I think the jury's still out on that. We tend to take certain things for granted until it's too late. At the very least, it's necessary to have a well armed citizenry. Having as large a standing army as we do with a disarmed citizenry is extremely imprudent, in my opinion.

But of course, that has nothing to do with answering what the 2nd Amendment says as it is currently.

No, it doesn't bother me. But you don't just read the second clause and ignore the first. The right is being protected in the constitution because a well-regulated militia is necessary to the security of a free state. So, I think we should either have a well-regulated militia or re-examine why the right needs to be protected in the Constitution. I'm not saying the right doesn't need to be protected, I think it should to some extent.




oookay. A preamble states the reason or intent for a law. If the reason or intent no longer exists for a law, why should that law exist?

The point I was trying to get across is that the questions for debate don't ask whether or not the law should exist, they only ask what the law says. But in any case, I gave my reasons for why I think the law should still exist.

And I gave my answer to the debate questions.

I do agree that there should be some protection of the right to keep and bear arms. I think this particular Amendment should be re-examined because it appears to be outdated - it's reason for existing, as written, no longer exist. Being that there appears to be constant conflict regarding the ability to limit this right in today's world, I think a re-examination would be prudent.

In 2005, there were 109 million households, 45-50% of those households have guns, so, say there are 54 million households with guns in them. Of those 54 million, let’s assume that 1/3 are not trained…that’s 18 million + (assuming there is more than one person in each household) untrained gun owners. And what do you want to bet they are the ones with the multi-gun arsenals?

The truth is, there are a LOT of untrained gun owners out there.

And Artemise, you're getting more than a little paranoid there.

I know Artemise is quite capable of sticking up for herself, but it would be nice to see somebody actually address the points she made rather than just calling her paranoid.

The root of this issue is for the populace of our country to be able to stand and rise against a tyrannical government. Now Artemise and I may have differing opinions on which government that is, or will be. Without an armed citizenry, how do you rise up against a tyrannical government? Protest, whine, and complain?

Define the threshold for "tyrannical" government. When does that right kick in?

Define the minimum requirements to be part of an unorganized militia.

The point is, if you beleive we have a right to overthrow our government, when can we do it and how many do we need in a group before we can legally begin?

You can never legally begin. There is no law protecting the right to overthrow the government.

This doesn't mean we don't have the right to make the attempt. It just means that the right to overthrow is not guaranteed in the Constitution. In other words, you aren't protected if you fail.

The "constant conflict" is a result of the fact that there are powerful political forces implacably hostile to this right, who are using all manner of lies and irrational fearmongering to undermine it. I see no reason why any of it should be dignified with a reexamination of our constitutional protections.

But if you do, I'd be happy to respond further on an appropriate thread. I won't deal with that further on this one.

So, let me get this straight. The second amendment protects our right to perform an illegal act?

How many laws or areas of law protect our right to perform other illegal acts? Or is violently overthrowing our government the only one?

Some how it seems that the Founder's intent has been distorted quite badly here.

The idea of having a militia that's armed is to keep the government in check! Not to over throw them. Should the government think about trying to run roughshod over the populace the armed populace has the ability to fight back.

Stop thinking in terms of legality and think about a populace trying to rise up above a government that is trying to control them.

Don't you think Washington, Jefferson, and many more broke many British 'laws' in forming this country?

The 2nd Amendment in no way protects the right to overthrow the government. Overthrowing the government would be an illegal act. The 2nd Amendment merely gives citizens the means to commit that necessary - the founders might say obligatory - but illegal act should the government become tyrannous.

Well, it is obvious from these speculations that you are ignorant of history. Guns were not all that plentiful, even on the frontier. Game was by no means a critical source of food in most places. If it had been, people would have starved. The most important things you need to go west were not a gun and powder, but an iron pot and a hoe. True enough, many people had guns; many did not. There was never that much game in the eastern woodlands. Even the Shawnee, a tribe much more devoted to hunting than most others, hunted chiefly in winter and spent most of the other months growing corn and squash. The Iroquois had six big festivals: New Year; Maple; Corn Planting; Strawberry; Green Corn; and Harvest. That tells you something about how important hunting was, even to these native people who were much better woodsmen than our ancestors.

When an armed force was on the march in the eastern woodlands, even a native one, it had to carry absolutely all of its own food. There simply wasn't enough game to make hunting worth the time. Starvation was, indeed, the principle check on the duration of military campaigns.

You don't seem to understand just how poor the typical frontier community was. These were pretty much the dregs of society, escaped endentured servants and the like, who came to the frontier because they had no place else to go. Just a cow was a big luxury for a family.

History is replete with accounts of frontier militia musters where many people showed up with no, or with useless, firearms. I have already cited that in western Virginia in 1774; but there are others. When the Pennsylvania militia slaughtered 96 native Anabaptist converts in Gnadenhutten, Ohio in 1782 (twenty-eight men; twenty-nine women; thirty-nine children), they used a cooper's mallet, smacking them one by one on the top of their heads. Do you know why? They didn't have that much powder and shot!

