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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsDid the Founding Fathers mean to keep arms IN a regulated milita
such as the armed services, law enforcement agencies and others.
Re-read the Second Amendment again:
As passed by the Congress:
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.
As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
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.
If that is how I read the Second Amendment, then everyone who do not meet the definition of a "well regualted Milita" do not have the right to bear arms, and thus cannot legally own or use a gun.
Does anyone agree with what I am reading?
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nebenaube
(3,496 posts)In every state I have lived in the citizens were basically defined as the militia.
slackmaster
(60,567 posts)United States Code:
10 USC § 311 - Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
http://www.law.cornell.edu/uscode/text/10/311
California Military and Veterans Code:
MILITARY AND VETERANS CODE
SECTION 120-130
120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia--and the unorganized militia.
121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard, the
State Military Reserve, or the Naval Militia.
122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.
123. Whenever the Governor deems it necessary, he or she may order
an enrollment to be made by officers designated by the Governor, of
all persons liable to service in the militia. The enrollment shall
include any information that the Governor may require. Three copies
thereof shall be made: one copy shall be filed in the office of the
clerk of the county in which the enrollment is made, and two copies
in the office of the Adjutant General.
124. Enrollment shall be made upon such notice and in such manner
as the Governor may direct. Every person required by such notice to
enroll who fails or refuses so to do is guilty of a misdemeanor.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=mvc&group=00001-01000&file=120-130
ananda
(35,152 posts)A militia is comprised of anyone subject to conscription! Dog, I didn't know that.
That is fucking scary... and I guess it includes people like Holmes, although I'd bet
money he'd be rejected from the armed forces if conscripted or trying to join up.
slackmaster
(60,567 posts)The militia law in my state means the governor can compel able-bodied people to pitch in and help others in an emergency.
For example, he could call up the militia to fill and place sand bags to shore up levies to protect a town from a flooding river.
pscot
(21,044 posts)He favored making ownership of a long gun mandatory for all (white, male, voting) citizens.
alcibiades_mystery
(36,437 posts)
pscot
(21,044 posts)
SoutherDem
(2,307 posts)Am I guessing the California code applies ONLY to California, what about the other 49 states, do they have a similar code?
The reason I ask is this:
10 USC § 311 - Militia: composition and classes
Doesn't that simply mean members of the National Guard?
Simply states different types follow
Once again MEMBERS of the National Guard
What militia is that? Doesn't it say "consists of members"? Why are you saying that is everyone? Explain how this says every person subject to conscription.
I am not a lawyer but I don't understand the conclusions your are drawing.
Don't take this as me saying you are wrong, it is me wanting an explanation.
slackmaster
(60,567 posts)...duty that was expected of every able-bodied person (or at least every able-bodied man.)
In context, the militia existed and was assumed to consist of everyone who was capable of contributing.
Most families did own at least one firearm, that served for hunting, varmint control, and self-defense. It could also be used in militia duty to serve common defense.
SoutherDem
(2,307 posts)I understand what you are saying. And if we are talking about strict interpretation based on what things meant in the 18th century I would agree. On the same note if we are talking about what things meant in the 18th century we could also say the arms which we are allowed to bear are all muzzle loaded. If we are forced to keep the definition of militia to that in the 18th century why not the definition of what arms are too?
I really am not trying to be argumentative, I wanted to know how that particular code was saying that. What year was it created? You and I are reading is differently. I was wanting to know maybe a court case which has supported your position. Or, for you to point out how those words could clearly be deemed to mean what you are saying. To me it is referring to an additional group which have "joined" a militia, not an automatic assumption.
rl6214
(8,142 posts)would it not the logical that as the weaponry progressed, the the guns the militia would carry (or the army) would progress as well? The AR15 to a modern army or milita is the musket of today.
"If we are forced to keep the definition of militia to that in the 18th century why not the definition of what arms are too? "
In Colonial times "arms" usually meant weapons that could be carried. This included knives, swords, rifles and pistols. It dosen't matter that guns have progressed into what they are, they are still carried weapons.
SoutherDem
(2,307 posts)as to logical weaponry would progress, well maybe or maybe not. To assume in 1787 someone could even dream where guns would progress to in 2012 would be a bit of a stretch. My point was if we use a 1787 definition of militia then use a 1787 definition of arms. If you want a 2012 definition of arms us a 2012 definition of militia.
The weapons which can be carried would open a whole new group of weapons and a whole new argument.
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sarisataka
(22,695 posts)all men (and now women I'm sure) capable of performing duty for the state who are neither MG nor NM (or NGAF)
In other words, if you are a healthy person who is not in some form of the military you are a member of the unorganized militia.
In regards to well regulated, it means 'in good working order' or 'capable of perform the assigned task'. That part is on the citizen to keep themselves well regulated.
Angleae
(4,801 posts)The part that says "who are members of the National Guard" is preceded immediately by "female citizens of the United States" so that part only applies to women. The unoganized militia is comprised of
1: *ALL* men ages 17-44 who are citizens (or trying to become one)
2: all men and women in the national guard/naval militia/state militias/etc regardless of age
immoderate
(20,885 posts)According to Hamilton in the Federalist, means something similar to well-qualified. It's like a diver having a well regulated air supply.
Having said that, I don't thing 100 round magazines is necessary for civilian use, unless you need to rob a bank or take down an armored car.
--imm
demwing
(16,916 posts)Didn't you see Red Dawn?
alcibiades_mystery
(36,437 posts)rl6214
(8,142 posts)lumberjack_jeff
(33,224 posts)Without a standing army, able bodied men were expected to remain prepared for conscription on a moment's notice i.e. "minutemen".
I have a couple of guns, but it should seem apparent that things have changed. A well regulated militia is no longer necessary to the security of the state.
SoutherDem
(2,307 posts)Try to make that argument. When I have in the past I have been told the following.
Every citizen is by default part of the militia,
SCOTUS at some point said it did not require militia membership,
We already have enough or too many regulations,
And what scares me is that we may need one day to stop our own government. It scares me because I can see that from two points of view. The tea baggers try to overturn the government, or the poor taking over from the rich. Either would mean civil war, something I hope we never see again. Plus, if we attempt to attack the US Military with even the vast number of guns and types of guns in the hands of the pro gun people they would still loose very quickly.
For the intent of the 2A to hold any meaning today, as it seemed to mean to the founding fathers (A well regulated Militia, being necessary to the security of a free State), bear arms will need to be expanded to rocket launchers, tanks, planes, bombs, mortars and other heavy weapons.
I actually support gun rights, but I feel reasonable restrictions are acceptable. Sadly, it seems some feel it is an all or nothing proposition.
IMHO
shadowrider
(4,941 posts)The problem comes about when we can't agree on what "reasonable" is.
What is your idea of reasonable?
sarisataka
(22,695 posts)is why nothing ever gets done.
Both sides think 'reasonable' is what their side suggests...
shadowrider
(4,941 posts)
DrDan
(20,411 posts)that stated in a poll that they were against ALL regulation with respect to gun ownership.
Half dozen or so - not a lot - but some DUers.
shadowrider
(4,941 posts)SoutherDem
(2,307 posts)I am sorry, but go back and read posts from Friday. Talk to many of the members of the NRA. Talk to those who think a president who hasn't done one thing to restrict gun ownership want to "take all our guns", I was told by someone on Friday we have too many regulations already that the only additional regulation we could have would be total banning. I think you will find some. If not maybe I should ask what are unreasonable reasonable regulations?
But to answer your question,
A national law where you can't choose which states laws you want to follow. The strongest law is only as good as the weakest as long as someone can pick a state with weak laws to buy guns.
Required training class, one which is serious, not a 30 minute lecture, and which requires a proficiently test. Similar to getting a drivers license.
