The 2nd Amendment of the Constitution

[Willie Orwontee]

They all thought there should be no standing army! . . . If we want to follow the founders intent on this issue, we should abolish the armed forces and go back to militias where able bodied men are required to serve.

No, No, No. That's not what those clauses mean. There was no intention of excluding the creation of a standing army; these statements (including the 2nd's declarative clause) are merely declarations of principle stating a distrust of overreaching governmental power. It is a vocalization of the fear that a government which relies only upon a standing army risks having a tyrant seize control of it and use those forces as a tool of oppression.

I could spend an incredible amount of bandwidth explaining this to you but there is a very succinct and eloquent exposition from an important founder and a guy who knows a bit about the English language and who wrote a very important book that explained what the proposed constitution meant by examining the leading principles of the federal constitution.:

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.”

Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787)
​

That book was written to explain what the powers of the federal government would be.

Wouldn't it be just a hoot if, "the whole body of the people [who] are armed," -- who are supposed to be properly situated to resist unconstitutional laws with force, -- who would demand a constitutional amendment that supposedly secured their right to arms, -- later discovered the amendment could be interpreted to "legally" remove their guns from their possession, so as to render their ability to resist impotent?

Jeez, wouldn't that be a great prank! :2razz: :lol: :shock: :doh

Then they having a right to keep and bear arms would make sense.

The right to arms remains as pertinent today as it was in the 1780's because it isn't about practicality it's about principle. As Webster stated, the armed people stand in opposition to any army this nation could ever muster.

Madison further explains this principle in the Federalist 46, published January 29, 1788, actually defined those army/armed citizen ratios:.

"The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion 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 citizens with arms in their hands,. . . "
​

Let's scrutinize those numbers.

At that time there were about 3 million people in what would soon be the USA. Standing army = 1% of all persons OR 4% of those "able to bear arms," so, using the upper end of Madison's "standing army" number, 30,000 . . . 30,000 / .04 = 750,000 citizens "able to bear arms," minus the 500,000 citizens "with arms in their hands," means 250,000 will need to borrow a weapon from their neighbor if events required it.

Let's see how Madison's ratio's have held up in the ensuing 220 years.

In present day America there are 300 million or so "total souls;" the present day military force of America stands at about 2.8 million active duty and reserves. That number sits smack dab in the middle of Madison's range of a nation's "standing army" carrying capability. Amazing . . .

Madison notes two subsets, those capable of bearing arms (1/4 or 25% of the total population) and those with arms in their hands (1/5th or 20% of the total population).

So, by Madison's formula 300,000,000 total souls would render a force of 75,000,000 "able to bear arms" and 60,000,000 "with arms in their hands." (backchecking -300,000,000 * 1% = 3,000,000 standing army; 3,000,000 / .04 = 75,000,000 citizens "able to bear arms.")

The exact number of present day gun owners today is not known. The US Dept. of Justice has estimated that 60 - 75 million Americans own between 250 million and 300 million firearms.

Madison envisioned any "standing army" being outnumbered ("opposed" was the word he used) by armed citizens by a factor of 17 to 1; in present day America that ratio is maintained and may have widened to as much as 27 to 1 (if upper estimates of the number of gun owners are to be accepted).

No wonder they wanted a well regulated militia in which members had the right to keep and bear arms, as that was the only mechanism for defense. . . .

From where do you discern all that from? Certainly not the state provisions I quoted! None of them even mention militia because organizing the people who freely exercise the right to arms is a state power and these provisions are only recognizing rights of the people exercised independently of any militia enrollment.

Surely you are not arguing that a state needed an amendment in its own constitution to allow itself to arm its own militias????

We have a completely different concept of defense nowdays. . . . today, in spite of the founders belief, we operate in a completely different mode. We have standing armies and no militia. In that context, the 2A, designed to maintain militias, is really an irrelevant anachronism.

Even if that were true (and it's not, don't include me in your "we") that circumstance in no way modifies the Constitutional provision in any way, shape or form.

If we are going to rely upon how the courts have interpreted the 2A, we'd find the vast bulk of them have held it was a collective right to maintain militias.

I do not dispute that some lower federal courts have gone off the rails when opining about the 2nd Amendment. I would be quite willing to discuss the judicial history of the collective interpretation. Those decisions are exercises in institutional racism and engineered outcomes. The "state's right" interpretation is smoke and mirrors cobbled together in the 1940's for a single reason, to extinguish individual claims of 2nd Amendment protection in the courts of the US.

Some have focused on its ruling based upon the type of weapon at issue and others on the holding that the amendment must be interpreted as whether possession of the weapon is reasonably related to a well regulated militia.

Well, the first is a correct "focus" and the second is a perversion of the ruling.

Miller is ambiguous on the issue, probably not by accident.

Miller is only "ambiguous" if you ignore the keys to the Court's reasoning. They did not decide this case in a vacuum, they used judicial history and treatises of political philosophy to shape their reasoning on how to treat Miller's shotgun because much of the US Attorney's argument was ignored and since no argument was offered by Miller, he was dead.

One of the most important "keys" is cited most prominently in the body of the decision instead of a footnote. Have you ever read Aymette? Does the fact that there was no appearance for Miller and the Court only read the US Attorney's brief and only heard the US Attorney's arguments, affect your understanding of this decision?

 

[Willie Orwontee]

. . . other than the petition and response filed by the parties (D.C. v. Heller, 07-290), and cross-petition filed by the D.C. residents (Parker v. District of Columbia, 07-335) and the response on the standing issue, I am not aware of any new amicus briefs being circulated in advance of the Supreme Court granting cert;

You have some old info.

As of Wed., Oct 17 @ 10:00PM Eastern the last activity was on Oct 5th.

From the SCOTUS website:

No. 07-290
Vide 07-335
Title: District of Columbia, et al., Petitioners v. Dick Anthony Heller
Docketed: September 5, 2007
Lower Ct: United States Court of Appeals for the District of Columbia
Circuit Case Nos.: (04-7041)
Decision Date: March 9, 2007
Rehearing Denied: May 8, 2007

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~
Jul 16 2007 Application (07A51) to extend the time to file a petition for writ of certiorari from August 6, 2007 to September 5, 2007, submitted to The Chief Justice.
Jul 18 2007 Application (07A51) granted by The Chief Justice extending the time to file until September 5, 2007.
Sep 4 2007 Petition for a writ of certiorari filed. (Response due October 5, 2007)
Sep 28 2007 Consent to the filing of amicus curiae briefs in support of either or neither party received from counsel for petitioners.
Oct 3 2007 Consent to the filing of amicus curiae briefs in support of either party received from counsel for respondents.
Oct 4 2007 Brief of respondent Dick Anthony Heller in opposition filed.
Oct 5 2007 Brief amicus curiae of American Civil Rights Union filed.
Oct 5 2007 Brief amici curiae of American Acdemy of Pediatrics, et al. filed.
Oct 5 2007 Brief amici curiae of New York, Hawaii, Illinois, and Maryland filed.​

 

[rhinefire]

"Happiness is a warm gun, bang-bang-shoot-shoot."
-The Beatles

(Too bad John Lennon experienced this first hand)

 

[Iriemon]

How so?

If there were no dispute gun regulation laws would not have been upheld.

Aren't our rights considered inherent?

Not necessarily. Depends upon which right, who claims it is a right, and whether it is identified and how so.

Infringed means purposeless restraints.

That is not my understanding of the word infringed.

It does not mean that the right is absolute anymore than the 1st Amendment's "Congress shall make no law" prohibits the enactment of laws barring ritualistic human sacrifice or the creation or dissemination of child pornography. Abiding by the fundamental principles of our Constitution establishes unspoken adherence to a legal theory and framework, nobody should need a pedantic exposition formally laying down every infinitesimal nuance.

OK, then the issue is the reasonable interpretation.

But that standard must be a real standard to be applied to all rights of a certain status . . . Again, fundamental and non-fundamental are the descriptions applied by SCOTUS to determine which standard (strict scrutiny or rational relationship) should be used. Since SCOTUS has not ruled on the status of the 2nd Amendment, lower courts have been left to their own imaginations as to what the "relevant considerations" are and what "reasonable limitations" can be "reasonably applied" to the right to arms; that's why we are in the mess we are in now.

Proves my assertion that it is a disputed issue, doesn't it?

You are welcome to forward any opinion you desire

Well thank you

You see doublespeak? There's nothing there speaking to what the right "means;" it is describing a process applicable to all rights to establish a hierarchy of protection. I actually think it is a very logical means of determining which rights should be protected as the epitome of liberty and essentially, untouchable.

Fundamental rights can be abrogated only under the most pressing (and provable) need of government. Such examination is why prisoners can be barred from owning weapons but are not denied the right to practice religion, because the state cannot articulate a compelling need to do so.

The process itself as to what is reasonable or reasonably related is vague.

That statement stands as living proof confirming that one of the Federalist's strongest oppositions to a bill of rights was correct. They worried that as soon as you begin listing rights those who would desire to expand government's power and injure liberty would argue that the "bill of rights" is the full and complete accounting of the citizen's rights.

The alternative is to not list them, which then affords no protection at all.

And that information is a surprise to you? Have you ever read anything considered a foundational work of our government? Federalist Papers, any John Locke or Algernon Sidney? How about any of the arguments / pamphlets / publications of the revolutionary period, Thomas Paine's Common Sense for instance?

I've read some, but I'm sure not all on the 2A issue.

 

[Iriemon]

No, No, No. That's not what those clauses mean. There was no intention of excluding the creation of a standing army; these statements (including the 2nd's declarative clause) are merely declarations of principle stating a distrust of overreaching governmental power. It is a vocalization of the fear that a government which relies only upon a standing army risks having a tyrant seize control of it and use those forces as a tool of oppression.

The certainly evidence the suppostion of a well regulated militia, as that was deemed necessary to a free nation.

I could spend an incredible amount of bandwidth explaining this to you but there is a very succinct and eloquent exposition from an important founder and a guy who knows a bit about the English language and who wrote a very important book that explained what the proposed constitution meant by examining the leading principles of the federal constitution.:

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.”

Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787)
​

That book was written to explain what the powers of the federal government would be.

As I stated earlier in this thread, I don't disagree there is utility to gun ownership, including the purpose of arming popular revolt (look how effective it has worked in Iraq). That is a different question whether the 2A intended to give this right as an individual right to own weapons or as part of a well regulated militia, which was deemed as necesary to a free state.

Wouldn't it be just a hoot if, "the whole body of the people [who] are armed," -- who are supposed to be properly situated to resist unconstitutional laws with force, -- who would demand a constitutional amendment that supposedly secured their right to arms, -- later discovered the amendment could be interpreted to "legally" remove their guns from their possession, so as to render their ability to resist impotent?

Jeez, wouldn't that be a great prank! :2razz: :lol: :shock: :doh

I'd guess they'd be just as shocked to learn there is no militia.

The right to arms remains as pertinent today as it was in the 1780's because it isn't about practicality it's about principle. As Webster stated, the armed people stand in opposition to any army this nation could ever muster.

Then they should have put "the right to possess weapons shall not be infringed" in the 2A instead of talking about a "well regulated militia".

It wasn't the "bearing of arms" that they said was necessary to a free state, it was a "well regulated militia."

Madison further explains this principle in the Federalist 46, published January 29, 1788, actually defined those army/armed citizen ratios:.

"The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion 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 citizens with arms in their hands,. . . "
​

Let's scrutinize those numbers.

At that time there were about 3 million people in what would soon be the USA. Standing army = 1% of all persons OR 4% of those "able to bear arms," so, using the upper end of Madison's "standing army" number, 30,000 . . . 30,000 / .04 = 750,000 citizens "able to bear arms," minus the 500,000 citizens "with arms in their hands," means 250,000 will need to borrow a weapon from their neighbor if events required it.

Let's see how Madison's ratio's have held up in the ensuing 220 years.

In present day America there are 300 million or so "total souls;" the present day military force of America stands at about 2.8 million active duty and reserves. That number sits smack dab in the middle of Madison's range of a nation's "standing army" carrying capability. Amazing . . .

Madison notes two subsets, those capable of bearing arms (1/4 or 25% of the total population) and those with arms in their hands (1/5th or 20% of the total population).

So, by Madison's formula 300,000,000 total souls would render a force of 75,000,000 "able to bear arms" and 60,000,000 "with arms in their hands." (backchecking -300,000,000 * 1% = 3,000,000 standing army; 3,000,000 / .04 = 75,000,000 citizens "able to bear arms.")

The exact number of present day gun owners today is not known. The US Dept. of Justice has estimated that 60 - 75 million Americans own between 250 million and 300 million firearms.

Madison envisioned any "standing army" being outnumbered ("opposed" was the word he used) by armed citizens by a factor of 17 to 1; in present day America that ratio is maintained and may have widened to as much as 27 to 1 (if upper estimates of the number of gun owners are to be accepted).

What percent is part of the well regulated militia, which is necessary for a free state?

From where do you discern all that from? Certainly not the state provisions I quoted! None of them even mention militia because organizing the people who freely exercise the right to arms is a state power and these provisions are only recognizing rights of the people exercised independently of any militia enrollment.

Surely you are not arguing that a state needed an amendment in its own constitution to allow itself to arm its own militias????

No, although the constitution does give congress some authority over this.

Even if that were true (and it's not, don't include me in your "we") that circumstance in no way modifies the Constitutional provision in any way, shape or form.

I agree, but the entire reason for the right, the well regulated militia which was necessary for the free state, is absent, unless you count the NG and reserve.

I do not dispute that some lower federal courts have gone off the rails when opining about the 2nd Amendment.

Only two appellate court have held it is an individual right, the other nine have found a collective right in one form or another, I believe.

I would be quite willing to discuss the judicial history of the collective interpretation. Those decisions are exercises in institutional racism and engineered outcomes. The "state's right" interpretation is smoke and mirrors cobbled together in the 1940's for a single reason, to extinguish individual claims of 2nd Amendment protection in the courts of the US.

Could be. I see a logical basis for the proposition that the 2A was for the purpose of a well regulated militia, which is necessary for a free state.

Well, the first is a correct "focus" and the second is a perversion of the ruling.

Another contention in dispute.

Miller is only "ambiguous" if you ignore the keys to the Court's reasoning. They did not decide this case in a vacuum, they used judicial history and treatises of political philosophy to shape their reasoning on how to treat Miller's shotgun because much of the US Attorney's argument was ignored and since no argument was offered by Miller, he was dead.

If the Court had deemed the "well regulated militia being necessary for a free state" language in the 2A as meaningless, upon what basis would it have had for determining the sawed off shotgun prohibition was legal?

One of the most important "keys" is cited most prominently in the body of the decision instead of a footnote. Have you ever read Aymette? Does the fact that there was no appearance for Miller and the Court only read the US Attorney's brief and only heard the US Attorney's arguments, affect your understanding of this decision?

No, please explain.

 

[TurtleDude]

I am curious Iriemon-rather than deal with your attempts to parse the second amendment and limit the right to those in the militia would you kindly explain what clause actually empowers the Federal government to regulate small arms?

 

[Iriemon]

I am curious Iriemon-rather than deal with your attempts to parse the second amendment and limit the right to those in the militia would you kindly explain what clause actually empowers the Federal government to regulate small arms?

Don't know. The catch-all commerce clause I'd guess.

 

[TurtleDude]

Don't know. The catch-all commerce clause I'd guess.

LOL:mrgreen:

 

[Willie Orwontee]

You either fundamentally misunderstand me, or are being purposefully obtuse. I in no way am suggesting that any amendment is impotent because IMO it doesn't matter whether you say it is the grant of a right or a limitation of government.

I understand your argument quite well; it is obvious that you do not cherish the primary principle that this nation is established on . . . All not surrendered is retained. It matters greatly because if you understood that concept you would not be arguing your present position.

Saying we have uninalienable rights is meaningless without definition of what those rights are, isn't it?

No, because our rights are everything NOT conferred to government. The Constitution is built upon principles that acknowledge the existence of inalienable rights and the government established by the Constitution has promised to honor and protect those inalienable rights. It is the citizen's duty to understand the implications of that and to be vigilant to the violation of our rights.

All your troubled machinations aside, our rights are inalienable, because the founding principles say they are. The government is bound by contract to treat them that way -- and the day it doesn't is the day the citizen's original inalienable right to rescind their consent to be governed, by force if necessary, becomes actionable.

I may believe that a women has an unalienable right to choose whether to carry or terminate a pregnancy.

And she certainly does because no power was ever granted to the federal government to impact the reproductive decisions of the individual! Don't you see the incredible damage you leftists have done to this nation? In taking the "I need the government to tell me what my rights are" position instead of the "I'll tell government what its powers are" position you have given the government the chain and shackles to restrict rights.

And whether the inalienable right to an abortion is either explicitly granted, or Govt is expressly proscribed from infringing upon it doesn't really matter much in terms of the ability to have one.

Until the government decides it no longer wishes to "give" you that right; you'll wallow and giggle delighting in your self-imposed degradation of citizenship.

In fact, the latter form (as in the 2A) is less effective because it serves only to limit the powers of the federal government unless expanded to apply to states as well.

If government's exercised their granted powers within the confines of their constitutions our rights would be safe. The provisions of the Bill of Rights are redundant . . . My 11th grade history teacher explained the Bill of Rights like this.

Picture "We the People" as owners of vast lands and a myriad of property holdings.

"We the People" convey by contract, the specifically defined care and limited control of a small number of these parcels of property via the Constitution.

We still own those properties and we alone can void the contract for non-performance by the caretaker, at a later date.

A second document is then generated, consisting of amendments to the first contract.

This second document's only purpose is to list the most valuable types of properties the people retain that are specifically not included in the aforementioned contract. The caretaker is forbidden to assume any role whatsoever regarding these items.

​

What should be thought of a caretaker, a hired-hand, now telling us that it and it alone is the sole owner-operator of some of those "properties" and that it knows how best to care for them or it must dictate how we should utilize them (for our own good of course)?

In my reading on this subject I have found the main theme of his explanation was well represented in the 1788 - 91 period. It is found in many forms in Federalist editorials arguing against the enactment of a Bill of Rights . . .

"[T]he very idea of a bill of rights is a dishonorable one to freemen. What would we think of a gentleman, who, upon hiring a waiting man, should say to him `my friend, please take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain and of speaking and writing any sentiments upon all subjects.` A master reserves to himself... everything else which he has not committed to the care of his servant."

Federal Gazette, July 2, 1789, at 2, col. 1.
​

 

[Willie Orwontee]

If there were no dispute gun regulation laws would not have been upheld.

Huh? Again, even for fundamental rights, there is no "absolute" status. Are you willing to extend and apply your reasoning to other Constitutional rights; the Establishment clause, habeas corpus, arrest and detention, or is it just the right to arms where disputes and disagreements on the scope lead one to fall on the side of restriction and dismissal of individual rights?

Not necessarily. Depends upon which right, who claims it is a right, and whether it is identified and how so.

Please cite your support for that statement. It must be of such compelling magnitude that it crushes the sentiment offered in the following:

"The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights."

UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)
​

That is not my understanding of the word infringed.

OK, and????

OK, then the issue is the reasonable interpretation.

No, the issue is one's knowledge of the founding principles. Just reading the words of the Constitution and then processing them through your personal beliefs and modern lexicon is not "interpreting" the Constitution. Applying the founding principles and the Constitution to modern issues is how the process of interpretation is done; the meaning of the Constitution is not written in sand to be swept away and rewritten with each new tide of judges.

Judges don't "interpret" the Constitution; they "interpret" what impact the unchanging principles of the Constitution have on the issues of the day . . . They apply the Constitution to the issue; not the issue to the Constitution.

Proves my assertion that it is a disputed issue, doesn't it?

It proves that judges are willing to dishonor their duty and write opinions based in political expediency and not the Constitutional merits. So yeah, there is some dispute. It will all soon be exposed and a subject for historians to write about.

The process itself as to what is reasonable or reasonably related is vague.

Just because you are ignorant of the process does not mean it is vague. The Court has many "tests" to gauge the nature of the immunity and when a right meets them it is deemed fundamental. One important test is the treatment of the right in state constitutions; how was the right viewed and how important was the protection considered to be.

The day SCOTUS takes this up will be a bad, bad day for anti-gunners.

The alternative is to not list them, which then affords no protection at all.

Christ on a pink pony . . . The simple fact that no power was conferred to impact the private arms of the citizen is the prohibition against impacting the private arms of the citizen . . . The 2nd Amendment doesn't do much to further the right or expand its protection other than act as a reminder!

I've read some, but I'm sure not all on the 2A issue.

They do not need to be specifically on the right to arms, the simple governmental model the framers endorsed and embraced and used to construct this nation's structure of power eliminates the possibility of your re-construction of the 2nd to be true. Your re-construction forces one to believe that the framers became the tyrants they sought independence from. The simple statement that the framers, by way of the 2nd Amendment, legally restricted the right to arms to only select, government approved arms bearers, is too absurd to even consider. That you think they could (or would be so presumptuous as to think they could) place qualifications or requirements on the exercise of a right they found the citizens freely exercising before and after the Constitution was ratified is ridiculous.

