The presence of "A well regulated militia" in the wording of the Second Amendment

[veganlush]

This discussion thread was locked as off-topic by seabeyond (a host of the General Discussion forum).

explains the absence of an acknowledgement of the "infringements" that nearly everyone realizes need to be in place. Thus I have cracked the code of the Second Amendment. In other words, if you wondered as I have why they said "shall not be infringed" knowing full well that infringements were obviously necessary, you need only realize the context, which is that they had already provided the qualifier which was "A well regulated militia". They didn't need to list the necessary infringements because inclusion in a well regulated militia would be predicated upon not having the challenges that would require those infringements. Those who are too young, or who have mental issues, or physical limitations or criminal history, etc, etc, would not make it into a well regulated militia.

[polichick]

1. Seems a lot of people consider the NRA "a well regulated militia" these days.

[joeybee12]

2. KNR

[elleng]

3. Whatever,

the Supremes dispatched 'A well regulated militia' in Heller.

[Hoyt]

20. The 5 right wingers did.

[badtoworse]

24. What difference does that make? It still has the same legal force.

[Lint Head]

4. The reason for this is because the USA did not have a standing army and Jefferson never

intended the nation to have one. They people would be called up in time of threats and defense needs.

[TheWraith]

7. Jefferson didn't write the constitution, but you're generally correct.

A standing army was impractical given the limitations, unaffordable, and raised questions about who controlled it.

The constitution of Pennsylvania is actually much better worded in this regard: there, it's explicitly stated that the right to bear arms is guaranteed for the purposes of defense of the self, and for the defense of the state.

[NutmegYankee]

17. The Connecticut Constitution is also very clear.

It says: Every citizen has a right to bear arms in defense of himself and the state.

[KamaAina]

18. Elbridge Gerry, for whom the gerrymander was named:

"A standing army is like a standing member. It's an excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure."

[TheWraith]

5. No, that's not what it means.

Service in a militia has never been a precondition to firearms ownership; even if it were, the legal definition of "unorganized militia" in the US is every able bodied male age 17 to 45. There's no "code" involved.

[CJCRANE]

6. Good point.

It's also a "right of the people", i.e. in the plural, so not necessarily an individual right.

Other amendments make reference to individual rights with singular words such as "person", "the accused" etc.

[NutmegYankee]

9. 4th amendment -

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


That has always been interpreted as an individual right.

[CJCRANE]

13. "secure in their persons"...

"Persons" refers to people as individuals.

The 2nd Amendment doesn't say "No person shall be denied a gun" or "for the purpose of self defense". As it's written it refers to gun ownership in the context of militias. I don't mind either way, that's just what it seems to mean IMO.

[NutmegYankee]

15. Militia in the 18th century was the people.

It was persons living in towns or farming land. It was the citizens of the country.

[CJCRANE]

16. That's fair enough

but I assume the use of a militia was for an outside threat from a large military force. This doesn't imply the use of arms for individuals to defend themselves against other individuals in the same community. Although of course if everyone is armed then that will be an obvious consequence.

[NutmegYankee]

19. Congress can call the militia for three purposes.

From Article I, Section 8 of US Constitution: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

[CJCRANE]

23. I've learned something new today.

RKBA *is* an individual right...but designed for use in collective action. The individual self defense argument seems to be an unintended byproduct of that right (or at least not the primary purpose).

[TheWraith]

10. Yes, it is an individual right.

And always has been. The "collective right" argument is recent historical revisionism: every piece of contemporary documentation shows no question that that was the intent. Also, you're factually wrong. The first and fourth amendments also refer to "the people," plural, when describing individual rights.

[badtoworse]

12. In Heller, the SCOTUS said that the 2nd Amendment protects an individual right

[NutmegYankee]

8. The Second Amendment came from the Virginia Declaration of Rights (1776)

XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

[freshwest]

11. That's much clearer. Thanks.

[NutmegYankee]

14. The reason the Second is less specific is that it is an amendment to another document.

The Constitution contains the requirement for Civil control of the Military and also specifies this power to Congress: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. Obviously the founders did not intend to have a standing army during peacetime, though changes in military tactics and technology would require it in later years.

[freshwest]

22. I wish we did not have a standing army, but the world has not been working that way.

Investments are meant to be used, so they will be.

[Recursion]

21. Miller (1930s SCOTUS decision) basically says Congress can regulate non-military guns pretty freely

In that case, SCOTUS said that a sawed-off shotgun doesn't have significant military applications (that's a questionable decision of fact, but let's grant it arguendo) so Congress could require a tax stamp on it.

But this reading also means that handguns would be easier to regulate than AK-47s, which is contrary to our current political expectations. FWIW, personally I think the 2nd amendment doesn't particularly apply to personal ownership of handguns (but does apply to personal ownership of M16s), but the 9th amendment does.

[seabeyond]

25. this belongs in the gun forum. nt