# Doesn't the 2nd Amendment technically forbid ANY federal gun laws? **URL:** \ **Category:** Great Debates\ **Created:** [March 7, 2008, 2:09am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402 "2008-03-07T02:09:26Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 7, 2008, 5:06pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/21 "2008-03-07T17:06:26Z")
[QUOTE=ElvisL1ves] The right is defined only for “a well-regulated militia”, i.e. today’s National Guard. The amendment is silent regarding other contexts. [/QUOTE] This is not necessarily correct. And, I’ll note, that Professor Tribe decided it is not correct recently, and if Professor Tribe sees it that way, that’s pretty telling. :eek: ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 7, 2008, 5:12pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/22 "2008-03-07T17:12:36Z")
[QUOTE=Napier] \>The problem here is that you don’t understand what the word ‘arms’ means. It doesn’t mean ‘aircraft carriers’. It means ‘The personal weapons of a soldier’. “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.” I’m not at all sure I do understand, but, how can personal weapons secure a free state against abuses by governments? What else could be the point of the amendment? [/QUOTE] In the time the amendment was adopted, the “government” had access to weapons more advanced than the “arms” that an individual possessed. Cannon, mortar, etc., for example. They weren’t included in what you and I could possess without government interference then; a tank would be out of bounds now. The militia existed for one main reason: to be able to defend the people from external attack. When tyrants took control of government, they did the double duty of resisting the forces of tyranny. They did not need the most destructive force weapons available at that time to do so. Nor would they now. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [March 7, 2008, 5:16pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/23 "2008-03-07T17:16:37Z")
[QUOTE=ElvisL1ves] The right is defined only for “a well-regulated militia”, i.e. today’s National Guard. [/QUOTE] [Incorrect.](http://www.law.cornell.edu/uscode/10/usc_sec_10_00000311----000-.html) From United States Code 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. One need not be in the national guard to be in the militia. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [March 7, 2008, 5:31pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/24 "2008-03-07T17:31:57Z")
[QUOTE=DSYoungEsq] In the time the amendment was adopted, the “government” had access to weapons more advanced than the “arms” that an individual possessed. Cannon, mortar, etc., for example. They weren’t included in what you and I could possess without government interference then; a tank would be out of bounds now. The militia existed for one main reason: to be able to defend the people from external attack. When tyrants took control of government, they did the double duty of resisting the forces of tyranny. They did not need the most destructive force weapons available at that time to do so. Nor would they now. [/QUOTE] Not sure I buy that. Consider the Minutemen (a subset of the “militia” prior to the Revolution). Yes, they existed to ward off Indian attacks or the French, earlier on. But they also, especially leading up to the Revolution, took action to safeguard their autonomy against “their” government. > **[Minutemen](https://en.wikipedia.org/wiki/Minutemen)** > > Minutemen were members of the organized New England colonial militia companies trained in weaponry, tactics, and military strategies during the American Revolutionary War. They were known for being ready at a minute's notice, hence the name. Minutemen provided a highly mobile, rapidly deployed force that enabled the colonies to respond immediately to military threats. They were an evolution from the prior colonial rapid-response units. > The minutemen were among the first to fight in the Americ... > [@](#): > > Having learned from spies about arms stockpiled in Concord, Gage decided on April 19, 1775 to send a 700-man force on a march to Concord to seize arms, gunpowder, **cannons** , and provisions from the provincials. The march was a spoiling attack. Gage underestimated the Minutemen. (emphasis supplied). It may be true that in practice a lot of the colonials were limited to muskets and rifles and the other tools of skirmishing irregular warfare (but, when they could get, and handle, better weapons, they’d do so). But nothing in the historical context would lead me to believe that the Framers thought the “militia” should always and necessarily be at a qualitative disadvantage to the “regular” army. (This doesn’t mean I think civilians should necessarily be allowed to own bazookas or RPGs; no constitutional right is without some limitations or exceptions). ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 7, 2008, 5:34pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/25 "2008-03-07T17:34:40Z")