 

[Willie Orwontee]

The certainly evidence the suppostion of a well regulated militia, as that was deemed necessary to a free nation.

Again. the militia concept that the framers embraced is a inseparable layer in this nations foundation. The framers relied heavily on Aristotle, Cicero and Machiavelli for their concept of an armed citizenry. Jefferson called their works along with those of Locke and Sidney, "the elementary books of public right."

If you were to read the works deemed instructional and useful to the founders you would have a different position. If you were to read the works that the framers dismissed and disregarded as instructional and useful, (Hobbes, Bodin, Filmer) and how their thoughts on an armed citizenry aligns with the anti-gun opinion on individual rights, that position would be seen for what it is -- completely unsupportable Constitutionally and against everything the founders believed in.

As I stated earlier in this thread, I don't disagree there is utility to gun ownership, including the purpose of arming popular revolt (look how effective it has worked in Iraq). That is a different question whether the 2A intended to give this right as an individual right to own weapons or as part of a well regulated militia, which was deemed as necesary to a free state.

Whew . . . aren't you tired from all those mental gymnastics? The framers were quite aware of the restrictions and qualifications on the right to arms forced on British subjects; the founders held them in contempt. To argue that the founders would then write and ratify an amendment that somehow, (after all, we are still debating the "vauge," non-descript "meaning" of the provision), in some way, allow government, any government, to impact the right of the people is ludicrous.

To argue also that the 2nd Amendment can be read to only protect those persons formally recognized by the government as arms bearers and then only in the collective entity recognized and supported by the government and that all the "common" citizens are exposed to whatever proscriptions the legislature wishes to enact, is even more ludicrous. Such an offensive interpretation is worse than the condition of British subjects the framers decried.

I'd guess they'd be just as shocked to learn there is no militia.

That the state governments are derelict in their duty to organize does not impact the citizen's right to keep and bear arms. The right is not dependent upon the militia, the militia is dependent upon the armed citizens. The preservation and continuance of the militia is the "object" of the 2nd Amendment; the "means" to achieve the object is to secure the right of the citizen to be armed.

It wasn't the "bearing of arms" that they said was necessary to a free state, it was a "well regulated militia."

Can't have a well regulated militia without the butchers, bakers and candlestick makers being armed.

No, although the constitution does give congress some authority over this.

The militia of the 2nd Amendment is not the militia of Art. 1, §8, cl 16. Nowhere in the Constitution is Congress granted power to impact the arms of the private citizen.

I agree, but the entire reason for the right, the well regulated militia which was necessary for the free state, is absent, unless you count the NG and reserve.

How is the militia absent? Don't 70 million gun owners count? Besides, how do those two entities fulfill the intent of the framers of the 2nd? Aren't both a standing army serving at the pleasure of the federal government? Let's read Richard Henry Lee on your position:

"A militia, when properly formed, are in fact the people themselves, . . . all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided . . . But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expense, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenseless; whereas, 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; . . . The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."

R. Lee, Additional Letters from the Federal Farmer, Philadelphia, 1788 (emphasis added).
​

The free state is secured by the people, armed and ready to restrain illegitimate governmental power. Organized forces of "select militia" EXACTLY like the National Guard, was the epitome of that which is dangerous to a free state.

Only two appellate court have held it is an individual right, the other nine have found a collective right in one form or another, I believe.

OK, and????

Could be. I see a logical basis for the proposition that the 2A was for the purpose of a well regulated militia, which is necessary for a free state.

But your "logic" is not based in any regard to the founding principles of this nation, the sentiments of the founders or the history of the United States of America. It is your opinion offered without any substantiation or appeal to history or the legal record.

Another contention in dispute.

As I said, I would welcome a serious look at those decisions with special attention to their adherence to Supreme Court precedent.

 

[Willie Orwontee]

If the Court had deemed the "well regulated militia being necessary for a free state" language in the 2A as meaningless, upon what basis would it have had for determining the sawed off shotgun prohibition was legal?
No, please explain.

The Court's reasoning for how to treat Miller's shotgun was not based in the wording of the 2nd Amendment; the Amendment itself was ignored as instructional.

UNITED STATES v. MILLER, 307 U.S. 174 (1939) was about the instrument, not the man. let's parse the decision's famous, "In the absence of any evidence" paragraph:

• "In the absence of any evidence[1] tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time[2] 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.[3] Certainly it is not within judicial notice[4] that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[5] Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.[6]

[1] No evidence was presented because we only heard the U.S. Attorney's argument. The appellees did not appear.
[2] We are not making a final judgment regarding this type of weapon. Neither will we exclude the possibility that there may be un-presented evidence showing that this weapon is part of the ordinary military equipment and that its use could contribute to the common defense.
[3] Again, we are only deciding upon the status of the weapon, not the man.
[4] We didn't hear any evidence promoting a short barreled shotgun / militia connection and of course, we didn't look for any on our own.
[5] We are going to add a phrase and condition that was stricken from the proposed 2nd Amendment because . . . ?????
[6] This paragraph cites and draws its reasoning and language from the Tennessee case of Aymette v. State, which held that the kinds of weapons protected are those that are "part of the ordinary military equipment," and suitable "for their common defence." --This guided us on how to treat the weapon in question and to decide if such a firearm is beyond the reach of NFA'34. It explains the object and the means of constitutional right to arms provisions.

In contrast to the federal 2nd Amendment Article I, Section 26 of the Tennessee Constitution (circa 1840) provided:

• "That the free white men of this State have a right to keep and to bear arms for their common defence."

In reflecting on those words, the Tennessee Court said (at pg 158):

• "[E]very free white man may keep and bear arms. But to keep and bear arms for what? ... The object, then, for which the right of keeping and bearing arms is secured is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution . . . As the object for which the right to keep and bear arms is secured is of a general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."

It is very interesting that the Miller Court quotes Aymette verbatim at critical points in its reasoning. It is easy to see why the Miller Court quoted and cited Aymette as instructional on the question of how a sawed-off shotgun should be treated. It is also important to note that the very same passage absolutely and undoubtedly endorses an individual right, rather than a state power.

It recognizes two separate entities.

"[T]he people acting in a body, for their common defence, . . . is "the object for which the [already existing] right to keep and bear arms is secured." The object, the overall intent of this provision and the 2nd Amendment, can not exist without the means to achieve it. Every man has the right to keep the arms of the type usually employed in civilized warfare, that constitute the ordinary military equipment. If the citizen has these arms in his hands, he is able to repel any encroachments upon his and his neighbors rights by those in authority, because, he and his neighbors are capable of acting in concert and situated in the best possible manner to keep in awe those who are in power. If that warning fails, it is their duty to act together and secure their liberties.

To argue that the collective object overrides or negates the individual means to achieve it, demonstrates a disconnect of logic and a great misunderstanding of classical militia theory. It requires us to just conveniently ignore thousands of years of history and dismiss the basic principles of the militia concept endorsed by the framers.

Furthermore, the same passage reiterates the simple and unquestionably ultimate purpose of all right to arms provisions that should never be forgotten; "to keep in awe those who are in power." It is a warning to those who govern us.

That sounds an awful lot like an individual, don't tread on me, type of right.

