# 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:** 8
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 18, 2008, 12:46am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/141 "2008-03-18T00:46:24Z")
It’s not a zombie, we were waiting to see what the Supremes say. Also, I was going to read those PDFs Hamlet linked for me, but Verizon had anoutage this weekend. I was down to 2400 baud. Okay. ABA’s amicus: Starts by howling about Stare Decisis. Not a good start, in my opinion. You should start off with some good arguments, and ‘The Law is The Law’ is damn weak, as I see it. Yes, it’s an important principle, but it’s a principle, in regards to protecting people, not to allow the State to ignore a matter, then rule by default. This Court isn’t against upsetting the applecart, I’ve noticed: see recent judgements on software patents. The _other_ courts can rely on Stare Decisis. The Supremes make decisions. Lot of Miller talk, covering pretty much all of the pro-Miller conversation. Nothing new there, no mention of the ‘there was no defense’ gorilla in the closet. Generally, they talk then about how gun control is legal. But DC’s statue effectively _outlaws_ possession. Then they discuss how the Circuit defined Handguns as Arms in a way different from Miller… cleverly not mentioning how handguns would be Arms under Miller, as well, or my dad was never issued a M1911A1. There’s an argument that the decision would entangle the Court in matters left to state and local courts. Yes, but this is DC, which is special in this instance. Evaluation of the ABA brief: Weak. Oddly so. And if I can see the holes, the Supremes can too. I’ll do the other briefs some other time, that was painful. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 18, 2008, 12:48am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/142 "2008-03-18T00:48:02Z")
[QUOTE=Polycarp] **Hamlet** ’s (well-reasoned) arguments seem to demonstrate that the only right of an individual to keep and bear arms is in connection with his mebership in an organized militia (the National Guard, the Naval Militia, or a state militia not incorporated into the Guard), and the statutory definition of an “unorganized militia” is irrelevant as not being “a well-organized militia.” [/quote] Which is exactly what I’ve spent way too much time here trying to explain. Yet this follows: > [@](#): > > I pass over **Elv1s** ’s arguments because it appears to me that he is setting forth the construction \*\*he gives \*\* the Second Amendment What part of “It’s the Supreme Court who confimed that that is the construction, and it doesn’t matter what anyone else, including me, thinks” did you overlook? :dubious: > [@](#): > > and maintaining that \*\*his \*\* construction is the only valid way in which to interpret it. Where the hell do you get that personalization from? > [@](#): > > With no offense to **Elv1s** intended, I’ve seen the futility, from arguments with Biblical literalists, of attempting to debate against that mindset. With no more offense intended to you than you just did to me, if you won’t bother to fucking read and understand other people’s posts, don’t dismiss their writers as “biblical literalists”. But before you do that, do go look up the difference between “mindset” and “law”, would you? No wonder this topic always bogs down, with that same lame old bullshit constantly being repeated. Sheesh. > [@](#): > > the Bill of Rights, as **Bricker** notes, otherwise guarantees **individual** rights, not corporate rights The Bill of Rights nowhere else explicitly states its own reasons for existence. Nowhere else does it \*have \* to. The framers must have known this one would be twisted and misinterpreted even with their guidance - what’s strange about that? And, to repeat once again, that’s what the status Supreme Court ruling _is_. > [@](#): > > However, one of the great tests of a legal concept is to apply it to an extreme, ridiculous situation. _Argumentum ad absurdam_ is a logical fallacy. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 18, 2008, 1:04am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/143 "2008-03-18T01:04:13Z")
Hm. Generally, I agree with the pro-gun petition, as does Cecil, in the grammar section. They counter-cite Hamlet’s notation of bearing arms only being for mass use, and further what I found in finding Madison himself using bear arms in the individual sense. … blah blah… Meh. I’ll read it again when I have time. I don’t see any _blatant_ gaping holes. The anti-gun one though, has one in the table of Contents. “The Licensing Requirement Does No More Than Properly Limit Those Who May Carry Handguns.” Part of the point here is that the license was limited so that few to none were given out, effectively barring it. I’m going to disagree with the ‘Second Amendment does not Apply’ bull. Geez, so if it doesn’t apply to the Feds, and it wasn’t incorporated for the States, where does it apply? blah blah handguns are lethal… yes, and despite this law, still lethal, except they’re illegal. Oooh, even more blatant Miller. “See, they chose to outlaw short barreled shotguns, despite the fact that they clearly had military use.” It’s not a bad brief. I find it a bit weaker than the pro-gun, but I’m biased. I think the real meat here _is_ individual versus collective right. Interestingly, the people who are trying to argue collective right are taking a stance opposite what their boss says. Eg, the feds should, theoretically, be supporting individual right. Thus, the oral argument may get a bit muddled. Mmm. I’m going to need a third party. Poly? Pro-Individual Right [http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf](http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf) Anti-Individual Right. [http://www.gurapossessky.com/news/parker/documents/PetitionersbriefinD.C.v.Heller.pdf](http://www.gurapossessky.com/news/parker/documents/PetitionersbriefinD.C.v.Heller.pdf) Could you read the first sections there, those specific bits, and give us what you think about it? ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 18, 2008, 1:11am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/144 "2008-03-18T01:11:24Z")
