That's flat-out wrong.
A very minimal understanding of the military terminology of the day reveals that the word had an entirely different meaning in that context. Essentially, professional line troops that fought for a specified term of service were known as regulars, as in British regulars (picture the long line of redcoats). They were distinguished because they fought in formation and were well-trained, they drilled often to ensure proper discipline and obedience to line officers.
Then you had irregulars...men levied, often for an indefinite term of service, who participated in reconnaissance, geurilla warfare, and did not fight like regulars--they were essentially skirmishers, indian scouts, partisan rangers, etc. They did not fight in drill formations and were often seen as undisciplined and ineffective against regulars...usually they were most effective at harassing supply lines and would scatter and retreat if facing a disciplined line company. See Roger's Rangers as an example.
In the 2nd amendment, the phrase "well-regulated militia" is referring to the training, effectiveness, and combat discipline of the militia which, when called, were often expected to furnish their own weapons and expected to have at least some familiarity with their weapons as well as fighting in a disciplined company in line. The "regulation" had nothing to do with the idea that the government should control people's access to firearms. Hell, on the frontiers of the day, where many people lived without access to any state protection, firearms were an absolute necessity for both self defence and the procurement of food.
european muskets were very inaccurate and were usually smoothbore to facilitate a fast reload. British tactics were similar to what they Used in Agincourt-overwhelm the enemy with projectiles that were effective when directed to massed lines of men. THose who could reload faster and not break ranks while taking casualties usually prevailed. of course if you had accurate weapons, like kentucky long rifles, you could direct aimed fire at individual targets-hence the "nasty" habit of American snipers aiming for horse mounted british officers.
An interesting (and somewhat plausible) interpretation.
Do you have evidence that supports this theory?
Seeing as your statement implies that such was part of the legal thought at the time, it would seem likely that some supporting documentation would exist.
Historian Mark Tushnet said:When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.
Judge Richard Posner said:The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.
Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.
Exactly, this is not my own theory but based on the analysis of some prominent historians and legal scholars.
As to the question of what "keep and bear" means, I myself used to think just the way you did. But you cannot read modern definitions into it, it is actually a term of legal term of art wit ha precise meaning:
As to the question of whether the original intent was to create an individual right or a right tied to the militia, Judge Posner, one of the most respected conservative judges of our time, has this to say: