Those amendments did NOT grant rights. They removed the wrongly instituted government restrictions that prevented those people from exercising their unalienable rights.

The government cannot grant rights, they can ONLY take them away like they did during slavery or when women were prevented from voting and doing other things.

Again, this is a key principle of our government. Belief that our state "grants rights" is dangerous and it is incorrect.

Go back and read the declaration of independence, the constitution, and the federalist papers. The founders of this country made these principles clear.

The 2nd amendment unmistakably (well, some people mistake it anyway, it takes all kinds to make this world :) protects an individual right to own and carry weapons. In other words, it protects your and my right to own a gun, regardless of any association with any organized military service or group.

In modern language, the 2nd amendment says:

"Since an armed and capable populace is necessary for security and freedom, the right of ordinary citizens to own and carry guns and other such weapons cannot be taken away or restricted."

It leaves open some interesting areas, of course, such as the scope of weapons to be owned and carried; and the legal status of the citizens carrying them.

Obviously the Framers intended people to be able to carry personal weapons such as muskets, handguns, knives, swords, spears etc. But did they intend for people to be able to own the biggest, most destructive weapons in existence at that time? Maybe giant siege cannons, or gunpowder bombs that could blow up a large building full up people? The Framers also knew that science was always advancing, and that it was likely that even more destructive weapons would someday come into existence. Yet they offered no limits on what weapons citizens could own, in the 2nd amendment, but merely put a blanket ban on ANY prohibition.

Did the Framers intend for some guy who just murdered his entire family, to be allowed to carry weapons the next day? Probably not. Yet the 2nd makes no exception for past or present criminals. Other parts of the Constitution say, "except as provided by law", but not the 2nd amendment. Why not, do you suppose?

Notice, too, that the first phrase imposes no condition or limitation on the main body of the amendment. If somebody proved conclusively that an armed and capable populace was NOT necessary for security and freedom, and everyone in the world agreed he had proved it 100%, that would make no difference. The 2nd would still prohibit any ban or restriction on citizens carrying weapons. The first phrase in the amendment, is merely an explanation of why the ban is there, not a necessary qualification.

What about AmendmentXIX where women recieve the right to vote? Is that not giving them the right to vote? I want to see what right that one takes away.

Women, as citizens of the United States had an unalienable right to vote, speak freely, own weapons, etc., etc., etc.. Up to XIX, the government had DENIED those rights.

The government can only take away our rights. They cannot grant them.

I say again. Please refer to the declaration of independence and the federalist papers. These concepts are spelled out pretty clearly.

If they stopped forbidding women to vote etc. then were they not giving them the right by not keeping it? Either way you look at it they give rights to people. I am good friends with an economics/ U.S. government teacher that has always said that the government gives what it keeps which hasn't made sense until recently. I realize she was talking about rights. They keep peoples rights and when they finally get it through their skulls that they were wrong they give them back. In this case they kept womens rights until they figured out they were wrong, then they gave them back.

The amendment recognizes a woman's right to vote. Perhaps this is what lordhelmet is trying to state. The Constitution does not grant rights -- and if our rights were restricted to just what was "granted" in the Constitution, boy would we be in trouble. The Constitution recognizes rights and lays groundwork for how those rights are protected by the Government. The Amendments usually arise out of a restriction by the Government that needed to be lifted and a right officially recognized (the prohibition amendment -- later repealed -- and the proposed marriage amendment excepted.)

As for the 2nd Amendment, either we stick to it as the Framer's intended or we fix it. Right now, it isn't being used as the Framer's intended. Pre64M70 is right... the National Guard is not the militia referred to in the 2nd Amendment. The framer's did not want that militia to be under control of the Federal government because the intent was to have a well regualted militia that would assist the military in time of invasion or protect the populace from the Federal government itself.

So, either we adopt this idea or we rework/repeal the 2nd Amendment (I don't advocate repealing it, mind you). It is clearly in regards to a militia that this Amendment recognizes the right to bear arms, not for just anyone to have the right to bear arms. The intent was a recognition of the right of the people to form a State's militia and for the necessary workings of that militia to be respected by the Government. In absence of a militia, the right is not recognized.

Thanks for clarifying what I was saying. You put it in a much better way and I appreciate it. I also agree with the pre 1964 Winchester Model 70 poster with respect to the 2nd amendment. The courts have subverted the intent of that amendment to the point that it doesn't mean much anymore. In my view, the current court should step in and rectify that situation.

All of this would be an interesting discussion if someone could tell me what "well regulated militia" means in the preamble of the second amendment.

Accoriding to the constitution, the militia consists of able bodied males between the ages of 18 and 45. Which means, I can't own gun. My wife never could.

So, to resolve this conflict, we revert to some "unorganized" militia that somehow, is still well regulated. Somehow, Billy Bob Smith sitting in his trailer park with a 6 pack of PBR and a shotgun is "well regulated".

We use the Federalists to butress an argument while ignoring the anti-federalists in their entirety. The federalists thought that every indvidual should be armed, but John Adams, an anti-federalist claimed that would be "mob rule" and was against it. To resolve this conflict, the second was changed to "to ensure a well regulated militia.." to make both sides happy and get the entire package ratified.

Every Supreme court case has ruled with my view starting with US v Miller. And these courts, both democrat and republican through the years, have upheld the collective right. One federal judge went renegade and ruled the inidividual right, but the Supremes punted that case because there was nothing to rule on. They've already made that ruling. The Emerson case is not a precedent and every case (at least two of them) since then have ruled with US v Miller - the collective right.

It's clearly a collective right because the original amendment was based on the 1688 Briitish Bill of Rights which required all able bodied PROTESTANT malese between the ages of 18 and 45 to serve in the militia.

The framers did not provide us a mechanism to violently overthrow our goverment. That's what they made ballot boxes for.

Pre64M70 discusses the meaning of the phrase in his post.

I agree with his definition. In order for this to happen, the militia needed to be armed and ready to respond at a moment's notice. The military barrack together, so their weapons are located in a close proximity to them to give them ready access. The milita also needed to have arms at the ready, so they needed to keep them in their homes. They also had to be allowed to bear them in order to do their job. The aim of the 2nd Amendment is to prevent the Government from effectively shutting down a militia by banning the keeping and bearing of arms for use in a militia by private citizens. In essence, this Amendment recognizes the right of citizens to have a militia separate from the Federal government and keeps the government from banning or taking away the militia's weapons.


I'm so glad that they took your immense wisdom into consideration.


No, they provided us with a mechanism to protect ourselves from a tyrannous government.

I did, three hours before you posted your question. It's often useful to read what others have written here - you will often find your questions already answered.

I also pointed out that the part mentioning the Militia, merely explains why the ban on gun-restrictions is being imposed. It does not qualify WHETHER the ban is imposed, or on whom. The ban is unconditional - NO ONE's right to own and carry a gun, can be taken away or restricted.

That is not at all what it states. It very clearly ties a right to gun ownership and the bearing of arms to a role in the Militia. The militia was seen as a necessity in order to maintain a free society -- freedom from a possibly tyrannical US government included. The intent of this Militia was to aid a standing army in the event of invasion or to protect citizens from the standing army if the government were to become tyrannical. Because all people were required to participate in the militia, all people were considered the militia. This is no longer the case. Either we bring back this type of militia or we rework the 2nd Amendment. We can't have it both ways.

Please provide evidence that this is no longer the case. Please provide evidence as to what definitive moment has transpired which makes the 2nd amendment inconsequential today. "Bring back" what type of militia, which is (as defined by you) obsolete, exactly?

I am at a loss to divine how you can interpret the 2nd's words this way. It in no way conditions the right to own guns, to the role of a militia.

Come on, this is simple English 101. My interpretation of "A well regulated militia being necessary to the security of a free state," to "Since an armed and capable populace is necessary..." was correct.

Suppose the 2nd had said instead, "The moon being made of green cheese, the right of the people to keep and bear arms shall not be infringed." And suppose that 200 years later, astronauts finally reached the moon and proved once and for all that it was NOT made of green cheese. Would this mean it was now OK to infringe on the right?

Certainly not. Many scholars of English, especially the flavor of English used in Colonial times, have examined this statement time and again. Even the ones who opposed gun ownership, have agreed that the first phrase in no way conditions the main statement. I can give you references if you like, though I apologize for not having them ready to hand.

------------------
ON EDIT: Here is a reference to one such study of the language of the 2nd Amendment. It's kind of long, so I've only provided the link.Click on http://www.2asisters.net/la/second%20amendment%20frame.htm
------------------

The 2nd amendment is a flat ban on any restrictions against ordinary citizens owning and carrying weapons, including guns. Its first phrase merely explains why. Even if that explanation were to later become inapplicable (which, by the way, it has not), the amendment's meaning and impact would not change.

But it remains that all citizens are potential members of a militia if it should be necessary. Though, officially, only able-bodied males over seventeen and women in a formal militia are considered members, it may come to be necessary for younger males or other women to fight in case of emergency. This nation could be invaded or assaulted from within, and though the soldiers would be the primary line of defense, soldiers are neither perfect nor omnipresent, nor can they immediately come to remote areas. Or, if an area falls into bedlam, as is not unheard of, a militia may be necessary in addition to police to restore order. Even a small group protecting itself from assailants could be considered a kind of militia.

This one:


The Militia Act of 1792

There is no longer a requirement to join a militia. It is voluntary to join the National Guard, and the weapons are supplied for you.

Little-Acorn,


How? That is even different from the "modern language" interpretation of the English usage expert you refer to in your link:


This ties the right to bear arms to a role in the militia. Effectively, this means because the nature of a militia requires an individual to supply his own weapons, and a militia is necessary to the security of a free state, the government can't abridge the right of a citizen (who is required by law to join the militia) to keep and bear arms. The intent is clear and is quite eloquently expressed by your English usage expert:



If there is no militia that operates in the fashion described in the Militia Act of 1792 (meaning that you have to supply your own weapons), why do we need to preserve the right inviolate?

Bay State Rebel,



The militia was very clearly defined by the Militia Act of 1792 so, it seems to me that this is what the framer's meant by "militia." It certainly did not mean just any ole mob. In fact, today the National Guard is officially considered the militia.

I'll give you the "taken away" part, but where are you reading "restricted". The second amendment mentions nothing about the types of guns you are allowed to own. There is no clause in there permitting you to own automatic or military weapons, it simply doesn't mention that part.


Yep, nothing in there about restricting certain classes of weapons.

Therefore, it falls to Congress to make laws concerning what classes of firearms are permissible to own. As long as they don't ban the right to own firearms or make it so restrictive that no one can own one then they are well within the constitutional parameters. In other words gun control is constitutional and in my opinion highly desirable.

That's an interesting question, which falls outside the scope of the debate question of this thread (Is the 2nd worded to protect an individual right?).

Aside from what our current 2nd amendment says, SHOULD ordinary citizens in this country, in this day and age, have the right to own and carry guns? Anyone want to start a new thread to discuss that one?

Back to the subject:

The current 2nd amendment clearly states that ordinary citizens have the right to own and carry guns, and that that right cannot be restricted or taken away. The day is young, but so far no one has offered an unrefuted argument to the contrary.

Again I'll state that it says nothing about restricting it. It merely says it cannot be taken away. Therefore the federal government has the power to tell you that you may not own automatic weapons and things like RPGs. But as long as they allow certain classes of weapons to be purchased they remain within the bounds of the constitution.

(patiently) That's what "infringed" means: to restrict, to encroach upon, to interfere with. English 101 again.



Correct, it does not... because the 2nd amendment doesn't "permit" ANYTHING. It BANS government from restricting your right to own and carry weapons (as several people in this thread have already pointed out). And since it "mentions nothing about the types of guns", the ban is comprehensive. It bans government restrictions on ALL types. Whether that's a good idea, is yet another subject outside the current thread. But the fact remains that that's what the 2nd says.



Read the amendment again. It says, "the right... shall not be infringed." That's the Framers telling Congress to keep its hands OFF people's right to own guns. Don't take it away, don't restrict it, don't change it, don't annoy it, don't even breathe hard on it.

The Framers couldn't have made it any clearer than that. Nor can I.

Nice selective quote job there. The whole thing says:


So by not allowing you to own an RPG and run rampant in the woods blowing up deer, is your right to keep or bear arms being infringed? No it isn't. The reason why is because you may still keep and bear other types of arms such as pistols, handguns, rifles, shotguns, etc.

There were all of a few types of weapons when the framers wrote this amendment, the word "infringed" does not refer to types of weapons or even things like the Brady bill. It means that you have the right to have weapons, period. I'd challenge you to find anything written from that time period suggesting that it was an absolute right extending to every conceivable type of arm available.

Do you really think that in all the years of supreme court justices sitting on the bench of all political flavors, and particularly in recent decades with all kinds of wacko gun nut groups, that something that big could be overlooked? I hope you give the supremes more credit than that.

There is a point when restricting certain classes of weapons could become so great one could make a case that it is "infringing" on your second amendment rights. If our laws stated you could only carry a swiss army knife and/or a bow and arrow you'd have a point. However, banning automatic weapons, high explosives and military grade weapons does not violate the spirit or the letter of the amendment.

Okay so under that act, every able-bodied male was required to own a gun and considered a part of the militia. Not much exclusion there. When the National Guard was founded, the Dick act of 1903 provided also for an unorganized (or reserve) militia as well. The National Defense Act of 1916 spelled it out.

I guess I need to explain something to you. The entire Constitution, including its Bill of Rights, is based on the idea that people have ALL rights of EVERY kind, with no limits except for those specifically addressed by law. Asking me to find something "permitting" me to own all arms, is not only irrelevant, it borders on incoherency. What you need to do, if you're really interested in proving your point, is to find some law that BANS or restricts the kind of arms you seem so afraid of. And since the 2nd says what it says, and is the Supreme Law of the Land, you'll also have to show why the law you find is NOT covered by its comprehensive ban on arms restrictions.

When you're able to do that, let me know. Good luck.



Perhaps I should point out that the last time the Supreme Court directly addressed a 2nd-amendment issue (US v. Miller in 1939), they ruled that private ownership of military grade weapons WAS protected by the 2nd amendment.

Look, I can see that you really need to do some homework here. And you need to separate out what you WISH the 2nd amendment said (bans on certain weapons are OK while bans on other kinds are not), from what the 2nd actually does say (bans or restrictions on weapons are not OK, period). This thread is about what the 2nd DOES say.