[QUOTE=pkbites] [Incorrect.](http://www.law.cornell.edu/uscode/10/usc_sec_10_00000311----000-.html) From United States Code 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. One need not be in the national guard to be in the militia. [/QUOTE] However, the above “unorganized militia” statute has never been used for any purpose and there is no case law construing it. [(Old thread.)](http://boards.straightdope.com/sdmb/showthread.php?t=243033) ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [March 7, 2008, 5:37pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/26 "2008-03-07T17:37:34Z")
[QUOTE=BrainGlutton] However, the above “unorganized militia” statute has never been used for any purpose and there is no case law construing it. [(Old thread.)](http://boards.straightdope.com/sdmb/showthread.php?t=243033) [/QUOTE] So what? Just because a law or right isn’t used doesn’t make it any less valid. Tell me the last time someone used the 3rd amendment. ---
**Author:** ![LonesomePolecat](https://avatars.discourse-cdn.com/v4/letter/l/a88e57/32.png) [@LonesomePolecat](https://boards.straightdope.com/u/LonesomePolecat)\ **Post date:** [March 7, 2008, 5:43pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/27 "2008-03-07T17:43:29Z")
[QUOTE=pkbites] [Incorrect.](http://www.law.cornell.edu/uscode/10/usc_sec_10_00000311----000-.html) From United States Code 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. One need not be in the national guard to be in the militia. [/QUOTE] Apparently, if you’re male, between the ages of 17 and 45, a citizen or in the process of becoming a citizen, and in any kind of decent physical shape, you’re a member of the militia. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [March 7, 2008, 6:01pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/28 "2008-03-07T18:01:45Z")
[QUOTE=Mosier] Read strictly, the 2nd amendment prevents the government from making any gun laws that infringe on the right to own weapons, but it doesn’t prevent the government from infringing on your right to BUY weapons? [/QUOTE] [QUOTE=LonesomePolecat] The right to own weapons necessarily implies the right to acquire weapons. [/QUOTE] I said _inter_-state, not _intra_-state. My observation/question is that the Constitiution may allow the Federal goverment to regulate commerce among states in arms, even if the 2nd Amendment prevents the Federal government from regulating arms \*within \* a state. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [March 7, 2008, 6:02pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/29 "2008-03-07T18:02:48Z")
[QUOTE=LonesomePolecat] Apparently, if you’re male, between the ages of 17 and 45, a citizen or in the process of becoming a citizen, and in any kind of decent physical shape, you’re a member of the militia. [/QUOTE] Cool, does that mean we can ban drunken old coots from going hunting? Limbaugh had a draft deferment because of a boil on his ass, maybe we can prevent him from owning a gun too. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 7, 2008, 6:04pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/30 "2008-03-07T18:04:54Z")
[QUOTE=pkbites] So what? Just because a law or right isn’t used doesn’t make it any less valid. [/QUOTE] The point is not that it’s invalid, but that nobody’s sure what it means or what it’s for. (Like the Ninth and Tenth Amendments.) It would be a real stretch to construe it as somehow conferring gun-ownership rights on those (and only those) persons falling within the definition of “unorganized militia.” In fact, it would be a stretch to ascribe it any relevance at all to interpretation of the Second Amendment. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [March 7, 2008, 8:03pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/31 "2008-03-07T20:03:49Z")
[QUOTE=BrainGlutton] The point is not that it’s invalid, but that nobody’s sure what it means or what it’s for. (Like the Ninth and Tenth Amendments.) It would be a real stretch to construe it as somehow conferring gun-ownership rights on those (and only those) persons falling within the definition of “unorganized militia.” In fact, it would be a stretch to ascribe it any relevance at all to interpretation of the Second Amendment. [/QUOTE] Considering that it addresses directly the definition of the Militia, the rather disputed clause of the Second Ad. (as **Elvis’** continuing obstinate misinterpretation demonstrates), I don’t think it’s much of a stretch at all to think that it has anything to do with the interpretation of the 2nd. Considering that “the militia” addressed in the 2nd is quite clearly defined in the documents and writings (such as The Federalist) of the FF as being comprised of “the people,” and that _Miller_ affirmed the FF’s intent that the militia was comprised of “ordinary citizens” bearing their own weapons, I don’t think **pk’s** citing USC 311 in support of his argument is in any way whatsoever “a stretch.” I now breathlessly await the logical legerdemain that will attempt to de-link “ordinary citizens” from “the people;” I’m certain that it will truly be an effort worthy of a _lawyer_. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 7, 2008, 8:28pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/32 "2008-03-07T20:28:51Z")