In any case, this is all somewhat immaterial to the 2nd Amendment, since "well regulated" must certainly have meant, to sensible people of the time, having officers and a chain of command -- particularly since the first thing they did when the mustered the militia was elect officers and institute a chain of command!

Further in contradiction to your speculations, the document does not say, "a sufficiency of arms being necessary to the replenishment of food and the well-being of the people;" it says, "a well regulated militia being necessary to the defense of the state.

So you really are just substituing airy speculation for any recognition of the meaning of words, or the realities of history. "Militia" was a term with a most definite and widely understood meaning. It was not a metphor.



Absolute fantasy. What, does it say, "An armed populace being necessary to keep the government in check?" It says, the defense of the state, not the overthrow. Do you know what "strict construction" means?

Sure, People at that time were mostly vegetarians! Because food is so easy to grow, so plentiful, especially in winter, especially being new to a continent, not knowing the food plants, they would never have hunted known protein animals...with guns!
Ok , lets pretend........they didnt have guns or gun powder knowledge, guns .... bad..... not for food.....not for defense. They made it on seeds and prayer and spears? WE know this is not the case. Dont be stupid.
They shot every turkey, deer and elk in their sight to feed themselves with guns. Game was a primary food source. Protein is STILL a primary food source.
Dont lie about this. The spring vegitaton clearing / game hunting and preservation/Fall harvest and winter hard time lasting dried meats/ and late fall vegetables is a cycle that is eternal.

Vladimir,
The eastern woodlands? 1774? The East was decimated early on, by new settlers who, you are correct, surely would have died without learning about agriculture from east coast tribes. It was a short time before they decimated game and slaughtered the indians that taught them how to live. The Thanksgiving Day massacres, many of them, until Lincoln called for just a one day a year ceremony of genocidal massacre. Look it up!

The mid western and south western tribes were hunter-gatherer nomads, even as Red Cloud was being hunted and asked to 'show up' for treaty meetings to the 'Great White Father, he was far North, probably in what we know as Canada, Montana and North Dakota saying he was on hunting trips to feed his people and would not come down until hunting season was over, a huge frustration to the euro- military. Indians already had guns at this point, having been traded them by whites. The (south-western) Apaches already had guns or they couldn't have put up such resistance against the US Cavalry. The Mexican natives had guns as well, so did the Mexican army which were trying to keep the Apaches from stealing horses and cattle and running them across the border.

You forget the mass slaughter of buffalo from trains, lots of guns and ammo, obviously lots of gunpowder as well, but more importantly you obviously have not traveled WEST in the US to small towns that still picture in photographs , indians and whites all in lines with rifles, shotguns and handguns. If the WHITE population was so poor of guns, how did the indians -our enemies- have them so blatantly, and be photographed with them as if normal? Go to Wyoming, Montana, S. and N. Dakota, or Alaska and learn something about GUNS.
Go to old West towns in the US, where you can see old west photographs of plenty of women brandishing guns.

You are making up a whole lot of crap and lies about our history in order to see gun control here, some lies you are reading in books and spewing as real. The photographic and historical evidence shows an absolute contrary to what you have been brainwashed to believe, but I wager you have never traveled the west. I would like nothing more than to show you the west, and prove the lies to you face to face.

1. A population should NOT give control over to its government. Governments are by their very nature corrupt and desire to limit liberty of people, liberation and equality does not serve them.
2. Private Arms protect the population from Tyranny, not necessarily individually but collectively. An armed population worries a tyrannical government more than a disarmed one.


It does not say ,'"a well regulated militia being necessary to the defense of the state." See you lie about what you want it to say.

It says : 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.

Believe you, me, the right of the people to keep and bear arms is way about the militia. How can you have a militia if you disarm people?

Look , Id love to pussy foot around the idiot liberals that think the government should take away our guns, and render us lame and mute we actually are in a police state and we need more guns to protect ourselves because WE are not the enemy but no one is getting it, so thats just going to wash off a ducks back. Idiots will march themselves into disarmament and desire the government Nanny in control, because adults in America need a baby sitter.

Well you have the babysitters from hell.

Wake UP! 911 Truth, any city, any state.

It says "being necessary to the security of a free State". I read that as both necessary for defense and the preservation of liberty. Even the strictest constructionist could agree with that.

Well, dear Artemise, the "eastern woodlands" customarily refers to the forest that began on the Atlantic seaboard and extended west about as far as the Mississippi. I am not talking about the first colonists but about the frontier in 1770-1790, which is period relevant to the founder's intent in the 2nd Amendment. You apparently are not aware that except in eastern Kentucky and Tennessee, settlement west of the Appalachians did not make much progress until 1795 or so; settlement north and west of the Ohio began, roughly, also around 1795. The most important military forces, by far, in these regions were the Virginia and Pennsylvania miliatias, during such times as they were mustered. As I have said repeatedly, "militia" was a term with quite definite meaning, not a metaphor.