Realizing that for hunting and normal self defense some guns or accessories may not be needed. I am not saying make these weapons illegal, but have a greater demonstration of need. As I understand, from those on the gun forum here on DU if you are willing to go thought the process and pay the tax for the stamp. Someone can own fully automatic weapons. I am not saying go that far, but having to demonstrate need or mental health and having someone make the decision who is not wanting to make a sale.
I don't really have an opinion on the number of guns which can be owned or the amount of ammo one can own. I understand collectors and those who target practice may go through a lot of ammo. But, possibly a month or year limit which could be waived with a reasonable explanation.
I feel those are reasonable and do to infringe ones right to bear arms.
shadowrider
(4,941 posts)A national law won't work because, simply, Wyoming or New Mexico isn't Chicago or New York. It would be very difficult, if not impossible, to find a middle ground.
Additional training? I can agree with that.
As far as guns or accessories, why should someone have to explain why to a government worker who most probably has no knowledge of what is being explained (see posts here complaining about assault rifles) and could result in suspicion and increased questioning. I might have a problem with that one.
Again, going through a lot of ammo shouldn't be government sanctioned by having to explain yourself. Yearly limits are a slippery slope. What is the number and why wouldn't the gov't be able to arbitrarily reduce that number at some point in the future?
Just my two cents, your opinion may differ.
SoutherDem
(2,307 posts)But, I understand your example that one national law would not work and to a great extent I agree. Maybe a better way of saying my point would be a national minimum, not based on the most strict but not the most relaxed either. If a state wants to make theirs stricter that would be fine. From what I can tell looking on line we range from near none to extremely restrictive. Neither is right. Finding the middle may indeed be hard. I honestly don't know where the line should be drawn.
We agree on the training, enough said.
The government worker I was thinking of was the Sheriff who is elected but an elected board would work also. I do understand the difference between semi-auto and full-auto. Also, the looks of a gun does not make the gun. I am not seeking banning any guns or even accessories. However, I would like to see someone have to give an explanation as to why they are needing/wanting a certain types of gun. The point isn't the reason, even target practice may be a good reason, self defense too. This would at least cause a second glance at a person seeking a gun which can shoot 100 rounds without reloading. Actually, I may be suggesting making some items easier to get. My point isn't to prevent gun sales or ownership. It just seems to me allowing the person benefiting from the sale to make the decision if this person wants the gun for target practice vs. taking out a group of people is not fair or safe. When things happen like what happened Friday in CO we seem to start looking very close at these people and some ask why didn't someone catch this. I want to add one step to try and catch it. Simply knowing you will be looked at a second time may be enough to stop someone, or get that person help.
Really most of my last answer would apply to the ammo too. I don't want a hard limit. I want a point that if someone is building an arsenal to do something criminal a flag goes up. This would not stop every crazy person. But, if it stops a few it may be worth the small inconvenience.
Thanks for honest answers. Too often with this subject I see BOTH side giving snark answers rather than attempting to discuss the issue.
FreakinDJ
(17,644 posts)its means the average citizen shall have the right to keep and bear arms - plain and simple
Talk to the average citizen of Hungery who lived through the Communist take over of that country
Motown_Johnny
(22,308 posts)This was about a state being able to keep military forces under it's control.
It makes no sense at all that they wrote in "well regulated militia" when they didn't mean it.
FreakinDJ
(17,644 posts)Don;t we lambast the Freepers around here for doing just that
cherokeeprogressive
(24,853 posts)HereSince1628
(36,063 posts)because legal text sometimes carries specific meaning not used in common speech. That said, it seems to me that...
The subordinate clause at the front of that sentence doesn't seem to be a condition under which possession of guns would be allowed. It seems to be one rationale, a rationale relevant to the federal government, why gun possession should be allowed.
On the other hand the major clause beginning 'the right...' is a clear statement of limitation on government.
Motown_Johnny
(22,308 posts)The first clause is a qualifier. The closing clause is dependent on meeting that qualification. Since militias are no longer necessary for the security of a free state the right of the people to keep and bear arms is no longer a constitutionally protected right.
slackmaster
(60,567 posts)Go ahead and try. Until that happens, it's the law of the land.
HereSince1628
(36,063 posts)If you can please explain how the first clause works as a limiting condition on the agent or circumstance of the declarative clause?
I'd like to think I am open to being convinced.
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kentuck
(115,407 posts)is actually a clarifying clause, specifying conditions upon the main clause.
HereSince1628
(36,063 posts)I said subordinate because it isn't a complete thought.
IMO, it's suggesting a rationale (the need for a 'bring your own gun' militia) why this amendment is relevant to restraining federal lawmaking--one of the purposes of the Constitution and Bill of Rights.
I don't see it as a limiting condition on the declarative statement that is the major clause, indeed in the major clause who can possess arms is expanded beyond the militia to the population in general .
I'm open to being convinced otherwise.
4th law of robotics
(6,801 posts)they were listing out certain rights that explicitly stated *what the government may not do to you* after removing what they believed was an overbearing tyrant.
Why would they then write a line giving the government permission to arm a military? A standing military was seen as a grave threat to personal freedoms and besides, when has anyone ever denied a government the right to form an army? Why would that "right" need to be protected?
It would make as much sense as putting in a "right" to print money or levy taxes (none of which is found in the bill of rights).
Motown_Johnny
(22,308 posts)That is why they wanted to keep state militias. To "secure their free state".
Lizzie Poppet
(10,164 posts)"If that is how I read the Second Amendment, then everyone who do not meet the definition of a "well regulated Militia" do not have the right to bear arms, and thus cannot legally own or use a gun. "
I don't agree. For one thing, the structure of the sentence is such that it creates a rationale for prohibiting infringement, not a sole and exclusive rationale. The amendment doesn't preclude other rationales, it simply doesn't state any of them. Unless one subscribes to the "what is not explicitly permitted is prohibited" model of law and government, the RKBA would remain available to all "the people."
More importantly, the sentence ascribes the RKBA to a set (the people) that contains the subset (militia) mentioned in the stated rationale. It establishes as antecedent that the RKBA applies to the larger set from which the subset is then derived. Had the intent been to restrict toe RKBA to the subset, the language of the amendment would have to be different (something along the lines of "...the right of the militia to keep and bear arms shall not be infringed"
.
Motown_Johnny
(22,308 posts)I agree there are other rationals for owning guns that are not included in the second amendment. They are not included because those are also not constitutionally protected.
Lizzie Poppet
(10,164 posts)As I pointed out previously, the RKBA is ascribed to the greater set "the people" by virtue of how the sentence comprising the amendment works. Not to the subset "militia..."
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Motown_Johnny
(22,308 posts)The definition of a Constitutional right is a right that is protected by a provision of the Constitution.
If this were somehow a right protected by nature (god) then all humans would have that right, they don't.
In truth the natural "right to life", as you put it, would fall to those who are endangered by other's ownership of firearms. People are killed with firearms every day. Those victims have a "right to life" which is violated by the person using the firearm.
kentuck
(115,407 posts)they were saying that we should have an army to protect our new nation and that every citizen had the right to bear arms for the purpose and necessity of preserving the security of a free state.
Odin2005
(53,521 posts)In Switzerland everyone is eligible to be called up for the militia and has to have a gun.
Tejas
(4,759 posts)oh wait
DCBob
(24,689 posts)We dont need citizen militias anymore. The National Guard does that function now.
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Marrah_G
(28,581 posts)There was not a permanent big military, law enforcement was no where on the scale that it is now. Militias were made up of the local townsfolk.
Tierra_y_Libertad
(50,414 posts)And, it is well regulated. Which is more than can be said of the politicians who send it to kill and die.
proud2BlibKansan
(96,793 posts)The framers weren't concerned about an individual's right to bear arms. They were concerned that their young country was broke and could not afford to maintain a standing army. Giving the people the right to bear arms meant they could quickly gather a militia together in case of a foreign invasion. And they wouldn't have to worry about arming their soldiers, as they would already have their own guns. He said it was also common, in an agrarian society, for many people to have guns - they were considered necessary for survival - and the framers didn't want to infringe on that. But the need for a militia was the main reason the 2nd amendment was written.