Why don't you try this, the next time you post: When you want to assert that it's OK to ban some kinds of weapons, make sure you point out the section in the 2nd amendment that makes that exception. I have demonstrated to you quite thoroughly, that the 2nd amendment as it's presently written, imposes a total ban on any government restriction on private ownership of weapons, and that it makes no exceptions, either for types of weapons or for military group membership. You have failed to refute any of it (simply repeating "It's not so, it's not so", isn't good enough).

Again, when you're ready to try, let me know.

To be exact, every able-bodied male was required to enlist in the militia and required to provide his own weapon. The phrasing is important because of the argument regarding the 2nd Amendment. If being part of the militia is mandatory and participation requires the furnishing of one's own weapon, the government should not be allowed to restrict an individuals ability to keep and bear a weapon. As Little-Acorn's expert points out in his examination of the amendment, the intent was not to arm every individual simply for the purpose of arming them, but to ensure that there would continue to be a well regulated militia. Being that participating in the militia no longer requires you to provide your own weapon, there is little reason to keep the 2nd Amendment as worded. The intent of the 2nd Amendment, as worded, (according to Little-Acorn's expert) is to ensure a militia, not to explicitly recognize an individual right to keep and bear arms. In fact, it was changed from wording that did explicitly recognize an individual's right to bear arms to one that was intended to ensure a well regulated militia.



No mention of a requirement to provide your own weapon in order to be a part of the Unorganized militia.

Little Acorn,



You stated that the right to keep and bear arms is not connected to the maintaining of the militia, but it is an individual right. I merely argued, using your source I might add, that the wording has a very clear intention as regards the militia. This is relevant to the topic at hand because it means that the 2nd Amendment is not worded in a way that protects an individual right in absence of the needs of a well regulated militia.

Since you seem to be accepting my source without coming up with any of your own, may I suggest that you read more than just a few lines of it? Specifically, look at the paragraphs marked "[Copperud:] (3)" and "[Copperud:] (4)". You might also look at the paragraph quoting Copperud that starts, "To the best of my knowledge...".

Or you might even read the entire thing. You'll get a good feel for what the source is saying. Come on, you can do it. Read.

Needless to say, I agree with the source I cited. Do you? Why or why not?

I suggest again that you do your homework on this before pursuing it further. Your knowledge of the subject, as well as your credibility in debate, can't help but improve.

I have to support the interpretation that the right to bear arms is unalienable. Government cannot restrict citizens rights within the bounds of the constitution. The "necessary and Proper" clause has been used to justify government actions that aren't necessarily within counsitutional bounds. Interestingly, the Anti-Federalist authors "Brutus, and "A Federal Farmer" argued against the wording there, but lost the debate. Perhaps they were right?

The 2nd Ammendment may well again be challenged in a Supreme Court very soon. Rick Stanley's case in Colorado may make it there. It will be an interesting case to follow for those interested in the plight of the 2nd Ammendment.

I will include it here, because it is completely appropriate for this topic. Here is a basic breakdown:


http://victimsoflaw.net/Stanley.htm

Currently Mr. Stanley has no less than three lawyers employed in his challenge. I'll follow this one with great interest.

That is your opinion. A person in the unorganized militia is required to provide his own weapon. The fact that membership is not compulsory does not change this, as is clearly stated in the National Defense Act with no ambiguity. Surely the purpose of the wording (unorganized militia) was to ensure the population reserved the right to maintain arms.

What is the unorganized militia? It is the armed population. The government does not provide weapons to the unorganized militia, and I don't imagine you are arguing that a militia should be unarmed.

I would like to add to Mrs. P's posting in regards to the Federal government has been and still is very interested in having an armed unorganized militia. They do provide military arms to the civilian population at nominal prices via the Department of Civilian Marksmanship program.

The DCM has provided over 5 million military rifles to the civilian population. And yes it is legal to keep and own military ordinance, including bombers, tanks, artillery, missiles, machineguns and mortars.

I know because I have legally owned a number of these pieces of equipment and have friends with all of the above.

I agree whole heartedly that military grade, automatic weapons and high explosives need to be restricted. Because they are a danger not only to the person handling them but to society it is not an infringment on the system's part. If there were no restrictions then one might be able to argue that they need a nuclear warhead to hold down the fort from terrorists. Timothy mcveigh might have been able to get much more powerful explosives. The kids at columbine could've walked around with M16s and M4s, if there weren't restrictions. But it is not restrictions we are talking about anymore. Groups of anti-war and anti-gun fanatics are running rampant attempting to remove the "unalienable RIGHT"
to own and carry a gun. Their are disadvantages to letting people have guns because people are human. They aren't perfect. When someone kills someone else with a gun it always comes back to gun control. But their are advantages as well. The little old lady that lives down the street might not get beaten or raped and robbed by some punk looking for weed cash, if she had a gun. But because someone in society said that she is too old and her hands shake too much for her to be able to adequately handle a weapon, you see her house on the news one night and watch paramedics wheel her out in a body bag. It has been stated and reapeted many times on this thread but here it is again: " The unalienable right for people to keep and bear arms." that my friends is impossible to challenge. Unalienable= you can't take it away. If the framers wanted people to be peacful and never have a weapon they would have followed Britians example, melt down every weapon in the country. Even the street cops don't carry guns. I say give'em all a gun and let'em duke it out. Eventually people will realize; you shoot someone they are gonna shoot back.




Although it is legal. I don't think we need people that have the money to be buying tanks and running through downtown launching artillery shells into the riverwalk. People, being human, are almost entirely unfit to own and operate such machinery and weapons without training and the fact that the military is letting these weapons go is just stupidity on their part becasue we all know that someone with enough money can get a tank or jet/ bomber for the mexican drug cartel if they wanted. That presents a BIG problem in my eyes. Does it not in yours?

Actually I have no problem there. Number one they are pretty hard to conceal, number two they have never been used in a crime.

In fact the only tank that I recall being used to commit a crime, belonged to the California National Guard, not a privately held one. Besides the US isn't the only one selling military equipment. Several of my friends own and operate MiGs, one even has a couple of SCUDS.

Again I point out that none have ever been used to commit any crimes. What is the problem? Attitude maybe?

Excuse me, but "my expert" said exactly the opposite. He pointed out, in paragraphs I singled out in a subsequent post, that the purpose of the 2nd amendment was to ensure that ordinary citizens had the full right to own guns and other weapons. And he explicitly stressed that that right existed independently of the need to maintain a militia or other military group. He said that maintenance of a militia was one of the beneficial results of private ownership, not a necessary requirement.

I apologize if I did not make this clear in my earlier posts.

Not attitude so much as worry. I am worried that although they have yet to be used for a crime, there is a possibility that weapons of that magnitude can fall into the wrong hands and there could be a very big problem. The problem on the border with the drug cartel could escalate drastically if one of their agents got the money to the right people and got a MiG or tank to assist with trafficing and border confrontations. The fact is although we posess the right to own arms there need to be restriction on military weapons as well as explosives. The military has the most powerful weapons on the planet and if those get into the wrong hands everyone will regret it.

Ummm, not necessarily.



The unorganized militia is every able bodied male between 18 and 45 who is not a member of the National Guard or the Naval Militia. This is why it is a requirement for all males at the age of 18 to register for selective service. Do you begin to see? The unorganized militia is all males who may be called upon to serve -- i.e. the draft. The unorganized militia was a way to ensure that the government could still call upon all able bodied males to fight if they needed them while still maintaining a standing army and a National Guard that was made up of volunteers. And it is not a requirement for all able bodied males to provide their own weapon.

loreng59
The CMP (which was, formerly, the DCM) does not sell anything other than military surplus rifles (and not automatic rifles, I might add). And it was in no way established to arm people for the purpose of maintaining an armed populace. It was established to provide training for people who might wish, in future, to participate or be called up for service in the military. The focus now is on youth development, one could assume for the same purpose -- future participation in the military.



Little-Acorn,
I see your point now, thank you. And, unfortunately, I have to agree. You are right. I guess the next question (for another thread maybe) is whether or not the 2nd Amendment is necessary in its current wording-- being that the reasons stated in the Amendment for invoking the right and making it inviolable no longer exist.

Unfortunately, we run up against a hard truth here. The world simply isn't a safe place. Never has been, never will be. And all the legislation in the world will never change that fact.

It is possible to reduce certain kinds of danger through legislation. But the legislation itslef can introduce new dangers, inadvertently or otherwise. Once you grant to government the authority to decide which kinds of weapons we can and can't own, you create the possiblity that they might some day ban all of them. I suggest that this possibility is much more likely, and much more dangerous overall, than the possiblity that someone might get a MiG or a tank and start shooting people with it. (BTW, I know people who own both. No shooting yet, although they certainly could if they wanted).

In other words, the dangers inherent in a government that has the power to decide what weapons its citizens can have, are far greater than the danger of an isolated kook even with a large weapon of the type available today. I submit that the Framers knew this very well, even as they knew that someday much more powerful weapons would become available. I suggest that this was their exact reason for banning restrictions on private ownership of ANY weapon.

It was not that they thought bad guys with powerful weapons weren't dangerous. It was that they thought government with the power to restrict private weapons, was even more dangerous. And so they wrote the 2nd amendment as a complete ban on government restrictions of ANY weapons... because the power to ban some weapons, could become the power to ban all weapons. There was no other way to avoid this far greater danger, than to flatly prohibit ALL such government restrictions.

When you give government a certain power, you owe it to your society to check carefully that you are not creating a greater danger than you are curing.

If I can buy these weapons - what is there to assume that people in other country can't? I am very sure that the drug cartels have better access and far more money than I, and yet to date it has not occurred.

So the issue is what limits are constitutional, to date I have not seen a single constitutional reference to limits.

The weapons are here, they have not been used, again I ask, what is the problem?

I should probably first state that I support the individual right to bear arms. On the other hand, I do not believe that it is a right guaranteed by the Second Amendment.


Suppose the Second Amendment had said this instead: "The moon being made of green cheese, the right of the people to fly to moon and mine cheese shall not be infringed." And suppose that 200 years later, astronauts finally reached the moon and proved once and for all that it was not made of green cheese. Would this mean it was now okay to infringe on the right? Would it, indeed, mean that the right was now meaningless and the entire Amendment should be struck from the Bill?

Certainly. The one question which no advocate of the individual right to bear arms - flavorful English scholar or not - has ever been able to answer is this: If that first phrase in no way conditions the "main" statement, what the hell is it doing there? No other amendment in the entire Bill of Rights has such a qualifying phrase. Not one. If the militia clause is a total irrelevancy, why did its authors not simply write the Second Amendment as "The right to keep and bear Arms shall not be infringed" - the way every other right was written? Why did they feel it was essential to mention a well-regulated militia at all?

Anyone?

Personally, I feel the Second Amendment should be rewritten to make the individual right to bear arms clear once and for all (or to specify in what way it can be regulated). As it stands, it is clearly open to debate - and, based on existing legislation, the Congressional interpretation is obviously that that right can be "infringed".

Me! Me! I can answer this for you Wertz.

It's called common sense.

Not only did the Constitution limit the federal government's power to restrict our possession of firearms, it also restricted the government from declaring that militias are not permissible.

It surely isn't news to you, but the Constitution was written shortly after a war in which the citizens of the American colonies took up their arms and defended their rights against what they viewed as a tyrannical government.

The Constitution is specifically written to allow the citizens of those same colonies to again rise up and attempt to overthrow their government, that being the federal government of the United States, in the event that the government was again viewed as a tyrannical government.

It's as simple as that.

Mike

The first post from an archived prior 2nd Amendment debate entitled:
"2nd Amendment to the Constitution, What does it mean?"



The nominative absolute construction was common in the late 1700's. It provided a way to construe two, often opposing, meanings within a short number of words.
Try the following:

Or:

The nominative absolute glues these separate and opposing statements into one.

It seems to start to make sense when you start to break it down into it's grammatical components.

By the way, "to keep and bear" has a particular meaning in terms of the late 1700's. One can't "bear" a cannon of the period. It is a crew operated weapon. Neither can one "keep" a frigate, armed to the teeth, without the existence of a crew.
I think that the same applies to the weapons that the 2nd intends for us to "keep and bear!"

It was included because the framer's believed that a well-regulated militia was an appropriate check against possible government tyranny. These militia were required to arm themselves and equally to that of a standing army. As Little-Acorn's scholar points out, the modern language equivalent of "A well-regulated militia, being necessary to the security of a free State" is "Because/Since a well-regulated militia is necessary to the security of a free State." Because infringing upon the right to keep and bear arms would adversely effect the militia and a well-regulated militia is necessary, if the government were able to infringe upon the right to bear arms, it would be able to, effectively, shut down the militia. This is why the militia is mentioned specifically. The framer's saw not only the right to keep and bear arms as important, but also the need for a militia that hold its own against a standing army. The right to keep and bear arms is assumed and is invoked as inviolate because of the necessity of the militia. The wording does, however, not make the first part of the sentence conditional, it merely points out a reason why it shouldn't be infringed.

The wording is much akin to stating, "Since eating broccoli is good for your health, the right to eat vegetables shall not be infringed." It essentially does two things, it highlights the importance of broccoli and states that no one should be able to restrict the types of vegetables you can eat.

Unfortunately, we don't see the militia as important anymore. The first part of the sentence has very little meaning to us now. The only militia left that isn't under government control and doesn't have it's arms supplied by the government is the Unorganized militia and these people are comprised only of men (who are not required to arm themselves) -- it does not include women.


I agree.

Actually incorrect on both counts. Cannons were part of those militias and we do have the right to 'a frigate, armed to the teeth', it is called a Letter of Marque and yes the US approved of armed privateers during this time period. It even issued several Letters of Marque, just as most countries did during this time.

As for tanks being dangerous, well I read this today Hummm, but then again those were government owned vehicles, maybe those are the ones that need to be banned.

There is no "problem" as of yet. All I am saying is that there could be and if there can be there need to be measures taken to prevent the problem from occuring in the first place. If nothing happens, nothing happens, but I think that if something happens it is already too late and you screwed up somewhere along the line. There are limits in the constitution. There are limits at what age you are permitted to vote. Although there are none on weaponry yet, there needs to be some control on the more powerful. I am not against the individual right to own a weapon, I myself hunt yearly and go to the shooting range about 3 or 4 times a month but I think that there need to be restrictions on what non- military personell can purchase weapon wise.

If there is no problems, then why does it need to be fixed? I mean to say that yes some of the weapons can be a problem, but that seems to be with the government owned weapons, not the privately held ones.

When was the last time that a privately owned F-16 strafed a local school? Or a private citizen drove over a car with his tank? As like as not the privately owned weapons do not seem to be as dangerous to the public as the government owned ones.

Actually, correct on both counts. For one man to "keep and bear" a cannon would not qualify as being "well regulated". It takes several men to operate properly. How can one man, alone on a frigate, deliver a broadside?
To "keep and bear" means to "carry and use properly".

The term arms is the question. Arms means weapons, in fact it was a crime (by Americans) then and still is to "bearing arms against these United States." According to one George Washington. That did not refer to small arms only.

James Madison wrote in the Federalist #46 "Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments ..." The British employed far more than muskets and pistols.

So to claim only those weapons that can be carried is not correct. It refers to all branches of the armed forces as 'arms', there is no requirement mentioned that state that a person has to be able to carry the weapon. If that was the case, then the National Guard needs to turn in their aircraft, tanks, and artillery pieces because they can not be carried by one person.

When the Constitution was first submitted to Congress, it couldn't get ratified. So, the Amendments were created (the Bill Of Rights) to satisfy both sides of the aisle.

If you take a step backwards, the original premise of the 2nd amendment was based around the 1688 British Bill of Rights. They declared every able bodied PROTESTANT male between the ages of 18 and 45 to be part of a mandatory militia.

Jefferson, was a federalist and boldly declared "...no freeman shall be disbarred the use of a firearm.." or something to that effect. But John Adams, an anti-federalist, rejected that notion because of what he called "mob rule".

The federalist papers were not a model for the Constitution, they were papers written to get the proposed amendments ratified. The federalists had their version and the anti-federalists had theirs.

So, to get the Constitution ratified, the Constitution was amended to make sure the states could protect themselves without the feds getting in the way, yet not create the "mob rule" scenario Adams was afraid of. The term "well-regulated" is in the amendment and regardless of what you think a militia is, it HAS to be well-regulated. All amendments were a result of negotiation to get them passed. The Constitution could not have passed with the NRA interpretation because the anti-federalists would have voted it down.

Back in the day, the militia meant you needed to be an able-bodied male between 18 and 45, regularly muster, and have arms in good working condition. Unfortunately, the militia sucked back then. They couldn't get people to show up, the guns were not usable, and the desertion rate was off the charts. Even though the colonials hated a standing army, the regular army was created and used and the militia was used to help them. To be clear, I am not 'dissing the patriotism of the miltitiamen that did serve. But it was not an effective fighting force.

Now, we make the amendment mean what we want it to by labeling everything as the "unorganized militia". But nobody can explain how that militia is "well -regulated". As pointed out earlier, why have the preamble to that amendment at all if it had nothing to do with a militia? Every other place in the Constitution clearly says "the people of the states". They're not called a militia there.

Finally, answer this question for me:
Wertz and I don't agree on a lot of things, but my bet is he would think - as I do - our government has become very tyrannical (my apologies if I'm wrong, but it's all to make a point anyhow).

We are paying taxes on top of taxes, homes and properties are being seized for economic reasons, people are being detained and held without representation, the Patriot acts have stripped away many rights to an embarrassing level, and many think elections are rigged.

So, me and Wertz believe we are living in tyranny. Do we have a right to violently overthrow our government? According to the NRA, we have a legal right to start shooting our US soldiers. In fact, if we survive the attacks, we can't be held criminally liable because we are exercising our 2nd amendment rights.

Do you see how absurd that is? With an individual right, we could individually make that call and act on it. But it's not. It's a collective right created to make sure we can adequately defend ourselves from our enemies without government interference. And nowhere is the government stated as a potential enemy.

The Supreme Court has ruled the second to be a collective right for these and many other reasons. Billy Bob sitting on his front trailer porch sucking down a Budweiser with a shotgun over his lap might be your example of an "unorganized militia", but there is nothing well-regulated by it. And that is what is most overlooked in trying to make the second what it is not.

They don't need to, as I have pointed out earlier and documented.

The amendment is phrased (and not by accident) to mean, "Since a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Which means, even if the militia in your part of town isn't particularly well regulated, the right to KBA is unaffected - it still "shall not be infringed", even if your militia falls completely apart and vanishes. That first phrase is an explanation, not a condition necessary to your having the right.

If the 2nd amendment had simply said, "The right of the people to keep and bear arms shall not be infringed", its impact would be no different, in any way or under any circumstances, than the complete one that the Framers actually did put in the Constitution.


Yes they did, one time, in the case US v. Miller in 1939. And the "many other reasons" you mention, were embodied in the arguments presented in open court by the lawyers for the prosecution (that is, the government's side).

And every one of those arguments was flatly and demonstrably false. The only reason they weren't instantly debunked, is because neither the defendant nor his lawyers, even showed up for the trial. Nobody from the defense was even present, and the justices were careful not to ask questions.

Among the false statements made were:

1.) The 2nd amendment applies only to weapons identical or similar to those in use by the military at the time.

(In truth, the 2nd says nothing of the kind, as I and others have repeatedly pointed out and documented. It applies to all weapons without restriction.)