No, nobody was a vegetarian in those days; nobody could afford to be. But the fact remains, meat was a supplement to the diet of most people in the west, not a staple.
I'm not saying that guns weren't important or that gun ownership wasn't widespread; I am not saying that people weren't quite happy to have venison when they could get it; I am saying that the ubiquity and importance of firearms and hunting in those time is much less than assumed by many people, including you.

You really should do some reading before you post more of your ignorant speculations about the nature of life in those places and times. A useful and entertaining place to begin is A Company of Heroes: The American Frontier 1775-1782 by Dale Van Avery. It is out of print, but available, and most likely you can find it in your local library. There is also a very good series of works called Everyday Life, and some of them pertain to the period we're talking about.



The security of a state can hardly be confused with the facilitation of rebellion.

Vlad... Mrs. Pigpen nor I are suggesting the 2nd Amendment is calling for or facilitates rebellion. The Militia and the Armed people are for security as stated. The FF were clearly worried about a tyrannical Government, what with just getting rid of one, arising here in America and saw Militias made of Armed people as a good way to keep that from happening.

I suppose if the founders were thinking in purely Communist terms, that would be true. But they specifically stated that the amendment's purpose was the security of a free state. That means, as they made it crystal clear in the Declaration of Independence, having the ability to throw off a tyrannical one.

As others have mentioned, the key word is 'free' there. I would add, though, the words 'a free state' in its entirety are important. Not "the free state". Seems to me that was a significant selective choice of words.

It's kind of like saying, "Because everyone loves a free car, we will make it look like it costs them nothing to buy one."


What is necessary to make a free State secure? A well-regulated militia.

These supposed rights of rebellion are totally outside the scope of the Constitution and have never been upheld in a law court. Do you know what happened to Daniel Shays? To John Brown? Or, for that matter, to Jefferson Davis?

If we ever took seriously this right of rebellion, we would have no basis for restricting heavy weapons, hell, even tactical nuclear ones, since these are entirely useful for purposes of rebellion. I'll keep an 80mm mortar mounted on my deck in case I decide it's necessary to take up arms against an unjust government in Washington?

I'll tell you what, defenders of the Right of Rebellion, you take 500 citizens armed with deer rifles and Glock Nines, and I'll take one fifth that number of, oh, say, Zambian paratroops backed up by a few jeeps mounting 50 caliber machine guns. Have any idea who would win? I do. And I didn't even call up the Marines or the 82nd Airborne, or call in a strike by a helicopter gunship; I didn't need to. If the supposed right to bear arms rests on the likelihood of a rebellion that would have any chance of overthrowing a modern government, it's piece of fantasy from La-La-La Cloud-Cuckoo Land.

Its obvious that nobody is going to find common ground on this issue as people are reading the same line over and over but seeing different things. But there are two things that I am positive of. Firstly, the 2nd Amendment in no way permits people to hold RPGs or .50 caliber sniper rifles as a means of self-defense. Secondly, it in no way permits the outright banning of guns from the populace. These are two things I am sure of. Whats important, is finding where the middle ground resides.

Everyone is getting hung up on the part of the Amendment than mentions a "a well regulated militia..." Truth be told this debate that we are having is EXACTLY the reason that federalists did not want to have the Bill of Rights in the first place. As Hamilton commented: "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?" They believed that if they were forced to list what rights that American citizens would have, that anything NOT listed would not be a right. But we do have a Bill of Rights and we are stuck with interpreting it. When it comes to the militia, many people theorize that the right to keep and bear arms is applicable only when it comes to that militia which has been interpreted as a State's National Guard. There are a few problems with this thesis. First, the National Guard is a branch of the US Army and can be federalized whenever the President commands it to be. So the while the loyalty may be to the state's governor most of the time, one order puts that loyalty squarely under the power of the federal government which I do not think is what the FFs had in mind. Secondly, there are no collective rights in the Bill of Rights. Freedom of speech, press, assembly, of the accused, against search & seizure, are all individual rights. The Second Amendment is also an individual right. The FFs made this clear when they said "the right of the people to keep and bear arms shall not be infringed." They didn't say the right of the militia or the right of the states because it is purely an individual right that cannot be infringed. Thirdly, how is it possible for a militia to be formed if there are no weapons by which they can use? I mean if we restrict gun ownership only to militias, then one would have to form a militia first before it has access to firearms. The logic of that is so ludicrous it isn't worth going further. Fourthly, the purpose for the right to keep and bear arms has no effect on the right to keep and bear arms. The Second Amendment should be read as:

BECAUSE A well regulated Militia, being necessary to the security of a free State,//////////// the right of the people to keep and bear Arms, shall not be infringed.

The reason that we have the right to keep and bear arms is insignificant to the point that we have the right. It would be as if the Founders said that "The ability to express one's political opinion, being necessary to the existence of democracy, the freedom of speech shall not be infringed." Does it matter why we have freedom of speech? No. What matters is that we have it. The modern interpretation of the Second Amendment is assuming that there is only ONE reason that the right to keep and bear arms is applicable which is far from the truth. That's why we have a Ninth Amendment.

Again, the right to have a rocket launcher does not exist, but neither does the complete banning of firearms from the hands of the people. The Founders could not envision automatic weapons or smart bombs, but nor could they invision telecommunications or the Internet. Advances in technology have nothing to do with the original intention of the law so justification for such measures need to be found elsewhere.

If I were to offer a 21st century re-wording so that the principles inherent in the original were clear to all our modern and enlightened citizens it would go like this:

WE DECLARE: The existence and viability of an adequately armed citizen militia (the body of citizens that are capable of bearing arms and capable of acting in concert) is necessary to the security of any Nation established as a Constitutional Republic and founded on the principle of securing individual liberty from both foreign and domestic threats.

WE AFFIRM AND SECURE: To ensure that the preceding condition forever exists in the United States of America, the pre-existing, individual right of the people to keep and bear arms is hereby forever secured from governmental infringement.

WE HOLD: The federal government is rendered powerless to impair the people's access to those types of personal weaponry usually employed in civilized warfare and that constitute the ordinary military equipment, or any arm with military usefulness. All governmental divisions (including the States and all lower political subdivisions of government) are prohibited to disarm any individual without just cause and due process for actual crimes committed. If the federal government or state governments are remiss in establishing a code of discipline for the organization of the militia this in no way impacts the right to arms of the people.

All citizens above the age of majority and in certain circumstances, non-citizens who have been awarded legal resident status.



The right to "keep" certainly flows into the right to "use."

---------------

I've read thru this whole thread and I have found it entertaining but also frustrating. Nobody seems capable of recognizing the right to arms exists separately from the Amendment written to secure it. I really don't get the ponderous parsing of the words by the members here if it is settled that the existence of the right to arms is not dependent on the Constitution in any way.

All this linguistic analysis is pointless, the principles, intent (object) and lexicon of the Amendment are to be interpreted and applied to the contested law, not the right. I don't need SCOTUS to tell me what my rights are . . . It is not for any government agent to determine if a right exists, or its scope, or whether it is politically acceptable, only whether a law enacted is beyond the strictly limited defined powers delegated to the legislature.

My right to keep and bear arms predates the Constitution and SCOTUS. Neither have any legitimate import on the extent of my rights, only of laws.



The right to rebel is certainly within the right to consent to be governed isn't it? What is the right to consent without the right to rescind that consent?

What we, the "defenders of the Right of Rebellion' are discussing is a situation where the government has so overstepped its authority that it is no longer the government established by the Constitution so it can no longer claim that document's protections.

The question you must ask yourself is, at what point would you join the rebellion? How many citizens, even if they are just deluded gun nuts are you willing to applaud being killed? What about other so called "rights"? What about warrantless searches for guns or arrest and detainment without charge? Will you also endorse bulldozing neighborhoods, using beacon homing weapons to take out a rebel TV or radio station? How about the burning of an opposition newspaper? Will this put-down of rebels be surgical with limited collateral damage or will women and children be cannon fodder too? What percentage of citizens could be "disappeared" and have the government still enjoy the majority's vote in nice fair elections?

Did you cheer when the Branch Davidian compound was burning?

While you grant the citizens a 5 / 1 advantage, Madison envisioned the standing army of the USA being outnumbered ("opposed" was the word he used) by armed citizens by a factor of 17 to 1. I don't want to alarm you but in present day America that ratio may have widened to as much as 30 to 1.

The founders certainly desired a large percentage of the citizenry to be properly situated to resist government with violence.

It is indisputable that with the enactment of the 2nd Amendment, that is the condition they intended to preserve.

Except for the fact that almost all court rulings - with only a few exceptions - have ruled contrary to what you call "indisputable", you have a point.

The only fact that remains is that the 2nd is worded exactly as it is. Not as anyone thinks it should. The argument has turned into the founding fathers sanctioning the violent overthrow of the new government they created and now, "indisputable" evidence of that.

Excuse me while I beg to differ.

Nearly all those court rulings have one thing in common. Many base their reasoning on a misapplication of Miller's instruction on 2nd Amendment interpretation, (Miller's, "With obvious purpose . . ." directive). The misapplication of that directive is where the collective rights theorists go off the rails. Those two sentences are often paraphrased in court opinions extinguishing rights and anti-gun treatises / commentary; the word "right" is used metonymically for "declaration and guarantee." The good thing is that this foundation of collective right opinion will be dispatched so easily upon SCOTUS review.



The new government they just created was indisputably "the government established by the Constitution." The founders were not so ignorant of human nature as to think that it would forever remain grounded in the principles they endorsed and built the Constitution upon. Can you not imagine a thousand scenarios where the government would cease being responsive to the separation of powers or ballot box and become something other than, "the government established by the Constitution?" You really want to surrender the absolute monopoly of force to Bush & Gonzalez?

Sure - they have one thing in common: they show how absurd all this "indisputable" language is.

It is very, very highly disputed from highly successful anonymous internet posters like me to Supreme Court justices that are far smarter in the law than you or I. I'm not saying anybody is right or anybody is wrong. I have only my opinion. But the wording is what it is - not what it should be. It is the exact wording that needs to be debated - not what you think it should say.

Darth Cheney could take lessons here on how to cherry pick information. It took the federalists and anti-federalists coming to an agreement to get the bill of rights ratified. Both points of view need to be used to back points up - just not the federalists as is usually done (e.g. "...no man shall be disbarred...yadda yadda yadda.."). The second was a result of compromise. One wanted no qualifiers while the others didnt want what John Adams called "mob rule".

Protecting your right to overthrow the government is clearly mob rule. There is no standard for "tyrannical" as there is no standard for the NRA's version of an unorganized militia. Without those, whoever has the most guns wins. That flies in the face of the founding father's negotiations that were required to get the bill of rights ratified by all.

But that debate should be focused on the intent of the founders first and legal determinations / precedent second. Some on the pro-gun side have issues with the Miller decision; I for one can live with it if it were ever applied without massaging and spinning. Beginning with Cases v. US the Federal Circuit's dance avoiding and misconstruing Miller has led us down this "confusing" path. There was no misunderstanding about what the 2nd protected in the Reconstruction period; the debates in Congress of the various Civil Rights Acts and the 14th Amendment show what the consensus was. Forcing the rebel states to re-write their state constitutions (RKBA provisions in particular) to align with the federal document shows what the consensus was on the meaning of the 2nd. The present whirlwind of controversy over the 2nd Amendment only began in 1943.


What Anti-Federalist took an anti-individual right position? Is it your argument that a conflict like today's existed as to the application of the right to arms? I thought the disagreements were centered on how best to secure the people's rights not what their substantive description / scope was.


There is no actionable "right" to overthrow the government because as long as it remains legitimate it enjoys the protections of the Constitution. The right resides in the prerogative of the people to alter or abolish their government when it no longer acts in a legitimate fashion. I envision that determination will take time and much deliberation not unlike the endeavors of the Colonial leaders in the period of injury and usurpation before the Declaration of Independence was signed.


Oh there's a standard, unfortunately, today most citizens have no clue. The citizens of today have no comprehension of or affinity for those principles once deemed "self-evident truths." They wouldn't know illegitimate governmental action if it came up behind them and bit them on the rump. So yes, today most people do not blink at actions the founders listed then as, "having in direct object the establishment of an absolute Tyranny over these States." Pre-empt Survivor though and there will be rioting in the streets.


Sure there is, the militia of the US is defined as every person capable of bearing arms and acting in concert. Has been since before the Constitution was ratified. . .

And when you can point to where anyone here claimed that there is a legal right to commit acts of rebellion, then your point might be relevant.


Depends on what the objective is. If the objective is total destruction of one side or the other, I suppose the Zambians would have the advantage. If it was simply one side trying to dominate the other, then the deer hunters fighting for their freedom would have a better than even chance. If it was purely a question of superiority of weaponry, then we'd have had Iraq firmly under control for years now.

I think that the three questions can be best explained by a short paragraph I had written about the Second Amendment in the past, although is addresses more the word "militia" than the words "the people":

"By modern interpretation, the term “militia” refers to the armed citizenry at large. They have the Constitutionally protected right to keep and bear arms and the “right of the people” (to do so) is protected not only by the necessary need to secure a free state, but to protect their own individual liberty and security within the free state. There is an established difference between state security providers, such as the National Guard, and a person’s right to bear arms to protect their own wellbeing within a stable free state against undesired harm and for the safe and legal use of such arms for recreational purposes. Hence, the right of the people to protect their own personal liberties and wellbeing is, in a sense, like the establishment of their own private militia that is “well regulated” by the individual bearer of such arms that they possess for their own protection and security. The Second Amendment is just as strong today as it ever was when our Founding Fathers drafted it. Americans who bear arms are still today what they were in the Revolutionary War time: defenders of freedom, liberty, security, and personal protection."

Your argument is what most people's argument is - this is what you wish it said.

But it doesn't. It specfically states a well-regulated militia. They didn't say "the people of the states", "in order to protect ourselves", or any other such thing.

The militia at the time of the writing were able-bodied white males between the ages of 17 and 45. They were required to muster regularly, be armed accordingly, and had a chain of command.

Your interpretation leaves all that out. As I stated before, if you could be drafted to defend our country and were required to bring your own guns, your argument would be stronger. But you are not allowed to arm yourself if called into service. For your point to have merit, not allowing our armed forces to bring their own firearms would have to be unconstitutional. You can't have one without the other.

The armed forces you would be drafted into are not the militia. There was a clear sense of distinction between the two in American politics at the time. And even if they somehow were equated, this has only to do with the first clause. And as I stated before, the first clause is just an explanatory clause anyway. It imposes no conditions whatsoever on the operation of the Amendment.

No indeed, they had in mind a popular militia that would be mobilized when needed. This does indeed exist today, in Switzerland and to some extent in Israel. That it does not exist here is not an argument that the founders must have meant something else; it is only an argument that the subject of this amendment, and thus the amendment itself, is an anachronism.



However much they may be mentioned, there are no rights granted by the bill of rights; there are only enjoinments against certain types of action of the federal government. But I think it is a misuse of words to say that assembly is not a collective right. If assembly is seen as a "individual" right, then "defense" must be also; yet each certainly implies conjoint, collaborative action. Further than that, it says "well-regulated militia," which is as collective as it is possible to be, so what difference does it make if the other "rights" supposedly granted by the Bill of Rights are not collective?



It's ludicrous but that's not the logic. There is no claim that the 2nd Amendment restricts gun ownership only to militias, or indeed that it restricts it at all. There is only the claim that it does not restrict federal, state or local regulation of, indeed prohibition of, firearms. If there existed a militia that required keeping arms at home, like they have in Switzerland, then the 2nd Amendment would have some practical force. Since there isn't, it doesn't.




On the contrary as I would argue, the second clause depends on the first, and the first tells the purpose of the second. It is for the sake of having a well-regulated militia that certain actions of government shall not be taken. Government restriction that would impede the keeping and bearing of arms are enjoined against only insfar as it would impede the arming of the militia.



Why? I can assure you that in Switzerland some members of the army, which is essentially a militia in the very sense of the word understood by the founders, do indeed keep rocket lauchers, and keep even weapons considerably more destructive. If the United States also relied on such a militia, it would entirely necessary for its citizens to keep similar weapons. It is precisely here that it makes sense to say that the founders could not have been expected to foresee advances in technology. The right of keeping arms, for the facilitiation of a militia, is in no way contingent on the destructiveness or degree of modernity of these arms; only on their utility to a well-regulated militia.



Indeed. So that if the 2nd Amendment permits people to hold muskets, it must also permit them to hold automatic rifles, machine guns, and rocket launchers. The question is only whether this right of arms-keeping is absolute or conditional on its necessity to the maintenance of a well-regulated militia. If it not thus conditional, then it absolute; for no other conditions are mentioned in the text.

Really, this demonstrates the debility of your reasoning. You might wish to have a 2nd Amendment that restricted the right of weapons ownership to certain classes of weapon not destructive on a military scale, but that is not what you have. You have a 2nd Amendment that says that the popular ownership of arms necessary to the militia shall not be restricted. That is an explicit statement of military intent. Since their is no militia, these words are vacant of practical force. But if there were such a militia, there is no class of arms useful to such a militia that would be restricted by it -- including helicopter gunships (some of which indeed are kept in barns in Switzerland).

The 2nd Amendment most particularly does not say, "The hunting of game, participation in sporting firearms competitions, and the private admiration of gunmaking craftsmanship being necessary to the happyness of a free people, etc. etc.." There is therefore scant basis indeed for saying that there is some not-very-destructive "civilian" class of weapons whose ownership the Amendment sections off and protects, while failing to protect that of others.

Justice Story



Substantial state interest can limit a right granted in the constitution. You are not free from state action if you yell fire in a theatre or publish kiddie porn, despite 1st amendment protections of free speech. The USSC has determined that the need for diversity can overcome the equal rights clause of the 14th amendment. Certainly the individual can be granted the right to bear certain arms and excluded from others under our constitution.

The Second Amendment provision for the right of the people to keep and bear arms is granted in the context of the maintenance of a “well regulated Militia.” See United States v. Miller, 307 U.S. 174 (1939). There is nothing in the Second Amendment that would bar regulation of the possession, transportation and sale of firearms. The gun lobby has attempted to read into the Second Amendment provision that is not there. In this they do as much violence to the Constitution as those who would deny the people its protections.

While it imposes no condition on operation, its continued existence as worded is called into question by the fact that a "well-regulated Militia" no longer requires the protection of the right to keep and bear arms.

If the National Guard is the "well-regulated Militia", citizens do not need to supply their own arms to be a part of it; they don't need to keep their own arms to be a part of it; they don't need to bear their own arms in order to be a part of it.

Unfortuntely, the Miller ruling doesn't hold much credibility with most pro-individual right advocates because they simply state that ruling was wrong. And Chief Justice Warren Burger was wrong. And Judge Robert Bork is wrong. And almost every court since the Miller decision that used that ruling as precedent was wrong.

They will state how all these legal scholars are/were wrong and what they think the 2nd second means that makes it wrong. But there is no easy way of tying Joe Bob sitting on his front porch with a shotgun sucking down a 6 pack of PBR to "a well regulated militia". So, the term "militia" is simply redefined to get the answer they need.

But don't use the Miller case....it won't help you.

There needn't be anything in the Second Amendment barring Federal regulation of possession, transportation and sale of firearms. The Second Amendment and the Tenth Amendment are tied together in this respect. The Second Amendment essentially says, "because an armed militia is necessary in a free state, people have the right to keep and bear arms." Whether or not we believe that a militia is necessary today and no matter what our disagreements regarding the definition of a militia is is irrelevant. Nowhere in the Constitution is the Federal Government given power to regulate the possession of firearms, only the transportation [via the Interstate Commerce Clause] and sale [same thing]. That's where the Tenth Amendment comes into play. Powers not delegate to the Feds are reserved for the States and the people therein. Therefore, gun regulation is not a Federal issue beyond its relation to interstate commerce.
"A free society needs to be armed, therefore people have the right to keep and bear arms."
Citizens of the United States.
Keeping would imply having them on your property, bear would mean to physically posess them elsewhere.

CP

Many, including legal scholars, have misconstrued the meaning of the Second Amendment. The Miller case, which is the controlling precedent, holds that the Second Amendment provision for the right of the people to keep and bear arms is granted in the context of the maintenance of a "well regulated Militia." "The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." (Emphasis Added) United States v. Miller, 307 U.S. 174 (1939). Prior to Miller, judicial interpretations held that the Second Amendment was a limitation on the power of Congress over states’ (not individual) rights. See United States v. Cruikshank, 92 U.S. 542, 553 (1875). However, the Miller decision opens the door to federal regulation of firearms as well, holding that objections that federal laws (e.g. National Fire Arms Act and the Harrison Narcotic Act) "usurps police power reserved to the States is plainly untenable." Id., p. 174. The original intent of the framers of the Constitution in the Second Amendment was to guarantee the right to the states for purpose of the maintenance of state militias. It was not a grant to individuals. If the Second Amendment was ever a limitation, it was on the intrusion of the federal government on states’ rights at a time when there was no standing army or organized reserve, and had nothing to do with the private ownership and use of guns, the regulation of which, as made clear by the Supreme Court’s decision in Miller, under both state and federal law is unhampered by the provisions of the Second Amendment.

The recent decision of the D.C. Court of Appeals holding that the Second Amendment grants an individual right echos the dicta in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001); however it is contrary to the case law, including the decisions of the Supreme Court, and, consequently, of rather questionable legal authority. The Supreme Court has never ruled that the Second Amendment protects an individual right; and as the final arbiter in the interpretation of the Constitution, its decisions are binding as law until overturned by the court or by constitutional amendment. In this, it is ironic that, among the constitutional scholars, the advocates of individual rights are liberals like Lawrence Tribe (whose treatise on constitutional law was cited by the majority opinion of the D.C. Court of Appeals), rather than those conservative diviners of original intent like Robert Bork. See Shelly Parker, et al., v. District of Columbia, etc., et al., D.C. Court of Appeals No. 04-7041, Opinion at pp. 17, 18, n. 7 (March 9, 2007). Given the current makeup of the Supreme Court, unless Justice Alito (a man who never saw a law that favored the state police power over individual rights that he didn’t like) turns out to be a closet liberal, betting odds are against overturning Miller.

But the Amendment does not use languange that would support an interpretation that meant the 2nd Amendment was only meant to prevent federal interference with State's rights.

In actionable part, it simply says that the right of the People to keep and bear arms shall not be infringed - this clearly reads like protection of an individual right. The 14th Amendment applies this Amendment to the States, meaning that the States can no longer infringe upon this individual right.

Actually, there is. When Joe Bub has owned a gun all his life and knows how to use it, he makes for a much better candidate for a militiaman than someone who wouldn't even know how to hold the thing, should his state require his services. And of course, as you've needed to have explained to you over and over again on this thread, the "well regulated militia" thing has nothing to do with the operation of the law anyway, because it imposes no conditions. Feel free to keep ignoring that point, hoping that no one will notice that big hole that's been shot through your argument.



Even if that were true, any federal gun control law would have interfered with the ability of states to maintain the best militias they can raise. It makes no difference at all whether or not the states have moved to avail themselves of that option. The law is the law, until it's repealed. (now I know there are some on this thread who continue to insist on making this a discussion on whether or not it should be repealed or altered, but they've lost sight of the topic's questions)


Given Alito's circuit court opinion in Rybar, I'd say those odds are a bit higher than you may think.

I can't ignore a point that I can't comprehend. What does the operation of the law have to do with the second? I have no idea what the heck you are talking about.

If you are talking about the second not imposing any conditions, the militia is clearly a condition. The definition of militia is clearly in question.

If the constitution has a condition based on the existence of militia, why does the constitution not define what a militia is? It defines the Congress, the President, the officers of the President, the Supreme Court, the lesser courts, state governments, and state electors... why no mention of militia, if militia are important to the law?

Utterly and completely incorrect. Miller says nothing of the sort; what you are arguing IS the MISCONSTRUCTION!