[QUOTE=ElvisL1ves] Tell the Supreme Court. They ruled the other way in _Miller_ already. You don’t have to like it, but it’s the law nonetheless. [/QUOTE] Haven’t we gone over this before? I believe I asked you repeatedly to point out where in _Miller_ the SCOTUS indicated a collective right, and you never answered me, unless you were trying to say that the protection of weapons “appropriate for use in an organized militia” _really_ means the protection of weapons possessed by a government-run militia, and no others. :dubious: But far from the guarantee of a right of “the people” in the Second Amendment, the federal government has no enumerated authority to regulate the possession of certain objects by private individuals within their own state. The repeated torturing of the “interstate commerce” clause opens the way for rights abuses of **all** types, and should be defended by no-one who is interested in maintaining their freedom. [QUOTE=Napier] I think it would be better if we weren’t allowed to own any of that, not even hunting rifles. [/QUOTE] So, you want a police state, then? When we abdicate all power and responsibility for our own individual safety and freedom, that is the only outcome. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 7, 2008, 8:31pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/33 "2008-03-07T20:31:15Z")
[QUOTE=Stealth Potato] The repeated torturing of the “interstate commerce” clause opens the way for rights abuses of **all** types, and should be defended by no-one who is interested in maintaining their freedom. [/QUOTE] Eh? Of what (non-gun-related) rights or freedoms do you think such a reading of the Commerce Clause has deprived you? Serious question. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 7, 2008, 8:33pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/34 "2008-03-07T20:33:40Z")
[QUOTE=BrainGlutton] Eh? Of what (non-gun-related) rights or freedoms do you think such a reading of the Commerce Clause has deprived you? Serious question. [/QUOTE] Well, I’m not personally inclined to recreational substance abuse, but I think federal laws against drug possession and use would fall under this category. Certainly it should be my right to light up a joint if I so choose. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 7, 2008, 8:41pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/35 "2008-03-07T20:41:07Z")
[QUOTE=Stealth Potato] Well, I’m not personally inclined to recreational substance abuse, but I think federal laws against drug possession and use would fall under this category. Certainly it should be my right to light up a joint if I so choose. [/QUOTE] But, **apart** from the enumerated-powers question, how is it any more legitimate for a state than for the federal government to interfere with that right? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 7, 2008, 8:47pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/36 "2008-03-07T20:47:20Z")
Leaving aside other arguments, I’d say that the 2nd Amendment only says the government can’t infringe the right to bear arms. That doesn’t prohibit it from regulating that right. So a law requiring gun owners to register their firearms would not prevent anyone from owning a firearm and would therefore not be an infringement. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 7, 2008, 9:37pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/37 "2008-03-07T21:37:52Z")
[QUOTE=BrainGlutton] But, **apart** from the enumerated-powers question, how is it any more legitimate for a state than for the federal government to interfere with that right? [/QUOTE] Well, I’m not sure how that relates to the present discussion, but I would say that it’s not. Just my opinion, though. The states do have more authority for regulation, subject to their own constitutions. [QUOTE=Little Nemo] Leaving aside other arguments, I’d say that the 2nd Amendment only says the government can’t infringe the right to bear arms. That doesn’t prohibit it from regulating that right. So a law requiring gun owners to register their firearms would not prevent anyone from owning a firearm and would therefore not be an infringement. [/QUOTE] So, would you feel that requiring all persons to register the books they read with the federal government would not be an abridgement of the freedom of speech? If not, Congress would not be prohibited from passing such a law under the First Amendment! But the federal government is not granted authority by the Constitution to violate, abridge, or infringe the rights enumerated in the first and second amendments anyway. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [March 7, 2008, 10:05pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/38 "2008-03-07T22:05:05Z")