2.) The weapon in question, a sawed-off shotgun, bears no resemblance to weapons used by the military. Coupled with "fact" No. 1 above, that means its ownership is not protected by the 2nd.

(In truth, short-barrelled shotguns were used quite a lot by the armed forces of both sides, in the most recent major conflict involving American military, World War I. They were referred to as "trench guns".)

There were other such statements, which were easily disprovable... except nobody was there to disprove them. So the justices rubber-stamped these lies into an opinion, and ruled that the 2nd amendment did not protect the defendant's right to own that shotgun. It was a conclusion as false as the evidence it was made from.

The justices even tried to point out that they had heard only one side in the case. They used language such as, "Since it is not within judicial notice that a weapon of the type owned by Mr. Miller is in common usage by the armed forces..." (not an exact quote, but very close, and the gist is there). In other words, "Since nobody has come here and told us that shotguns were used in the military, we'll assume they weren't, and go with the prosecution's side."

Since then, the Supremes have been very careful to never address another case concerned primarily with the 2nd amendment, and they have turned down some doozies. Today, virtually all of the gun-control edifice built by those rigidly opposed to gun ownership, has rested on that one case, US v. Miller... since they have very little else to rest on.

The good news is, once the US v. Miller case finally IS revisited, it will almost surely be thrown out. and the scene will be set for the overturning of nearly all gun control laws, since they are flatly unconstitutional as well as contrary to the wishes of the Framers.

Well, maybe I should be a little careful in predicting that, now that the Supremes have OK'd deliberate racial discrimination in Michigan and government suppression of free speech in political campaigns. But according to what the Constitution actually says, anyway, the rejection of the Miller verdict is a slam-dunk.

US v Miller WAS revisited through the US V Emerson case.

And the same guys who helped get Bush into office (not really, I think they ruled correctly, but they are clearly a more conservative court), rejected hearing the Emerson case.

The Emerson case WAS the case you are referring to. It presented the biggest and clearest challenge to US v Miller, was fought bitterly by the NRA, and supported by Ashcroft. But the Supremes rejected hearing it because they would have overturned the Emerson's federal court ruling. Instead, they let it stand without precedent.

Since then, no federal level court has used the Emerson case as a precedent. At least two cases since then have ruled in favor of US v Miller.

That's news to me. Not that they had refused to hear it - as I said, they have been carefully avoiding any such cases, as they also did the Lockyear case from the much-overturned 9th Circuit. But I'd never heard that that was their stated reason - to avoid overturning Miller.

Do you have any references or cites, showing that this was why they refused cert on the 5th Circuit's US v. Emerson case?

BTW, the 5th Circuit found against Dr. Emerson... just barely, they said. And then they wrote out a 60-page essay on why, in virtually all other circumstances, Emerson would have been found innocent and the 2nd amendment would have protected his - and all of our - right to keep and bear privately-owned arms independent of any military affiliation.

The 9th Circus found exactly the opposite a few years later in the Lockyear case in California, ruling that the 2nd amendment afforded no protection of any individual right to KBA, but only for military groups. The nearly-simultaneous and opposite rulings on the two cases, on a clear case of Constitutional interpretation, formed a crux that the Supreme Court was tailor-made to take into its jurisdiction. And the Supremes ducked both. I wonder if granting cert, is decided by majority votes of the justices, as actual case verdicts are? And whether they were 5-4 votes?

I don't see the "not only.. but also" part of that in the Amendment itself. You seem to simply be reiterating the fact that the right to bear arms is in the specific context of their recent experience of the effectiveness of militias - and I would agree. Sadly, those circumspect old coots didn't say "The right to form well-regulated militias shall not be infringed". Nor, just as sadly, did they simply say "The right to keep and bear arms shall not be infringed". They linked the two. If the two were not intended to be linked in reality as well as words, why did they link them? And, again, why does this sort of preface only occur in one amendment?

I am well aware of the Framer's attitude toward tyrannical government. I wish more people were. I wish more people acted on it. I am also certain that the citizens of the time were aware of their recent history - and would have even less cause than we do for a reminder - or a justification - being written into an Amendment. So, why did they feel it was necessary, if not to make the two items - militia and right to bear arms - contingent on each other? (I would be the first, by the way, to point out that this was a mistake, that they should never have included that first phrase - if, indeed, their intent was to secure an individual right to bear arms in any context apart from that of the militias.)


Again, you seem to be confirming that the right to keep and bear arms exists to protect the militia - that the two are not independent, that the right to bear arms would be irrelevant in the absence of the dependence on a well-regulated militia. And again, you can't tell me why, in this one instance, the authors of the Amendments felt obliged to "point out a reason". It sounds, to me, like an attempt to brush off an inconvenient condition. A condition which I should again add that I don't feel should have been included. Unfortunately, it's not up to me - or you - to pretend that those dozen words were just an historical flourish, an embellishment, a frippery rather than a clause integral to the right being secured.