America is confused. Too many people make their decisions to support something because people they don’t like are opposed to it. So it goes with the gun issue: liberals want to control guns and the conservatives want no control at all because the liberals do and the liberals do because the conservatives don’t.
GOK who comments here called my attention to this NRA video. A young black woman tells how she doesn’t care what others think of her but she says: “I’m the National Rifle Association of America, and I’m Freedom’s Safest Place.”
Have you ever sat back and asked yourself what the NRA has to do with American freedom? The suggestion that having no control over who owns guns makes America free is ludicrous. Personal ownership of guns has nothing to do with American freedom.
Have you ever read the First Amendment. Here it is: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
What about the Third: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
The Fourth: “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.”
The Fifth: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
You have to admit they are pretty straight forward. The framers of the Bill of Rights which contain the first ten amendments to the US Constitution put a lot of time into setting our the rights of the people. The did not mince words and, as William Strunk taught, made every word tell.
Oh, what? I missed one. Let’s go back and look at that.
The Second Amendment: “[T]he right of the people to keep and bear arms, shall not be infringed.”
Just like all the other amendments. A straight forward assertion of the rights of the people in America. No shilly-shallying around for them. No problem with anyone misunderstanding what they wrote. The writers meant what they said and obviously said what they meant. Today, that is the way the Supreme Court has interpreted the Second Amendment as if it were written as above.
The problem is that is not how it was written but would have been if that was what was intended. Before the words telling of the right to bear arms were these words: “A well regulated militia, being necessary to the security of a free state, . . . “
If the intent was just the second part why was the first part written? Do you think it might have had some bearing on the words that followed? Our Supreme Court doesn’t since it just interprets the Second Amendment as if it only had the last part.
Matt,
Earlier you said the Military would follow the president, now you say the supreme court, which is it?
You hit the nail on the head with your question (at which point does the order become unlawful?), and you were 100% correct in indicating that “I was just following orders” is not a defense, at least not for officers. But you fail to recognize that the onus is on the person who has sworn the oath. At some point they are duty bound to decide and are responsible for their actions.
That is why I do not share your confidence that the military would simply follow orders should our government run amok, become tyrannical, etc.
Matt,
The obvious point is that your oath was to the constitution, not the president and not the court. A person cannot serve two masters, let alone three.
What would you have done if ordered by the President to do something which the court said was unconstitutional?
What would you have done if ordered by the president to do something which the court held to be constitutional but which you knew to unconstitutional?
What would you have done if ordered by the President to do something which the court said was unconstitutional and you knew it to be unconstitutional?
“Befehl ist Befehl”?
https://en.wikipedia.org/wiki/Superior_orders
At what point does the order become unlawful?
Does the order become unlawful when you decide that it is not lawful under the U.S. Constitution, or the Supreme Court decides that it is not lawful? Hopefully, the Supreme Court agrees with you, because you most definitely have a problem if the Supreme Court does not agree with you.
http://freebeacon.com/politics/leaked-audio-clinton-says-supreme-court-is-wrong-on-second-amendment/
https://www.nraila.org/articles/20151009/clinton-says-that-the-second-amendment-does-not-protect-an-individual-right-to-keep-and-bear-arms
Text of Oath taken before serving as a U.S. Senator, which Hillary Clinton has sworn:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
I do not see a phrase in the Oath that states ” I will support and defend the Constitution of the United States only when I agree with the current interpretation of the Supreme Court”.
Matt,
You will have to do better than “resistance is futile.”
In the 18th century Madison thought am attempt to tyrannize would be met by “a militia amounting to near half a million of citizens” -what would you say the number would be today? 10 million? 20 million? 50 million?
Would the government order nukes to be dropped on cities harboring resistors?
Would the government order conventional bombs to be dropped on cities harboring resistors?
How long after martial law was ordered, bombs were dropped, Drone strikes, etc. would the rest of the citizenry sit still?
The military takes a pledge to uphold the Constitution, I do not think they would long remain on the side of the government if there were a clear cut case of government overstepping its legal authority. But let’s hope we never have to find out.
I agree with Mike. You have to do better. As I argued previously, I do not think it is implausible that a viable insurgency could emerge in America. The Islamic State, Al Qaeda, and all their satellite networks would be obliterated in a conventional war against the Western powers. But look how much havoc they wreak (latest example: Nice).