He also taught me that courts are free to interpret the constitution and not every court would agree with his interpretation. And since he was a teacher and not a lawyer, he suspected legal and constitutional experts may disagree with him.
robinlynne
(15,481 posts)Posteritatis
(18,807 posts)I'm actually not trying to be snarky there - it's just that this extent of the arguing over what was going on in the heads of people framing constitutional documents seems to be something more or less unique to the US. It's odd to me.
The constitution up here is most of a century younger for its older parts (and within my lifetime for the Charter), and while there's still arguments over the specifics they tend to focus on language and precedent rather than the Fathers of Confederation were thinking when they started putting the country together.
I dunno, I just find the existence of the discussion fascinating.
EX500rider
(12,583 posts)"A free press being necessary to the freedom of a free state, the right of the people to free speech shall not be infringed."
Would you argue that only the members of the press have free speech or also the entire people?
cali
(114,904 posts)the SCOTUS is the ultimate arbiter of all things Constitution.
Panasonic
(2,921 posts)This has been all interesting.
I've had guns before, but threw them out after deciding it's not even worth the hassle. I was so surprised how easily I could obtain a gun - I've owned a revolver and pistol, and yes, I've shot them in a range. That's about the gist of it. I can understand how powerful it is to own one, and can see the rationale of keeping one for defensive purpose only.
But what I don't understand is why NRA continues to influence gun policy when we are trying to corral the rise of the crime and murders, even massacres and preventing them.
I want to see the UK policy on guns implemented here. http://en.wikipedia.org/wiki/Gun_politics_in_the_United_Kingdom
ileus
(15,396 posts)Now all we need to do is start the roundup of firearms.
A Simple Game
(9,214 posts)As written:
My version:
My version for the individual rights crowd:
I'm sure they put all that other stuff in there just to make it longer, most likely has no meaning at all.
moondust
(21,287 posts)The first clause clearly establishes the context for the second clause. That's the only reason to combine the two clauses into one sentence or even one amendment.
What the NRA does is selectively extract the second clause without its context because the context doesn't support what they want. It's the same kind of lying Republicans are doing today with some of their Obama ads, i.e. "You didn't build that," and earlier Obama quoting McCain but lifted out of context to make it sound like an Obama quote, etc.
elleng
(141,926 posts)There were no 'armed services' at the time.
Skittles
(171,717 posts)not at ALL
TransitJohn
(6,937 posts)eom n/t
Llewlladdwr
(2,175 posts)how you get from "A well regulated militia being necessary to the security of a free state,..." to "You have to be a member of the Militia in order for the following text to apply to you...". I really don't. Can you explain to me how you reached this interpretation?
Zorra
(27,670 posts)and get slaughtered by hostile natives.
What he wanted to do was take away their guns and keep them locked up in the nearest town so that they could not defend themselves and hostile tribes could slaughter them at will. He also had a deal with Safeway to take away settlers guns so they couldn't hunt and would have to shop at Safeway.
It's know it's true because I saw it on TV.
Study history. Find out what what life was like in those days.
Hunting
In 1785 Thomas Jefferson wrote to his fifteen-year-old nephew, Peter Carr, regarding what he considered the best form of exercise: "...I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body, and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks.".
snip--
1812 April 25. (Jefferson to James Maury). "All of my old friends are nearly gone...We would beguile our lingering hours with talking over our youthful exploits, our hunts on Peter's mountain..."[9]
1822 July 20. "I presume he is a gun-man, as I am sure he ought to be, and every American who wishes to protect his farm from the ravages of quadrupeds & his country from those of biped invaders. I am a great friend to the manly and healthy exercises of the gun."[10]
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