Elvis, go away, son, you ain’t helping, I say, you ain’t helping your side any. Shoo, boy! Actually, barring Elvis, I’m pretty impressed that we seem to have covered the non-specific-to-the-case issues pretty tightly here. The ‘reasonable restriction’ is a tricky one, and one I’m not really sure I’m capable of evaluating. That’s real judge work. But I think that DC’s extreme use of ‘reasonable’ where it winds up being defined as ‘nobody’ has been shot down a few times in the past. Like literacy tests for voting. Or even means tests, where it would limit voting to property owners. I’m not saying that all gun laws are illegal, but I do think that DC’s use of said laws does pretty much make this a pretty easy call, in this case. Anyone else see something interesting here? ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 18, 2008, 2:26am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/145 "2008-03-18T02:26:02Z")
(duplicate post) ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 18, 2008, 1:26pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/146 "2008-03-18T13:26:28Z")
[QUOTE=Polycarp] I hope I’m not revivifying a zombie here, since this thread was active as little as three days ago. **Hamlet** ’s (well-reasoned) arguments seem to demonstrate that the only right of an individual to keep and bear arms is in connection with his mebership in an organized militia (the National Guard, the Naval Militia, or a state militia not incorporated into the Guard), and the statutory definition of an “unorganized militia” is irrelevant as not being “a well-organized militia.” (I pass over **Elv1s** ’s arguments because it appears to me that he is setting forth the construction he gives the Second Amendment, and maintaining that his construction is the only valid way in which to interpret it. With no offense to **Elv1s** intended, I’ve seen the futility, from arguments with Biblical literalists, of attempting to debate against that mindset.) But I confess to being uncomfortable with that view. Much as I see valid reason for some sensible gun control, the Bill of Rights, as **Bricker** notes, otherwise guarantees **individual** rights, not corporate rights – the Tenth Amendment, at its end, to one side. It seems more than odd to me that in the middle of recitations of individual rights, the First Congress would guarantee a State or corporate right. My own construction of the absolute initial subordinate clause would be, “Since the states and country need a well-organized, well-trained militia composed of people who have learned to shoot and who can provide their own arms if needed…” I realize this is very much subject to debate. [/quote] It is, to me at least, a bit … off … to say that you find it odd that the Second Amendment was different than the rest of the Bill of Rights in granting a collective right, when the Second Amendment is, in fact, different than all the other Amendments. It is the only one that has a prefatory phrase. Now, because it is so different, and the rules of Constitutional interpretation assume words included have meanings, I have a problem just ignoring that phrase. To me, the Second Amendment protects an individual’s right to keep and bear arms in support of State militia’s only. I fully admit, it is an interesting Amendment to interpret, and one that I’m not sure there will ever be agreement on. What it boils down to with me is that I think the Second Amendment protects an individual right, but does so with a specific purpose. Since the Second Amendment clearly states the purpose for the right, that the right is limited to that purpose, for the preservation of the militia. I believe that the right to keep and bear arms for self defense is not one protected by the Second Amendment. Personally, I think the right to keep and bear arms for self defense is a Constitutionally protected right (just like other unenumerated rights), but you won’t find many on the right who are willing to make that argument. (As a side note, I will point out, once again, how important it is how courts and people define the rights at issue. I find it amusing that so many who would limit the “right to marry” to only those who have traditionally enjoyed that right are all over defining the right to keep and bear arms as a right to keep and bear arms for whatever reason they like. But that is a side issue that would require an entirely new thread). > [@Polycarp](#): > > \ > > Somehow I find the idea that such a law could be constitutional to be as absurd as the law itself. It is how you define the right. An individual right to keep and bear arms in self defense is a different right than an individual right to keep and bear arms in service of the State militia. And it is the latter which is protected by the clear language of the Second Amendment. But, it is also pretty clear to me, that the Second Amendment references (but does not protect) an individual’s right to keep and bear arms in self defense. In that way, it is akin to the 9th Amendment, which also recognizes there are unenumerated rights that should be protected from governmental interference. The right to keep and bear arms in self defense is one such right. Sorry if I’m rambling, but my opinion is not truly fully formed yet. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 18, 2008, 1:36pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/147 "2008-03-18T13:36:38Z")