THOUGHT EXPERIMENT
Do you think the National Guard, "keeps in awe those who are in power?"

If "those in authority" say the individual right does not exist, and act to remove the "arms in their [the citizen's] hands," how are the people, "prepared in the best possible manner to repel any encroachments upon their rights by those in authority?"

Wouldn't that act be EXACTLY the type of encroachment the people are supposed to guard against?

How can anyone say that Miller v. U.S. does not endorse an individual right when the cited works (Aymette is only one) are inspected?

NOW, HERE IS A QUESTION THAT SPEAKS TO THE LOWER FEDERAL COURT'S OPINIONS; READ CAREFULLY . . .

Knowing now the basics of the Miller Court's reasoning, what can be said of all those lower courts that have purposely mis-used Miller to create a collective right "interpretation" from Miller's simple collective object explanation?

"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."

UNITED STATES v. MILLER, 307 U.S. 174 (1939)
​

Here's a big hint as to why the lower court "opinions" are wrong and will fall upon review by SCOTUS . . . The "declaration and guarantee of the Second Amendment" is not a synonym for the "right to keep and bear arms" in the eyes of SCOTUS.

 

[LaMidRighter]

I understand your argument quite well; it is obvious that you do not cherish the primary principle that this nation is established on . . . All not surrendered is retained. It matters greatly because if you understood that concept you would not be arguing your present position.



No, because our rights are everything NOT conferred to government. The Constitution is built upon principles that acknowledge the existence of inalienable rights and the government established by the Constitution has promised to honor and protect those inalienable rights. It is the citizen's duty to understand the implications of that and to be vigilant to the violation of our rights.

All your troubled machinations aside, our rights are inalienable, because the founding principles say they are. The government is bound by contract to treat them that way -- and the day it doesn't is the day the citizen's original inalienable right to rescind their consent to be governed, by force if necessary, becomes actionable.



And she certainly does because no power was ever granted to the federal government to impact the reproductive decisions of the individual! Don't you see the incredible damage you leftists have done to this nation? In taking the "I need the government to tell me what my rights are" position instead of the "I'll tell government what its powers are" position you have given the government the chain and shackles to restrict rights.



Until the government decides it no longer wishes to "give" you that right; you'll wallow and giggle delighting in your self-imposed degradation of citizenship.


If government's exercised their granted powers within the confines of their constitutions our rights would be safe. The provisions of the Bill of Rights are redundant . . . My 11th grade history teacher explained the Bill of Rights like this.

Picture "We the People" as owners of vast lands and a myriad of property holdings.

"We the People" convey by contract, the specifically defined care and limited control of a small number of these parcels of property via the Constitution.

We still own those properties and we alone can void the contract for non-performance by the caretaker, at a later date.

A second document is then generated, consisting of amendments to the first contract.

This second document's only purpose is to list the most valuable types of properties the people retain that are specifically not included in the aforementioned contract. The caretaker is forbidden to assume any role whatsoever regarding these items.

​

What should be thought of a caretaker, a hired-hand, now telling us that it and it alone is the sole owner-operator of some of those "properties" and that it knows how best to care for them or it must dictate how we should utilize them (for our own good of course)?

In my reading on this subject I have found the main theme of his explanation was well represented in the 1788 - 91 period. It is found in many forms in Federalist editorials arguing against the enactment of a Bill of Rights . . .

"[T]he very idea of a bill of rights is a dishonorable one to freemen. What would we think of a gentleman, who, upon hiring a waiting man, should say to him `my friend, please take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain and of speaking and writing any sentiments upon all subjects.` A master reserves to himself... everything else which he has not committed to the care of his servant."

Federal Gazette, July 2, 1789, at 2, col. 1.
​

Very well put, and welcome to the forum.

 

[Iriemon]

I understand your argument quite well; it is obvious that you do not cherish the primary principle that this nation is established on . . . All not surrendered is retained. It matters greatly because if you understood that concept you would not be arguing your present position.

Then upon what possible basis could the federal or state government pass laws that make smoking pot illegal? That was not a right surrendered in the constitution, therefore my right to smoke pot is retained.

Yet there are lots of laws on the books for which I can be thrown in jail for doing that.

Please explain how that can happen given your contention that all rights not surrendered are retained.

No, because our rights are everything NOT conferred to government. The Constitution is built upon principles that acknowledge the existence of inalienable rights and the government established by the Constitution has promised to honor and protect those inalienable rights. It is the citizen's duty to understand the implications of that and to be vigilant to the violation of our rights.

Where in the constitution does it say that the power to make smoking pot illegal is conferred to the Govt.

Under your proposed construction, every law that infringes upon any action would be unconstitutional, and the constitution would have to be amended for any legislation that arguably interfers with someone's perceibed "right."

All your troubled machinations aside, our rights are inalienable, because the founding principles say they are. The government is bound by contract to treat them that way -- and the day it doesn't is the day the citizen's original inalienable right to rescind their consent to be governed, by force if necessary, becomes actionable.

Walk down to the police station and fire up a joint and see how inalienable your rights are.

And she certainly does because no power was ever granted to the federal government to impact the reproductive decisions of the individual! Don't you see the incredible damage you leftists have done to this nation? In taking the "I need the government to tell me what my rights are" position instead of the "I'll tell government what its powers are" position you have given the government the chain and shackles to restrict rights. Until the government decides it no longer wishes to "give" you that right; you'll wallow and giggle delighting in your self-imposed degradation of citizenship.

Sorry, but it is not "leftists" that are trying to infringe upon a woman's inalienable right to have an abortion or my inalienable right to smoke pot. That would be you rightists.

If government's exercised their granted powers within the confines of their constitutions our rights would be safe. The provisions of the Bill of Rights are redundant . . . My 11th grade history teacher explained the Bill of Rights like this. Picture "We the People" as owners of vast lands and a myriad of property holdings.

"We the People" convey by contract, the specifically defined care and limited control of a small number of these parcels of property via the Constitution.

We still own those properties and we alone can void the contract for non-performance by the caretaker, at a later date.

A second document is then generated, consisting of amendments to the first contract.

This second document's only purpose is to list the most valuable types of properties the people retain that are specifically not included in the aforementioned contract. The caretaker is forbidden to assume any role whatsoever regarding these items.

[/INDENT]What should be thought of a caretaker, a hired-hand, now telling us that it and it alone is the sole owner-operator of some of those "properties" and that it knows how best to care for them or it must dictate how we should utilize them (for our own good of course)?

Therefore your argument would be that you and I and that AQ cell down the street have an inalienable right to possess nuclear weapons, since that is an inalienable right that was not one of those things specifically mentioned in the constitution.

In my reading on this subject I have found the main theme of his explanation was well represented in the 1788 - 91 period. It is found in many forms in Federalist editorials arguing against the enactment of a Bill of Rights . . .

"[T]he very idea of a bill of rights is a dishonorable one to freemen. What would we think of a gentleman, who, upon hiring a waiting man, should say to him `my friend, please take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain and of speaking and writing any sentiments upon all subjects.` A master reserves to himself... everything else which he has not committed to the care of his servant."