First, the right to arms is not granted, bestowed, created or established by the 2nd Amendment. Second, the Court does not instruct the application of the "context of the maintenance of a "well regulated Militia" test to the right to arms . . . You quote the decision directly:

The "declaration and guarantee of the Second Amendment" is not a synonym for the "right to arms" in the eyes of SCOTUS. SCOTUS has stated that the right exists without any dependence on the Constitution. Since the words chosen to secure the right do not create or establish the right, the words can not be read to outwardly restrict the right.

Again, you are jumping on the oft repeated Circuit Courts' misconstruction of Miller taking the Court's simple explanation of the collective object of the amendment (as explained in Aymette) and applying it to the individual means to achieve it, the pre-existing right to arms which is only recognized and secured by the amendment.

From Webster's 1828 Dictionary:

OB'JECT, n. 2. That to which the mind is directed for accomplishment or attainment; end; ultimate purpose.

MEAN, n 3. Instrument; that which is used to effect an object; the medium through which something is done. In this sense, means, in the plural, is generally used, and often with a definitive and verb in the singular.

SECU'RED, pp. Effectually guarded or protected; made certain; put beyond hazard; effectually confined; made fast.

Quoting Aymette v. State of Tennessee, 2 Humph., Tenn., 154 (at page 158, as cited closing Miller's famous "In the absence of evidence paragraph").

"The object, then, for which the right of keeping, and bearing arms is secured is the 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. The words "bear arms," too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of 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."

Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

From this language, it is easy to see why the Miller Court cited Aymette on the question of how a sawed-off shotgun should be treated. The Court ruled against Miller for just one reason, because no evidence was presented that demonstrated the weapon, as constructed, was, (quoting Miller) "any part of the ordinary military equipment or that its use could contribute to the common defense." Had the court heard that evidence it stands to reason that the weapon would be protected under the 2nd and immune from NFA-'34 federal action and control.

It is also important to note that the above quote from Aymette absolutely and undoubtedly endorses an individual right, rather than a state power. It recognizes two separate entities. The "object" of the provision and the means (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) to achieve it.

"[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 state provision and the federal 2nd Amendment, can not exist without the means to achieve it.

Look, the lower federal courts have misread, misrepresented and misused Miller to create a complicated collective right interpretation from a simple collective object explanation and you have swallowed it hook, line and sinker . . .

It is this perverted interpretation that has created a trunkless tree of precedent in the lower federal courts. On this tree, limbs grow in midair and not a bit of it is attached to the trunk of the Constitution or the roots of the founding principles.

OK, now I need a question answered by the anti-gun rights people here . . .

After reading the Aymette quote above isn't the interpretation argued by ya'll exactly the thing the citizens are armed to resist?

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

Wouldn't your forced disarmament agenda be EXACTLY the type of encroachment by "those in authority" the people are supposed to guard against?

Mike Raffone



I agree that the right to keep and bear arms is not granted, bestowed or created... it may be established by the 2nd Amendment. To establish something in the law is to institute it. To recognize it and set it down in the law as being protected.

But the important thing is that the right is not created or granted by the 2nd Amendment. The same goes for all of our rights. They are pre-existing. The constitution only recognizes rights as being secured.



If you apply object and means to the 2nd Amendment and these are important, then... despite what Blackstone says, the first clause is relevant.

The object would be the maintenance of a "well-regulated Militia" and the means would be the protection of the right to keep and bear arms.



I believe it would, at this point, be impossible to disarm the citizens of this country. I also believe that, to some extent, the people's right to keep and bear arms should be protected for the reasons you state, but the 2nd Amendment, as written, does not protect the right to that end.

"If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment... This has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud', on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
- Warren Burger, former U.S. Supreme Court Chief Justice, Parade Magazine (Jan. 14, 1990)
. . .

You mistake the ruling in Miller. As stated in United States v. Hale: 'Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well regulated militia," the Second Amendment does not guarantee the right to possess the weapon. Miller, 307 U.S. at 178, 59 S.Ct. at 818.' United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).

The subject of gun control, as with marriage and reproductive rights, is best left to the states, and not the federal government. If what we want is less regulation, then the last thing we want to do is make a federal case out of it; as experience has shown that Congress is obsessed with regulating everything. Here, the gun lobby (and the NRA) have misrepresented us; for in attempting to make gun ownership an “individual” right under the Second Amendment, they have made all gun owners less secure in their rights. The way to go is not the Second Amendment - the Supreme Court has already closed that door; and, despite the recent ruling of the D.C. Court of Appeals, is not likely to reopen it. The way to go is as individual rights retained by the people under the Ninth Amendment, and powers reserved to the several states or the people under the Tenth Amendment. It is time that gun owners stop beating their heads against the wall and start using their brains.

No, it's an explanation. It's a statement of why the law exists. "A well regulated militia being necessary to the security of a free state" does not mean, "As long as a well regulated militia is necessary to the security of a free state". It means, "Because a well regulated militia is necessary to the security of a free state". A reason is not a condition.