[QUOTE=Steve MB] In other words, they are capable of correctly parsing a statement according to the rules of the English language. One hopes that this is a skill also found among the justices of the Supreme Court. [/QUOTE] My words spoke very well for themselves. They didn’t need you to misrepresent them with your “in other words”. If you had trouble understanding them, just ask, I’ll take the time to explain them to you. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 18, 2008, 1:44pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/148 "2008-03-18T13:44:58Z")
And, because I find it interesting, I’ll point out that the line for the public to sit in on the oral argument in Heller started roughly at 11:00 p.m. on Sunday night. It’s fascinating to me to see such interest in our judicial system. And kinda scary… ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [March 18, 2008, 5:49pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/149 "2008-03-18T17:49:46Z")
Update on the court hearing - it sounds like the Pro-2nd folks might have an edge here… > [@](#): > > NEWS ALERT > from The Wall Street Journal > > March 18, 2008 > > The Supreme Court heard arguments about the meaning of the Second Amendment and the District of Columbia’s ban on handguns. A majority of justices appears to support the view that the amendment protects an individual’s right to own guns, rather than linking the right only to service in a state militia. But it is less clear what that means for the District’s 32-year-old ban on handguns, perhaps the strictest gun control law in the nation. The case is likely to produce the most important firearms ruling in generations. A ruling is expected by summer. > > For more information, see: [http://online.wsj.com/article/SB120584308977444987.html?mod=djemalertNEWS](http://online.wsj.com/article/SB120584308977444987.html?mod=djemalertNEWS) ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 18, 2008, 8:05pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/150 "2008-03-18T20:05:41Z")
MMm. USA Today, of all people, had a sampling of various opinions. [http://blogs.usatoday.com/ondeadline/2008/03/supreme-court-w.html](http://blogs.usatoday.com/ondeadline/2008/03/supreme-court-w.html) Shows Reuters et al. SCOBlog, AP, and so on. Pretty clear the Supremes seem to favor some individual right, from just about every analysis. ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [March 18, 2008, 9:00pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/151 "2008-03-18T21:00:22Z")
Of all people, Kennedy and Souter seem inclined to go toward the individual rights opinion. From [SCOTUSBlog](http://www.scotusblog.com/wp/): > [@](#): > > In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically. > > With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates. Um, wow. I thought it was going to be close, maybe even 5-4. This looks like a slam dunk. It sounds like the only opposition will be Ginsburg and Stevens. It’s too early to declare victory, far too early, but I will say this: Hey, **Elvis** , it’s looking like it’s time to come up with a new argument. _Miller_ appears to be a dead issue, and it appears that the Supremes will not be seeing things your way. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [March 18, 2008, 9:59pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/152 "2008-03-18T21:59:21Z")
[QUOTE=ElvisL1ves] What part of “It’s the Supreme Court who confimed that that is the construction, and it doesn’t matter what anyone else, including me, thinks” did you overlook? [/QUOTE] I need not ask “What part of the multiple proofs that the Supreme Court did no such thing did you overlook?” The answer is clearly “Every bit of every one of them.” ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [March 18, 2008, 10:03pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/153 "2008-03-18T22:03:07Z")
[QUOTE=Hamlet] It is, to me at least, a bit … off … to say that you find it odd that the Second Amendment was different than the rest of the Bill of Rights in granting a collective right, when the Second Amendment is, in fact, different than all the other Amendments. It is the only one that has a prefatory phrase. Now, because it is so different, and the rules of Constitutional interpretation assume words included have meanings, I have a problem just ignoring that phrase. To me, the Second Amendment protects an individual’s right to keep and bear arms in support of State militia’s only. [/QUOTE] To the Supreme Court (per _Miller_), the Second Amendment protects the right to keep and bear arms, and has a prefatory phrase that provides guidance as to the definition of the term “arms”. ---
**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 18, 2008, 11:38pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/154 "2008-03-18T23:38:08Z")
[QUOTE=Steve MB] To the Supreme Court (per _Miller_), the Second Amendment protects the right to keep and bear arms, and has a prefatory phrase that provides guidance as to the definition of the term “arms”. [/QUOTE] Which makes sense to me, anyway, since it would just render the entire Bill of Rights self-contradictory and largely irrelevant if that prefatory phrase completely redefined “the people.” ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [March 18, 2008, 11:52pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/155 "2008-03-18T23:52:32Z")
I’d suggest that folks here download and read the oral arguments today. They’re pretty interesting, and I have to say it’s hard to see anything less than a 5-4 decision affirming an individual right, affirming that that right can be restricted, and throwing out the DC law as being too restrictive. Kennedy’s comments are especially telling at times. Whoops - here’s the link: [http://www.supremecourtus.gov/oral\_arguments/argument\_transcripts/07-290.pdf](http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf) ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 19, 2008, 2:53pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/156 "2008-03-19T14:53:38Z")
Thanks for that link, Una. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 19, 2008, 4:56pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/157 "2008-03-19T16:56:58Z")
For a slightly more amusing view of the oral arguments, [click here](http://www.slate.com/id/2186853). ---
**Author:** ![UncleBeer](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UncleBeer](https://boards.straightdope.com/u/UncleBeer)\ **Post date:** [March 19, 2008, 7:15pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/158 "2008-03-19T19:15:19Z")
Hate to come into this so late, but I believe there’s a basic misunderstanding of the meaning the descriptor “well-regulated” which prefixes “militia” in the second amendment. There’s been a bit of discussion regarding the contemporary meaning of the term “arms,” but I didn’t see anything like that for “well-regulated,” and it’s crucial to have a proper understanding of that term. “Well-regulated,” at the time the Bill of Rights was drafted **did not** have the meaning most commonly associated with it today - that something is under the strict control or supervision of a governing, or _regulatory_, body - most often a government body. That seems to be the meaning that most people here - particularly the collective rights faction - are assuming the authors of the second amendment labored under. That may in fact be correct usage today, but not in the late 18th century. “Well-regulated,” in the late 18th century, was more commonly understood to mean: adroit, adept, practiced, or skillful; something that functioned smoothly and efficiently. Thus, a “well regulated militia,” regardless of who was in the militia, or how it was supervised, was intended to be composed of persons already efficient in the use of arms. Private ownership of arms can then be seen in the proper light; individuals must be permitted to own them in order to be proficient in their use. This was extremely important when the country was young, not so prosperous, and had a great aversion to a standing army. It meant that a defensive force, _the militia,_ could be assembled and deployed from the citizenry with little training or delay, and that they could be expected to be proficent in the use of arms. The members of the militia would already be well-practiced, or at least familiar, with their own arms obviating the cost and delay of training. Quite simply, the right of the people, _individual citizens_, to keep and bear arms was deemed by the founding fathers as the most efficacious means of assembling a “well-regulated militia” when there was no standing army. E-sabbath posted a bit from the Virginia state constitution that explains it quite well, particularly so because the author was George Mason. It definitely bears repeating here: > [@](#): > > Virginia Constitution Article I, Section 13 > > That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. George Mason, an anti-federalist, refused to sign the constitution because he did not believe it safe-guarded the rights of the people sufficiently. He voiced the criticisms which ultimately spawned the Bill of Rights. Thus, the purpose of the Bill of Rights was to forge a compromise between the federalists and the anti-federalists in order that the constitution could be ratified. The Bill of Rights accomplished that by guaranteeing the right of the citizens and limiting the powers of the federal government. It would therefore be logically inconsistent to read the second amendment as giving the federal government control over the militia - by _regulating_ it. But George Mason’s anti-federalists were on the losing side. So, what does the federalist side have to say? Let’s look at Federalist #29 authored by Alexander Hamilton: > [@](#): > > Federalist #29 > > The project of disciplining all the militia of the United States is as futile as it would be injurious. A tolerable expertness in military movements is a business that requires time and practice … to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people … > > And also > > Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped." Note again Hamilton’s use of “well-regulated.” In its context, it can mean nothing except well-practiced. The rights of **individuals** to keep and bear arms is a very rare issue on which the federalists and anti-federalists held a clear consensus of opinion. And all of this demonstrates the only logically consistent interpretation of the history and facts surrounding the Bill of Rights - that it was meant to guarantee the rights of individual citizens. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [March 21, 2008, 1:08am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/159 "2008-03-21T01:08:19Z")
I was reading selected quotes from the Heller oral arguments, and I honestly thought Gura was the attorney for DC. The Justices seemed to be making good arguments for second amendment rights while, in some cases, Gura attempted to shoot them down. :smack: I hope the friends of the court briefs were good. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 21, 2008, 1:46am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/160 "2008-03-21T01:46:35Z")