Federal Gazette, July 2, 1789, at 2, col. 1.
​

That is interesting, but to be honest, I would prefer to have my inalienable rights spelled out in writing, rather than hope that others (including the Govt) agree that what I think is an inalienable right is fact one.​

 

[Harshaw]

Then subtract the number of deaths from guns which were stolen or otherwise obtained illegally . . .

 

[Iriemon]

Huh? Again, even for fundamental rights, there is no "absolute" status. Are you willing to extend and apply your reasoning to other Constitutional rights; the Establishment clause, habeas corpus, arrest and detention, or is it just the right to arms where disputes and disagreements on the scope lead one to fall on the side of restriction and dismissal of individual rights?

That would be a pertinent point if that was the basis upon which gun regulation laws have been upheld.

Please cite your support for that statement. It must be of such compelling magnitude that it crushes the sentiment offered in the following:

"The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights."

UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)
​

Exactly my point. Despite your argument that we have these amorphous inalienable rights, whatever they are, the founders wisely recognized that if they did not spell those rights out the rights were meaningless.

OK, and????

If you assert the 2A means "Every person has the right to arms," the 2A says that is not just a right but in uninfringeable right, therefore "disabling" the right would be unconstitutional, as by definition that is infringing upon it.

Back from post #200

No, the issue is one's knowledge of the founding principles. Just reading the words of the Constitution and then processing them through your personal beliefs and modern lexicon is not "interpreting" the Constitution. Applying the founding principles and the Constitution to modern issues is how the process of interpretation is done; the meaning of the Constitution is not written in sand to be swept away and rewritten with each new tide of judges.

And if you apply rules like "the right is not absolute" and "fundamental and non-fundamental" and the "relevant considerations" are and what "reasonable limitations" can be "reasonably applied" to, what it comes down to is how a court decides the 2A is to be interpreted in light of the vague comments, and it comes down to what they think is a reasonable interpretation.

A court for example, could determine that given "relevant considerations" of how many people can be killed, a ban on assault weapons is a "reasonable limitation" that can be "reasonably applied" to the 2A.

Judges don't "interpret" the Constitution; they "interpret" what impact the unchanging principles of the Constitution have on the issues of the day . . . They apply the Constitution to the issue; not the issue to the Constitution.

Of course they interpret the constitution. Don't be silly.

It proves that judges are willing to dishonor their duty and write opinions based in political expediency and not the Constitutional merits. So yeah, there is some dispute. It will all soon be exposed and a subject for historians to write about.

I call that a disputed issue. Again, back in post #200 or so.

Just because you are ignorant of the process does not mean it is vague. The Court has many "tests" to gauge the nature of the immunity and when a right meets them it is deemed fundamental. One important test is the treatment of the right in state constitutions; how was the right viewed and how important was the protection considered to be.

Phrases like "relevant considerations" and "reasonable limitations" and "reasonably applied" are inherently vague.

The day SCOTUS takes this up will be a bad, bad day for anti-gunners.

Could be. Given the current right-wing make up of the court I wouldn't be surprised.

Christ on a pink pony . . . The simple fact that no power was conferred to impact the private arms of the citizen is the prohibition against impacting the private arms of the citizen . . . The 2nd Amendment doesn't do much to further the right or expand its protection other than act as a reminder!

Oh boy! I'll start building that nuke as is my inalieanable right which was not specifically dlegated to Congress to restrict right!

They do not need to be specifically on the right to arms, the simple governmental model the framers endorsed and embraced and used to construct this nation's structure of power eliminates the possibility of your re-construction of the 2nd to be true. Your re-construction forces one to believe that the framers became the tyrants they sought independence from. The simple statement that the framers, by way of the 2nd Amendment, legally restricted the right to arms to only select, government approved arms bearers, is too absurd to even consider. That you think they could (or would be so presumptuous as to think they could) place qualifications or requirements on the exercise of a right they found the citizens freely exercising before and after the Constitution was ratified is ridiculous.

One would suppose that is why they provided for a well regulated militia, which they specifically said was necessary to a free state.

 

[Harshaw]

One would suppose that is why they provided for a well regulated militia, which they specifically said was necessary to a free state.

Yes. And the way which they provided for it was to ensure that the private ownership of firearms couldn't be infringed. 'Coz, well, that's what a militia is -- citizens with their own weapons.

 

[Iriemon]

Again. the militia concept that the framers embraced is a inseparable layer in this nations foundation. The framers relied heavily on Aristotle, Cicero and Machiavelli for their concept of an armed citizenry.

But they said "well regulated militia" -- not "armed citizenry" in the 2A.

If you were to read the works deemed instructional and useful to the founders you would have a different position. If you were to read the works that the framers dismissed and disregarded as instructional and useful, (Hobbes, Bodin, Filmer) and how their thoughts on an armed citizenry aligns with the anti-gun opinion on individual rights, that position would be seen for what it is -- completely unsupportable Constitutionally and against everything the founders believed in.

So abide by their wishes and promote the recreation of a well regulated militia. Then citizens who are mandatorily members of the well regulated militia would have the right to keep and bear arms.

Whew . . . aren't you tired from all those mental gymnastics? The framers were quite aware of the restrictions and qualifications on the right to arms forced on British subjects; the founders held them in contempt. To argue that the founders would then write and ratify an amendment that somehow, (after all, we are still debating the "vauge," non-descript "meaning" of the provision), in some way, allow government, any government, to impact the right of the people is ludicrous.

Yes, because they would not have envisioned a nation without a well regulated militia.

To argue also that the 2nd Amendment can be read to only protect those persons formally recognized by the government as arms bearers and then only in the collective entity recognized and supported by the government and that all the "common" citizens are exposed to whatever proscriptions the legislature wishes to enact, is even more ludicrous. Such an offensive interpretation is worse than the condition of British subjects the framers decried.

I disagree that it wouldbe ludicrious could think that if you informed the founding fathers that weapons like machine guns, RPGs, LAWs and the like would be invented and the militia abandoned, that every Tom Dick and Jane out their should have the unfettered right to owns such weapons. Not to mention thinks like nukes.

That the state governments are derelict in their duty to organize does not impact the citizen's right to keep and bear arms. The right is not dependent upon the militia, the militia is dependent upon the armed citizens. The preservation and continuance of the militia is the "object" of the 2nd Amendment; the "means" to achieve the object is to secure the right of the citizen to be armed.

That is the issue in dispute.

Can't have a well regulated militia without the butchers, bakers and candlestick makers being armed.

Can't have a well regulated militia without training, discipline, and organization.

The militia of the 2nd Amendment is not the militia of Art. 1, §8, cl 16. Nowhere in the Constitution is Congress granted power to impact the arms of the private citizen.

What is the difference between these two types of militias, and where is it indicated they are different?

How is the militia absent? Don't 70 million gun owners count?

How does mere gun ownership make a militia?

Besides, how do those two entities fulfill the intent of the framers of the 2nd? Aren't both a standing army serving at the pleasure of the federal government? Let's read Richard Henry Lee on your position:

"A militia, when properly formed, are in fact the people themselves, . . . all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided . . . But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expense, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenseless; whereas, 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; . . . The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."