Jon:
I expected you would but you and Mike are talking like we are in the 18th Century. We had one less than a dozen states and many sympathizers start an insurgency. At that time the weaponry was relatively even on both sides with horses and most guns being muzzle loaded. That was crushed in four years. No one doubts people intent on killing themselves could cause havoc but that is not a Western tradition. If there is anytime for a revolt it is now when we are offered as leaders of our country two people each of whom is held in disdain by 75% of the people. I have not heard any talk of armed insurrection to put in a more acceptable candidate. If you and Mike are basing your support of the Second Amendment on the idea that at some future date there will be an insurrection in the United States I would suggest the foundation is not too solid.
“I have not heard any talk of armed insurrection to put in a more acceptable candidate. ”
1. Serious “talk” of armed insurrection for any purpose would be suicidal.
2. That is not the socially acceptable process for putting in a more acceptable candidate.
However, I would like to refer you to what is know as “The Battle of Athens”:
http://www.constitution.org/mil/tn/batathen.htm
Matt,
So you are saying that in the 21st century and forevermore we will be ruled by angels and the threat of tyranny is banished forever.
What evidence do you have that it is so?
Mike:
The threat of tyranny will always be present; in present day America the ability of the citizens to do anything about it should they be ruled by a tyrant is zero.
Matt,
Well he knew what the second amendment meant, and he knew the difference between insurrection and domestic usurpations of power by rulers. You could learn something from him.
When you took your oath to defend the Constitution against all enemies foreign and domestic did you mean it? Or was that one of those… depends on what the meaning of “is” is?
Mike:
Story wrote in the context of his time which are not these times. My oath I took as an officer was “I DO SOLEMNLY SWEAR THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.” What has that got to do with what we are talking about? Are you suggesting that an opinion about the Constitution that differs from the interpretation of the Court is somehow a violation of that oath; or is it I am following one of my rights in the Bill of Rights.
Matt,
How do you figure that? Do you imagine that the military would, to a man, violate their oaths and support the tyrants instead of the Constitution? If the military stands down in such a case the tyrants would be easily defeated even by a lightly armed populace.
Why do you believe the people would be better off disarmed than armed in case our government ran amok?
Mike:
Having been in the military I know that the military will follow the presiden and the idea that it would not seems totally inconceivable. Who are these tyrants you are talking about? The situation you talk about is out of fantasy land where you suggest the military (and police) would stand back and let a lightly armed populace take over the government. If our government ran amok the military would guarantee it.
By the way I never said the people should be disarmed – you fall into the NRA trap that meaingful restrictions on arms is disarming the people. You must also believe the NRA advertisements that they guarantee our freedom.
Matt,
There you go again, misunderstanding the meaning of the second amendment. It is clear that you do not care much for what those 18th and 19th century folks said about 2A, but you might take the time to learn what the amendment means before making additional errors.
Joseph Story on Second amendment:
“The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against
sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against
the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” (end quote)
People who would engage in “domestic insurrection” because their candidate did not win the primary could hardly be said to acting within the meaning of the amendment as it was described by those 18th and 19th century fellows.
Mike:
Story died 170 years ago even before the Civil War. What did he know of the type of weapons and armies we have today. We don’t have militias anymore except some right wing nuts in the hinterlands. Suggesting that we follow the logic of people who lived before the invention of repeating weapons makes little sense to me. We have no idea what guys like Story would think today.
Matt, Freedom, as you attest, also includes the right of the people to be “secure in their persons, houses, etc.” Gun-ownership makes people secure.
The 2nd A’s “security of the free State” protects each individual State against a potentially oppressive national government.
As Daniel indicated: There is no free speech or freedom of religion when the National Government has all the power; this is evident in countries like China and North Korea, where the people are disarmed. The 2nd Amendment protects the 1st and 4th etc.
All your arguments have been placed before the Supreme Court and rejected by the majority. The minority wishes to expand Federal Powers and Centralize Control of We the People.
In 18th Century terminology, as your Commentators and the Supreme Court attests, the phrase “well regulated Militia” meant nothing more than “well-trained free men”: persons bearing arms. The men at Lexington-Concord, New Orleans, the Alamo, and all along the Frontier are examples of well trained volunteer free men defending Liberty.
“Well regulated”, meant well trained in the 18th Cent, and the NRA and gun clubs today help ensure gun owners are well trained.
The Supreme Court has stated that a Militia is just one purpose why the people’s right to keep and bear arms must not be infringed.
The 2nd Amendment does not prohibit guns being kept out of the hands of felons and the mentally ill; the 2nd A does not prohibit reasonable state regulations. (ex: No guns in public buildings)
Perhaps the NRA should issue certificates saying members are part of their local “Militias.” Would that satisfy the dissenters on the Supreme Court?
Bill:
No amount of guns in the house or garage will protect any person against the present government. Right now the Government has all the power and the citizens with guns do not amount to a bump on a log. If it was of the mind it could easily take all the guns away since there is no way any group of citizens could stand up to a modern army. It is predicted that the Russian Army could capture all of Eastern Europe in three days.
As you know the courts decide things by their philosophy – you of all people should know that. Law can be twisted and turned to support any proposition as it is with the Second Amendment which ignores the first part and acts as if only the second part existed.
What happened in the 18th and 19th Century has little bearing on the present time – even the Court has recognized that under the Fourth Amendment where it recognized the “trespass” doctrine made no sense because the government did not have to trespass to intrude upon people’s private conversations.
The NRA does little more than scare the American people with arguments that you could drive a bull dozer through if you paid attention. It claims it is responsible for our freedom. What nonsense. Our freedom is guaranteed not by guns but by the courts and public servants who ensure it remains.
You point out how the wording in the Second Amendment that the rights of people to bear arms shall not be infringed is already not being followed – you can’t as you note carry a gun onto a plane. I suggest it was never the intent to confer unfettered rights on the people to bear arms; that those who are armed should be licensed and their arms registered. I don’t know why so many object.
Those that object based on the idea we have to protect ourselves against the state are walking beside Alice in Wonderland. The state is too powerful to overthrow no matter what it does. In the 18th Century that was not the case.
The Second Amendment was written to protect the First Amendment.
Another helpful excerpt:
“As Noah Webster put it in a pamphlet urging ratification of the Constitution, “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.” George Mason remarked to his Virginia delegates regarding the colonies’ recent experience with Britain, in which the Monarch’s goal had been “to disarm the people; that [that] . . . was the best and most effectual way to enslave them.” A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment’s overriding goal as a check upon the national government’s standing army: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say “A Militia well regulated by the Congress, being necessary to the security of a free State” — because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the “security of a free State.” “
Jon:
You miss a couple of points. First, the differences in weapons between then and now. Second, the point of my article that it would have been easy to omit the first part and leave in the second if that was the intent. All the talk about militias and kings and the like makes no sense in present day America. What is wrong with the government licensing and registering all weapons and prohibiting some people from getting access to some weapons?
Matt,
I don’t see the differences between then and now as relevant. It seems to argue that when the times change, an amendment is no longer valid.
I don’t see how I don’t address the introductory clause. The point of the clause is to provide justification for the right of the people to bear arms, in terms that people of time would perfectly understand: the right to organize into militias when a free state faces the threat of tyranny (e.g. standing army).
I don’t necessarily oppose licensing and registration, though I’d have to think about the pros and cons. My concern is with those who would argue that the second amendment does not guarantee the right of private citizens to own guns.
Let me rephrase. The introductory clause of the second amendment guarantees the right to bear arms as a condition of the additional guarantee of the right to organize into militias when a free state is threatened by tyranny. You might say there are two rights contained within the second amendment: the right to bear arms, and the right to organize into militias. Both rights are to be held by the people. The right to bear arms is what makes an well-regulated, i.e. organized, militia effective in the fight against any threat of tyranny.
Jon:
When times changed the Supreme Court did change the interpretation of amendments. The Fourth Amendment was based on the idea of a “trespass.” The government could not trespass onto another person’s curtilage. When the government developed the means to overhear what was going on in rooms or telephones without trespassing the Court changed the meaning of the Fourth Amendment so that what was important was the right of privacy.
My point is simple — there was no need for the first part (A well regulated Militia, being necessary to the security of a free State) if all the Founding Fathers wanted to say was the second part (the right of the people to keep and bear Arms, shall not be infringed.). The other amendments did not explain anything but just were bold commands to protect the rights of the people. The Second Amendment could have been written the same way but it wasn’t so you cannot say the first part has no bearing on the second.
Reading the parts together it is difficult to find a right of private citizens outside of the need of the security of a free state to have arms. Today we have a standing army and do not need nor would it make sense to rely upon private citizens to keep us safe.
Matt,
Then why didn’t the framers just say “a standing army is necessary to the security of a free state?”
Because they did not think that was true, in fact they thought a standing army to be a threat to liberty.
Tench Coxe, wrote in the Federal Gazette (1789) : “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”
You are misinterpreting the prefatory phrase. Jon explained earlier what was meant by “well-regulated militia” but you misunderstand the meaning of “a free state” as well. Here is a hint, read Memorial and Remonstrance and count how many reasons that relate to individual liberty that Madison and the other “faithful members of a free State” give for opposing “A Bill establishing a provision for Teachers of the Christian Religion.” Madison and the other “faithful members of a free State” were concerned for the liberties of the people within the state, and that the government not become tyrannical.
Lastly Federalist 46 contradicts Justice Stevens’ insistence that the second amendment was meant mainly to protect the state governments from the federal government. Madison wrote: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.”
Mike:
The Founding Fathers in the days of muskets and one shot guns feared a standing army. Now we have one. Times change. Its purpose is to protect our freedom. If we did not have one I suggest we wold not be free for long. You can site all the 19th Century articles that you wish but they have no bearing upon the world of today and that is my point. When the world changes we too must change as we do in many instances but in the realm of guns all we talk about is what was said in the late 1700s.
You have to acept that the type of guns has changed over the 250 years which I pointed out. To suggest because the speed limit for horses was 10 mph back in Washington’s day therefore we should keep it that way makes little sense.
In the United States the ultimate authority is not the people. Madison lived in another time and another world. The people pretty much lost that right when a group of them decided they wanted to leave the union. From that time on the ultimate authority in the country resided in the Supreme Court which decides the law. The people can only decide who will represent them; how they can act is governed by those they elect who pass and enforce the laws and as interpreted by the Supreme Court.
Since we are discussing the meaning of words, you wrote “The government could not trespass onto another person’s cutilage.” When a woman has miscarried, her uterus may need to be accessed via widening of the cervical opening and the uterine lining scraped out while under sedation. The procedure is called “dilation and cutilage”. Perhaps you meant “curtilage”?
http://legal-dictionary.thefreedictionary.com/curtilage
Ed, you mean “dilation and curettage” — :
https://www.google.com/search?q=dilation+and+curettage&ie=utf-8&oe=utf-8
GOK,
You are entirely correct. I realized my error after I turned off my computer and was going to correct it when I next returned to my computer, but your posting handles it concisely. Words do matter.
Matt,
Times change, weapons change, but human nature does not. There will always be perons who want to lord over the rest.
You wrote: “In the United States the ultimate authority is not the people. Madison lived in another time and another world. The people pretty much lost that right when a group of them decided they wanted to leave the union. From that time on the ultimate authority in the country resided in the Supreme Court which decides the law. The people can only decide who will represent them; how they can act is governed by those they elect who pass and enforce the laws and as interpreted by the Supreme Court.”
Your understanding of history is amusing, and chilling at the same time. You get the facts wrong (the people of the United States did not decide to leave the union, though the people of several southern states did) and the Civil War was not decided by the Supreme Court ( though the Supreme Court might be said to have lighted the fire with Dred Scott, and after the war the court stubbornly refused to uphold the rights of the freedmen), it was decided by a war -lots of men fighting and dying. But your claim that the ultimate authority is not in the people is yet another reason for the people to never allow themselves to be disarmed.
Mike:
Are you suggesting the citizens of the 11 Confederate states were not United States Citizens before they rebelled? If so, check your history.
One of the causes of the Civil War was said to be the Dred Scott decision under Chief Justice Taney.
Where did I say the Civil War was decided by the Supreme Court. Obviously the nine justices were not on the battlefield. Once the Union won the power went over to the Supreme Court. I did not say as the ultimate authority the Supreme Court did a good job. It caused the Jim Crow era with many of its decisions. But the unelected 9 does control the way our county functions: it can find legislation unconstitutional while Congress cannot find its decisions in error; it can command the executive to carry out its mandates while the executive has no power over it. The idea of three equal branches of government has not existed in the United States for many decades.
The people have no say in picking the Supreme Court judges who are the ultimate authority. If the Supreme Court ever thought that people bearing arms presented a threat to it then the law would be changed to give the government the right to take their arms from them.
As Strunk taught, make every word tell. Presumably, the words ‘militia’ and ‘well-regulated’ are telling. So, what is the meaning of ‘militia’ and ‘well-regulated’ as understood by eighteenth-century Americans?
Here is a helpful article on these questions: http://www.lectlaw.com/files/gun01.htm
Here is an excerpt:
“George Mason, one of the Virginians who refused to sign the Constitution because it lacked a Bill of Rights, said: “Who are the Militia? They consist now of the whole people.” Likewise, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a “militia, when properly formed, [as] in fact the people themselves.” The list goes on and on.
By contrast, nowhere is to be found a contemporaneous definition of the militia, by any of the Framers, as anything other than the “whole body of the people.” Indeed, as one commentator said, the notion that the Framers intended the Second Amendment to protect the “collective” right of the states to maintain militias rather than the rights of individuals to keep and bear arms, “remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.
Furthermore, returning to the text of the Second Amendment itself, the right to keep and bear arms is expressly retained by “the people,” not the states. Recently the U.S. Supreme Court confirmed this view, finding that the right to keep and bear arms was an individual right held by the “people,” — a “term of art employed in select parts of the Constitution,” specifically the Preamble and the First, Second, Fourth, Ninth and Tenth Amendments. Thus, the term “well regulated” ought to be considered in the context of the noun it modifies, the people themselves, the militia(s).”
The above analysis leads us finally to the term “well regulated.” What did these two words mean at the time of ratification? Were they commonly used to refer to a governmental bureaucracy as we know it today, with countless rules and regulations and inspectors, or something quite different? We begin this analysis by examining how the term “regulate” was used elsewhere in the Constitution. In every other instance where the term “regulate” is used, or regulations are referred to, the Constitution specifies who is to do the regulating and what is being “regulated.” However, in the Second Amendment, the Framers chose only to use the term “well regulated” to describe a militia and chose not to define who or what would regulate it.
It is also important to note that the Framers’ chose to use the indefinite article “a” to refer to the militia, rather than the definite article “the.” This choice suggests that the Framers were not referring to any particular well regulated militia but, instead, only to the concept that well regulated militias, made up of citizens bearing arms, were necessary to secure a free State. Thus, the Framers chose not to explicitly define who, or what, would regulate the militias, nor what such regulation would consist of, nor how the regulation was to be accomplished.
This comparison of the Framers’ use of the term “well regulated” in the Second Amendment, and the words “regulate” and “regulation” elsewhere in the Constitution, clarifies the meaning of that term in reference to its object, namely, the Militia. There is no doubt the Framers understood that the term “militia” had multiple meanings. First, the Framers understood all of the people to be part of the unorganized militia. The unorganized militia members, “the people,” had the right to keep and bear arms. They could, individually, or in concert, “well regulate” themselves; that is, they could train to shoot accurately and to learn the basics of military tactics.
This interpretation is in keeping with English usage of the time, which included within the meaning of the verb “regulate” the concept of self- regulation or self-control (as it does still to this day). The concept that the people retained the right to self-regulate their local militia groups (or regulate themselves as individual militia members) is entirely consistent with the Framers’ use of the indefinite article “a” in the phrase “A well regulated Militia.”
This concept of the people’s self-regulation, that is, non-governmental regulation, is also in keeping with the limited grant of power to Congress “for calling forth” the militia for only certain, limited purposes, to “provide for” the militia only certain limited control and equipment, and the limited grant of power to the President regarding the militia, who only serves as Commander in Chief of that portion of the militia called into the actual service of the nation.
The “well regula[tion]” of the militia set forth in the Second Amendment was apart from that control over the militia exercised by Congress and the President, which extended only to that part of the militia called into actual service of the Union. Thus, “well regula[tion]” referred to something else. Since the fundamental purpose of the militia was to serve as a check upon a standing army, it would seem the words “well regulated” referred to the necessity that the armed citizens making up the militia(s) have the level of equipment and training necessary to be an effective and formidable check upon the national government’s standing army.”
Jon:
You still don’t explain why the writers of the Bill of Rights did not just say what they meant – there was no need for the first few words if the intent was to make the right to carry arms unfettered.
Matt,
See tadzio.
But also, as I write below: The introductory clause of the second amendment guarantees the right to bear arms as a condition of the additional guarantee of the right to organize into militias when a free state is threatened by tyranny. You might say there are two rights contained within the second amendment: the right to bear arms, and the right to organize into militias. Both rights are to be held by the people. The right to bear arms is what makes an well-regulated, i.e. organized, militia effective in the fight against any threat of tyranny.
Jon:
Theory is one thing but reality is enough. No organization of citizens armed with assault rifles will ever match up against a standing army.
Aside from that, how long do you think a group of citizens who arm themselves into what could be called a militia would be tolerated by the government?
Our freedom is not guaranteed by the Second Amendment – it is by fellow Americans who are part of our standing armies and our police forces who stand as a wall against tyranny. If a group of Americans decided that the Government was destructive of our rights they would have to come up against that wall. The American Revolution could never happen again.
You wrote “Our freedom is not guaranteed by the Second Amendment – it is by fellow Americans who are part of our standing armies and our police forces who stand as a wall against tyranny. ”
Care to explain to me as to where in the U.S. Constitution the concept of “police force” is detailed? Law enforcement in 1787 or 1791 was performed by constables, sheriffs and to assist them, every citizen.
http://www.constitution.org/lrev/roots/cops.htm
http://blog.constitutioncenter.org/2015/09/on-this-day-congress-officially-creates-the-u-s-army/
Thank you. Your scholarship enthralls me.
Note that the Second Amendment pertains to the people, not the Federal government. The conceived militias are intended to exist outside of the Federal government in order that the people can have the means to defend against tyrannical tendencies inherent in Authority. The state militias have long since been federalized. Any limitation possibly envisioned to state militias has thereby been rendered of no consequence and the right to form such resides, now as then, in the people. Any people’s militia would need arms to be effective. At this point of time people’s militias, which need arms, exist solely as a potentiality. The people should have unfettered access to arms in order to render the potential militias, which are lying dormant, effective when required.
By analogy the baby is a people’s militia. The bath water is the right to bear arms. If you throw out the bath water the baby goes with it. The Supreme Court has got it right.
Up North in The County, Aroostook, the right to bear arms is taken seriously and presents no obstacle to public order. In hunting season and beyond one can see males as young as ten walking down the road armed. Not a problem. There are, however parts of the country that have difficulties, mostly with illegally obtained guns. These problems are centered mostly in a minority community. The response of libtards is to constrain Liberty to quell their Racist fears.
The Fifty Shades of Racism that pervade urban America and the liberal ‘intelligentsia’ are of no concern to rural America which does not choose to have its liberties abrogated in order to provide a fool’s attempt to solve urban problems with nostrums of twisting words and demagogic promises of a crime free serenity. Draconian gun controls have not prevented murderous rampages in Paris or Brussels. They will not work on this side of the Pond either. Again, the Supreme Court has got it right.
Tadzio:
All of the bill of rights applies to the people’s rights and not the governments. You do not answer the question why the writers of the bill added that introductory language.
The introductory language was added to limit the powers of the federal government and to empower the people to bear arms AND to organize in militias. The introductory clause expands the rights of the people, it does not, as liberals would have it, limit those rights. The entire purpose of the Amendments known as the Bill of Rights is to secure Liberty for individuals, not to provide a shoehorn for centralized bureaucrats to squelch dissent and strangle freedoms. Your reading of the opening clause negates the clear meaning, settled in law, of the words that follow.
Only accountants feel the need to balance credits with debits. The purpose of the Bill of Rights is to accumulate, not offset, rights. More simply, the opening clause is a plus. not a minus, for Liberty.
tadzio,
Excellent posts.
Tadzio:
As I said the Bill of Rights limited the power of the government. There was no need for the first part of the Second Amendment since it could have easily been written without it. You talk about militias but don’t refer to “the security of a free state” which the militias were to be used for as they were in suppressing the Whiskey Rebellion and Shay’s Rebellion etc. Without the first part the Government had the right to call upon its citizens to defend it as we have seen with the draft over the years.
My reading of the first part gives the full meaning of the Second Amendment; your reading and that of the courts ignores the first part. The purpose of the Bill of Rights is not to accumulate rights – whatever that means – but is to reinforce the rights of people though important when confronting the state. ;The second part of the Second Amendment is quite clear. If you want to recognize it, as you do, you must recognize that it talks about the security of a free state which is the reason people can have arms. If, as we see, we no longer need the people to be armed for our state to be secure then they have no rights to the arms.
The dependent clause (“a well regulated militia, being necessary to the security of a free state”) provides a rationale for the non-infringement of the right of the people to keep and bear arms, but it does not qualify the subject (the right…) of the main clause, that is not the function of absolute construction.
Note that experts writing for both sides of the Heller case agreed that the prefatory language is written as absolute construction, so there is no controversy in that regard.
Why did the framers include the prefatory language? To give a rationale for the non-infringement of the right of the people to keep and bear arms, as that is the normal function of absolute construction. Had the framers wanted to qualify the right of the people to keep and bear arms they could have done so, but they did not.
Madison’s original proposal included three parts, the statement of the right of the people, a well known political maxim of that time that became the prefatory clause, and a conscientious objector provision. The CO provision was the only part that received attention during debates in Congress and it was eventually dropped. The two remaining parts were rewritten into the final form of the amendment.
The very first commentator, Tench Coxe, wrote in the Federal Gazette (1789) : “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”
Note that Coxe’s article tell us what was meant by the political maxim ” A well regulated militia is necessary to the security of a free state.” It is plainly not a restriction on the right of the people to keep and bear arms, but rather a rationale for confirming that right. Moreover Coxe does not use “bear arms” as relates to the second amendment as any sort of idiom, bent or otherwise, which ought to lay to rest another of the gun grabber arguments.
Mike:
Good comment. Absolute construction as I understand it means that it modifies or explains what it is connected to. You note both sides agree the first part is an absolute construction but as I suggested the majority of the court while noting it acted as if it did not exist. You suggest it is added to give a rationale but why did they not give a rationale to the other Amendments.
I agree the parts should be construed together. You note Tench Coxe’s comment who noted: “As civil rulers . . . may attempt to tyrannize, and as the militry forces . . . might pervert their power to the injury of their fellow citizens, the people . . . [have the right to bear arms.] You say the first clause is not a restriction but a rationale.
I can accept all that but none of it makes sense in the present day.Military forces are not “occassionaly raised” but they are a permanent factor and the type of arms possessed by them are totally different. If the first part expands on the right to keep arms but is no longer relevant in the present time then it goes without saying there is no right for the people to bear arms since they have no chance of ever overthrowing the government.
Matt,
The Heller majority did not act as though the prefatory clause did not exist. Instead the Heller majority treated the prefatory clause in the exact way that absolute construction is normally intended. They said the prefatory clause is a statement of purpose and the amendment should be read the same as: “Because a well-regulated militia is necessary to the security of a free state, the right of the people shall not be infringed.” The Heller dissenters were hell bent on treating the prefatory phrase as a restriction on the subject of the main clause (The right…), which is not how absolute construction functions.
Why did the framers not use similar format for other amendments to the federal Constitution? I do not know, but the various states’ Bill of Rights did use similar formats for freedom of the press and others. http://www2.law.ucla.edu/volokh/common.htm
You could have found the answers to your questions in the first few pages of the Heller opinion. https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
“If the intent was just the second part why was the first part written? Do you think it might have had some bearing on the words that followed? Our Supreme Court doesn’t since it just interprets the Second Amendment as if it only had the last part.”
Matt, are you suggesting that the Supreme Court — with an imperceptible, underlying influence of, let’s call it “pro-gun America” — chooses conveniently to ignore the “first part” of the Second Amendment (“2A,” as they say)?
If not, what else could explain their interpretation?
GOK:
Judges have certain philosophies and read the law in accordance with that. That is why we have five to four decisions in the Supreme Court based on the same precedent. They did not ignore the first part they just interpreted it in such a way that it had no effect on the second part. The question I posed was how can that be done when if it was the intent of the 2nd Amendment just to have the second part apply why did they put in the first part. They certainly knew how to write, as is shown by the other amendments, what rights the people possessed in a clear manner.
You know I have always said judges make the law. This time they made in using only half of the amendment because that suited their purpose. Tomorrow another court might discover there was another half and change the law.