[QUOTE=UncleBeer] Hate to come into this so late, but I believe there’s a basic misunderstanding of the meaning the descriptor “well-regulated” which prefixes “militia” in the second amendment. There’s been a bit of discussion regarding the contemporary meaning of the term “arms,” but I didn’t see anything like that for “well-regulated,” and it’s crucial to have a proper understanding of that term. [/quote] Personally, I think it is much more crucial to have a proper understanding of the term "militia’. > [@UncleBeer](#): > > “Well-regulated,” at the time the Bill of Rights was drafted **did not** have the meaning most commonly associated with it today - that something is under the strict control or supervision of a governing, or _regulatory_, body - most often a government body. That seems to be the meaning that most people here - particularly the collective rights faction - are assuming the authors of the second amendment labored under. That may in fact be correct usage today, but not in the late 18th century. “Well-regulated,” in the late 18th century, was more commonly understood to mean: adroit, adept, practiced, or skillful; something that functioned smoothly and efficiently. Thus, a “well regulated militia,” regardless of who was in the militia, or how it was supervised, was intended to be composed of persons already efficient in the use of arms. I’d be interested in any cite you could produce, not that I doubt you. But I think the term “well regulated” clearly has, as part of the definition, a concrete organization with heirarchical command structure. And “well regulated militia” is NOT synonymous with “Armed Populace”. > [@UncleBeer](#): > > Private ownership of arms can then be seen in the proper light; individuals must be permitted to own them in order to be proficient in their use. This was extremely important when the country was young, not so prosperous, and had a great aversion to a standing army. It meant that a defensive force, _the militia,_ could be assembled and deployed from the citizenry with little training or delay, and that they could be expected to be proficent in the use of arms. But the Second Amendment doesn’t use the term “well armed” or “well trained” citizenry. It does say “well regulated militia.” > [@UncleBeer](#): > > The members of the militia would already be well-practiced, or at least familiar, with their own arms obviating the cost and delay of training. Quite simply, the right of the people, _individual citizens_, to keep and bear arms was deemed by the founding fathers as the most efficacious means of assembling a “well-regulated militia” when there was no standing army. See, this is where I think your argument stretches the limits of credibility. If you want to take the (apparent) viewpoint that the prefatory clause about the “well regulated militia” means nothing and in no way limits the second clause, fine. I think you’re wrong, but it is understandable. But changing the definition of “well regulated militia” to mean “armed populace” is a stretch. > [@UncleBeer](#): > > E-sabbath posted a bit from the Virginia state constitution that explains it quite well, particularly so because the author was George Mason. It definitely bears repeating here: > > George Mason, an anti-federalist, refused to sign the constitution because he did not believe it safe-guarded the rights of the people sufficiently. He voiced the criticisms which ultimately spawned the Bill of Rights. Thus, the purpose of the Bill of Rights was to forge a compromise between the federalists and the anti-federalists in order that the constitution could be ratified. The Bill of Rights accomplished that by guaranteeing the right of the citizens and limiting the powers of the federal government. It would therefore be logically inconsistent to read the second amendment as giving the federal government control over the militia - by _regulating_ it. Dickering over WHO should be regulating the State militias in no way shape or form changes the meaning of what a militia or a well regulated militia is. And, I’ll point out, that Article 1 of the Constitution includes: "The Congress shall have power . . . To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress" Clearly, the Constitution envisioned that Congress would have control over the militia. I’m not sure what your point is in light of Article 1. > [@UncleBeer](#): > > But George Mason’s anti-federalists were on the losing side. So, what does the federalist side have to say? Let’s look at Federalist #29 authored by Alexander Hamilton: > > Note again Hamilton’s use of “well-regulated.” In its context, it can mean nothing except well-practiced. Here’s more from Federalist #29 “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.” From that quote, it seems pretty clear that “well regulated” means “regulated”, with Hamilton’s point being over “who” regulates. > [@UncleBeer](#): > > The rights of **individuals** to keep and bear arms is a very rare issue on which the federalists and anti-federalists held a clear consensus of opinion. I think, although it’s a bit of an overstatement to call it a “clear consensus”, many founders did, in fact, agree there existed a right to keep and bear arms. The issue is whether that’s protected by the language of the Second Amendment. > [@UncleBeer](#): > > And all of this demonstrates the only logically consistent interpretation of the history and facts surrounding the Bill of Rights - that it was meant to guarantee the rights of individual citizens. You left off “for the purposes of serving the militia” after “the rights of individual citizens”. You simply cannot define “well regulated militia” in the Second Amendment as “armed populace”. Don’t misunderstand me. I do think there is an individual right to keep and bear arms in self defense. It’s just not enshrined in the Second Amendment. The right that the Second Amendment protects is the right to keep and bear arms in support of the militia. 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