R. Lee, Additional Letters from the Federal Farmer, Philadelphia, 1788 (emphasis added).
​

The free state is secured by the people, armed and ready to restrain illegitimate governmental power. Organized forces of "select militia" EXACTLY like the National Guard, was the epitome of that which is dangerous to a free state.

This suggests the militia is not critical. Yet the founders who passed the 2A obviously disagreed, they said that a well regulated militia was necessary to a free state.

OK, and????

It is the vast majority of the appellate courts which have "gone off the rails" on this one.

But your "logic" is not based in any regard to the founding principles of this nation, the sentiments of the founders or the history of the United States of America. It is your opinion offered without any substantiation or appeal to history or the legal record.

That is just your opinon. I am certainly not the only one with "my opinion" on the subject, and in fact that vast bulk of the federal courts agree with "my opinion." I understand you think they are wrong. That is just your opinion.

I disagree "my opinion" is not based in any regard to the founding principles of this nation. The founders obviously believed that a well regulated militia was crucial to the freedom of the nation, they put it in the scope of Congressional authority and in the 2A. If you have a well regulated militia and deem it crucial to the security of a free state, then saying the citizens shall have the right to keep and bear the arms that are used by the militia makes perfect sense.

When you change that scenario, remove the well regulated militia and talk about machine guns instead of flintlocks, you are talking about an entirely different scenario there is no reason to think the founders contemplated.

As I said, I would welcome a serious look at those decisions with special attention to their adherence to Supreme Court precedent.

Fire away

 

[Iriemon]

The Court's reasoning for how to treat Miller's shotgun was not based in the wording of the 2nd Amendment; the Amendment itself was ignored as instructional.

UNITED STATES v. MILLER, 307 U.S. 174 (1939) was about the instrument, not the man. let's parse the decision's famous, "In the absence of any evidence" paragraph:

• "In the absence of any evidence[1] tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time[2] has some reasonable relationship to the preservation or efficiency of a well regulated militia,

• 
  
  Second Amendment:
  
  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.
  
  Sure looks like that is the wording from the 2A to me.
  
  

  we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.[3] Certainly it is not within judicial notice[4] that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[5] Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.[6]

[1] No evidence was presented because we only heard the U.S. Attorney's argument. The appellees did not appear.
[2] We are not making a final judgment regarding this type of weapon. Neither will we exclude the possibility that there may be un-presented evidence showing that this weapon is part of the ordinary military equipment and that its use could contribute to the common defense.
[3] Again, we are only deciding upon the status of the weapon, not the man.
[4] We didn't hear any evidence promoting a short barreled shotgun / militia connection and of course, we didn't look for any on our own.
[5] We are going to add a phrase and condition that was stricken from the proposed 2nd Amendment because . . . ?????
[6] This paragraph cites and draws its reasoning and language from the Tennessee case of Aymette v. State, which held that the kinds of weapons protected are those that are "part of the ordinary military equipment," and suitable "for their common defence." --This guided us on how to treat the weapon in question and to decide if such a firearm is beyond the reach of NFA'34. It explains the object and the means of constitutional right to arms provisions.

In contrast to the federal 2nd Amendment Article I, Section 26 of the Tennessee Constitution (circa 1840) provided:

• "That the free white men of this State have a right to keep and to bear arms for their common defence."

In reflecting on those words, the Tennessee Court said (at pg 158):

• "[E]very free white man may keep and bear arms. But to keep and bear arms for what? ... The object, then, for which the right of keeping and bearing arms is secured is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution . . . As the object for which the right to keep and bear arms is secured is of a general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."

It is very interesting that the Miller Court quotes Aymette verbatim at critical points in its reasoning. It is easy to see why the Miller Court quoted and cited Aymette as instructional on the question of how a sawed-off shotgun should be treated. It is also important to note that the very same passage absolutely and undoubtedly endorses an individual right, rather than a state power.

The Tennessee language is substantially different that the 2A. It does not talk about a well regulated militia, and I agree for that reason is a broader conferring of a right to keep weapons. But note the consequence. Because the Tenn statute conveys the broad right, it was necessary for the legislature to specify who has that right: Free white men. That excluded the possibility of undesirables (ie unfree men (convicts) and nonwhites) from possessing weapons.

Surely those who passed the 2A did not intend for nonwhites and unfree men to possess weapons. So why didn't they insist on such a restriction as well? Because making the right pursuant to a well regulated militia, that restriction wasn't necessary. Nonwhites and convicts would not be part of the well regulated militia in any case, so the the restriction (free white men) that was necessary as part of the broader Tenn law would have have been necessary for what the 2A was addressing.

"[T]he people acting in a body, for their common defence, . . . is "the object for which the [already existing] right to keep and bear arms is secured." The object, the overall intent of this provision and the 2nd Amendment, can not exist without the means to achieve it. Every man has the right to keep the arms of the type usually employed in civilized warfare, that constitute the ordinary military equipment. If the citizen has these arms in his hands, he is able to repel any encroachments upon his and his neighbors rights by those in authority, because, he and his neighbors are capable of acting in concert and situated in the best possible manner to keep in awe those who are in power. If that warning fails, it is their duty to act together and secure their liberties.

To argue that the collective object overrides or negates the individual means to achieve it, demonstrates a disconnect of logic and a great misunderstanding of classical militia theory. It requires us to just conveniently ignore thousands of years of history and dismiss the basic principles of the militia concept endorsed by the framers.

Yes, because the modern state, lacking a militia and with weapons of inconceivably greater destruction than the flintlock, was not a concept the framers could have contemplated.

Furthermore, the same passage reiterates the simple and unquestionably ultimate purpose of all right to arms provisions that should never be forgotten; "to keep in awe those who are in power." It is a warning to those who govern us.

That perhaps was why they deemed a well regulated militia was necessary to a free state.

That sounds an awful lot like an individual, don't tread on me, type of right.

Apparently the snake was less a symbol of individual liberties than the American colonies:

As the American Revolution grew closer, the snake began to see more use as a symbol of the colonies.

Gadsden flag - Wikipedia, the free encyclopedia

THOUGHT EXPERIMENT
Do you think the National Guard, "keeps in awe those who are in power?"

If "those in authority" say the individual right does not exist, and act to remove the "arms in their [the citizen's] hands," how are the people, "prepared in the best possible manner to repel any encroachments upon their rights by those in authority?"

Wouldn't that act be EXACTLY the type of encroachment the people are supposed to guard against?

How would the well regulated militia do it?

I agree there is utility in gun ownership, including for use in an insurgency. We can see how important this is to the insurgency in Iraq, where the weapons are being effectively employed to repel government enroachment.

In fact, some misguided conservatives on this forum are proposing we bomb Iran, simply because Iran is proving those insurgents with their inalienable right to bear arms!

However, the issue is what the 2A mean, not what we think about the utility of insurgents being armed.

How can anyone say that Miller v. U.S. does not endorse an individual right when the cited works (Aymette is only one) are inspected?

How can anyone say that Miller stands for the proposition that there is a individual right to own weapons, when they upheld a law prohibiting ownership of a shotgun because it was not "reasonably related to a well regualted militia?"

NOW, HERE IS A QUESTION THAT SPEAKS TO THE LOWER FEDERAL COURT'S OPINIONS; READ CAREFULLY . . .