[QUOTE=Stealth Potato] So, would you feel that requiring all persons to register the books they read with the federal government would not be an abridgement of the freedom of speech? If not, Congress would not be prohibited from passing such a law under the First Amendment! [/QUOTE] The govt already requires a license for radio and TV broadcasters. ---
**Author:** ![Napier](https://avatars.discourse-cdn.com/v4/letter/n/ce73a5/32.png) [@Napier](https://boards.straightdope.com/u/Napier)\ **Post date:** [March 7, 2008, 10:36pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/39 "2008-03-07T22:36:14Z")
\>So, you want a police state, then? When we abdicate all power and responsibility for our own individual safety and freedom, that is the only outcome. I don’t want a police state. But not owning guns is not the same thing as abdicating all power and responsibility for our individual safety and freedom. If you think you can maintain your safety and freedom with guns, in a situation where the federal government doesn’t want you to have them, it’d be pretty entertaining watching you hold them off. Our government has dropped atom bombs on populated cities. Twice. What in the world would you do with a hunting rifle that you think could thwart that kind of power? No, I think the relationship between the citizen and the state ought to regulate itself through elections and free speech. Things could go wrong with that, certainly, and to some degree keep doing so. But a silly little handgun isn’t going to matter. Now, there is one thing private ownership of guns does accomplish. A great many deaths result from our ready access to firearms. How many people die because a jealous rage or a drunken fight escalates with the introduction of guns? How many children shoot themselves with somebody’s poorly secured hobby? How many people die in the street because they’re unlucky enough to get caught in gang crossfire? ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 7, 2008, 11:10pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/40 "2008-03-07T23:10:33Z")
[QUOTE=Napier] If you think you can maintain your safety and freedom with guns, in a situation where the federal government doesn’t want you to have them, it’d be pretty entertaining watching you hold them off. Our government has dropped atom bombs on populated cities. Twice. What in the world would you do with a hunting rifle that you think could thwart that kind of power? [/quote] So, if fighting for liberty is futile, we should simply lay down and accept the yoke of tyranny when it comes? I’m not sure what else you could be saying, unless you’re implying that you would rather face off against tanks and helicopters with a baseball bat than with a rifle. To preserve liberty, it is sufficient that the people be determined, independent, and ungovernable when their government asserts authorities it was not given. An armed populace is instrumental in securing this goal. And I’m not talking about hunting rifles, either - why use hunting rifles when we can use semiautomatic .50-caliber rifles with armor-piercing ammunition? > [@](#): > > No, I think the relationship between the citizen and the state ought to regulate itself through elections and free speech. Things could go wrong with that, certainly, and to some degree keep doing so. Things can and do go wrong. Things like the increasing intrusion into private life by the federal government, a rogue administration’s policies of fear-mongering, domestic spying and indefinite incarceration, and the increasing militarization of our nation’s police forces to pursue such false causes as the “war on drugs” and the “war on terror”. And you propose that these problems can possibly be addressed by giving that same abusive government an unfettered monopoly on armed force? :dubious: > [@](#): > > Now, there is one thing private ownership of guns does accomplish. A great many deaths result from our ready access to firearms. How many people die because a jealous rage or a drunken fight escalates with the introduction of guns? How many children shoot themselves with somebody’s poorly secured hobby? How many people die in the street because they’re unlucky enough to get caught in gang crossfire? And _why_ is any of this relevant? How many children drown in family swimming pools? How many husbands and fathers injure or kill loved ones in drunken anger? How many people die of alcohol poisoning or alcohol-related accidents? How many die violently due to simple human error on our nation’s roadways? Clearly private ownership of knives, private consumption of alcohol, and private ownership of automobiles are all detrimental to our safety and should be done away with. That is why it’s a founding principle of our nation that every individual’s right to act responsibly can and should be be dismantled in order to save society from those who are irresponsible! [Previous page](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402.md?page=1) [Next page](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402.md?page=3)