Knowing now the basics of the Miller Court's reasoning, what can be said of all those lower courts that have purposely mis-used Miller to create a collective right "interpretation" from Miller's simple collective object explanation?

"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."

UNITED STATES v. MILLER, 307 U.S. 174 (1939)
​

Here's a big hint as to why the lower court "opinions" are wrong and will fall upon review by SCOTUS . . . The "declaration and guarantee of the Second Amendment" is not a synonym for the "right to keep and bear arms" in the eyes of SCOTUS.

Here is that text, including the part you omitted:

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."​

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.

Reading that language, how could you possibly argue that Miller says anything other than the 2A was passed With "obvious purpose to assure the continuation and render possible the effectiveness of" a well regulated militia? That is clearly what this text is referring to!

(Interesting that in that section outlining the purpose of the amendment -- suppress insurrections and repel invasions -- did not include to arm an insurrection against the Govt. To the contrary, this passage indicates that the right to bear arms was created to arm the militia for use as an instrument to suppress, not enable, insurrections, and repel invasions, and thus was in that light deemed to be "necessary to a free state".)

 

[Iriemon]

Yes. And the way which they provided for it was to ensure that the private ownership of firearms couldn't be infringed. 'Coz, well, that's what a militia is -- citizens with their own weapons.

Accroding the Miller, a well regulated militia is much more than that. This was discussed earlier in the thread several pages back.

BTW, the 2A says nothing about ownership of weapons, but the right to "keep and bear" arms. That may have implied ownership, but the amendment does not say the right to "own" weapons.

 

[Harshaw]

Accroding the Miller, a well regulated militia is much more than that. This was discussed earlier in the thread several pages back.

BTW, the 2A says nothing about ownership of weapons, but the right to "keep and bear" arms. That may have implied ownership, but the amendment does not say the right to "own" weapons.

The Miller Court stated that the ownership of any weapon which bears a reasonable relationship to the preservation of a well-regulated militia is protected by the 2A. The test was concerning the weapon, not the person. It did not consider whether or not Miller himself was the member of a militia, as would be necessary for it to bolster your point.

Had the Court considered some kind of formal militia membership to be a necessary requirement, it simply would have dismissed for lack of standing on Miller's part.

"BTW," check out the definition of "militia." Can't have a militia without private ownership.

I'd have you consult the Federalist Papers, too, but that's probably a waste of time.

 

[Iriemon]

The Miller Court stated that the ownership of any weapon which bears a reasonable relationship to the preservation of a well-regulated militia is protected by the 2A. The test was concerning the weapon, not the person. It did not consider whether or not Miller himself was the member of a militia, as would be necessary for it to bolster your point.

Had the Court considered some kind of formal militia membership to be a necessary requirement, it simply would have dismissed for lack of standing on Miller's part.

I acknowledged early in this thread that you can read different parts of Miller to support both positions in the debate.

"BTW," check out the definition of "militia." Can't have a militia without private ownership.

OK.

Answers.com:

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.

I see nothing in the definition that would necessitate private ownership of weapons.

I'd have you consult the Federalist Papers, too, but that's probably a waste of time.

Well, it is the Constitution that controls -- not the Federalist Papers, which were written by Federalists.

 

[Harshaw]

I acknowledged early in this thread that you can read different parts of Miller to support both positions in the debate.

You actually argued what I said -- that the militia is preserved through the right of the people to keep and bear arms.

Just as, by the way, if it said "The right to hold town hall meetings . . . the right of the people to peaceably assemble shall not be infringed" does not imply that if they're not holding town hall meetings, that the right disappears, the wording of the 2A does not imply that regular militia musterings are a condition of the right of the people to keep and bear arms.

OK.

Answers.com:

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.

I see nothing in the definition that would necessitate private ownership of weapons.

The experiences of Lexington, Concord, and a host of other seizings of common arms led the Framers to come to different conclusions.

The entire concept of "militia" came from the English concept of a "fyrd," which very much entailed Englishmen coming together with their own arms.

Well, it is the Constitution that controls -- not the Federalist Papers, which were written by Federalists.

It's funny -- you have no problem getting into the minds of the Framers by saying "if they meant THIS, they would have said THAT" -- but the actual expressions of the minds of the Framers vis-a-vis the meanings of what they wrote are out-of-bounds.

You're quite right that plain language is the first step in interpretation, but when that doesn't lead to a solid conclusion, ancillary writings by the authors of the provisions in question are very much fair game.

 

[Iriemon]

You actually argued what I said -- that the militia is preserved through the right of the people to keep and bear arms.

What militia?

Just as, by the way, if it said "The right to hold town hall meetings . . . the right of the people to peaceably assemble shall not be infringed" does not imply that if they're not holding town hall meetings, that the right disappears, the wording of the 2A does not imply that regular militia musterings are a condition of the right of the people to keep and bear arms.

That is a valid argument. Thought it would also create an argument that the right of free speech was given for the purpose of town meetings which are necessary to a free state.

One would have expected that if Congress intended that all the people, including presumably blacks, loons and felons, to be able to own weapons, they would have said: "The right of the people to own and posses weapons shall not be infringed" and left it at that.

The experiences of Lexington, Concord, and a host of other seizings of common arms led the Framers to come to different conclusions.

The entire concept of "militia" came from the English concept of a "fyrd," which very much entailed Englishmen coming together with their own arms.

I do not deny that the founders believe that a well regulated militia was crucial for the security of a free state, and that to have a well regulated militia, it was necessary for the poeple to have the right to keep and bear arms.

It's funny -- you have no problem getting into the minds of the Framers by saying "if they meant THIS, they would have said THAT" -- but the actual expressions of the minds of the Framers vis-a-vis the meanings of what they wrote are out-of-bounds.

I'm not sure I follow, but I think the 2A should be considered in its entirety:

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.

It is those arguing that this language creates a right in an individual to own weapons who are ignoring the actual expression by contending that the first half of the amendment is superfluous.

You're quite right that plain language is the first step in interpretation, but when that doesn't lead to a solid conclusion, ancillary writings by the authors of the provisions in question are very much fair game.

I agree that is a factor considered, but its not like a contract where the intent of the two parties signing the contract can be examined. In a statute (or constitution) it is not the author's intent that matters, because it is not the author who creates the law. Rather, it is those who vote on the statute and pass it into law whose intent that is at issue, something much more difficult (and imprecise) to divine.

 

[TurtleDude]

The Miller Court stated that the ownership of any weapon which bears a reasonable relationship to the preservation of a well-regulated militia is protected by the 2A. The test was concerning the weapon, not the person. It did not consider whether or not Miller himself was the member of a militia, as would be necessary for it to bolster your point.

Had the Court considered some kind of formal militia membership to be a necessary requirement, it simply would have dismissed for lack of standing on Miller's part.

"BTW," check out the definition of "militia." Can't have a militia without private ownership.

I'd have you consult the Federalist Papers, too, but that's probably a waste of time.

Iriemon wants guns to be regulated so he engages in an outcome based examination of an amendment that only makes sense as a guarantee of an individual right. That he admits that is the commerce clause which allows federal gun regulation-a concept that was arrived upon only in 1934 proves my point.