# Founding Fathers influencing today's politics **URL:** \ **Category:** Great Debates\ **Created:** [August 28, 2019, 6:48am UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345 "2019-08-28T06:48:21Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [September 6, 2019, 2:30pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/221 "2019-09-06T14:30:32Z")
> [@Abatis](#): > > The word’s appearance in the declaratory clause does not mean that it has any legal weight WRT militia, that it directs or controls or mandates any structure or action or condition to exist. > > The “full execution” of militia powers is only to be found in the body of the Constitution; the 2nd Amendment has noting to offer and is ignored. There are no latent, undefined powers to be found in the 2nd Amendment that would allow it to be interpreted the way you do. Your position is a complete perversion that has no support in the philosophical foundation, historical record or legal precedent of this Republic. > > While the 2nd Amendment has no legal action WRT militia, it was mentioned _ **one** _ time in those militia cases, in Justice Story’s dissent in _Houston v. Moore_. I guess he thought should at least look at it to see if it said anything about militia issues, but he discovered: > > [INDENT]“The [Second] Amendment to the Constitution, declaring that “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,” may not, perhaps, be thought to have any important bearing.” > [/INDENT] > > If SCOTUS long ago decided the 2nd Amendment does not have _any_ militia implications, no connections or any latent influence on the organized militia and really has nothing to say on the subject, why can’t you accept that? More importantly, how do you justify claiming the 2nd Amendment has this influence, especially imparting militia conditions and qualifications on the people’s right to arms? Except that lots of people who argue for gun rights, some of them in this thread, use the militia argument to justify their position. But never mind all that. You concede that this is a wrong position to take on RKBA. I’m fine with that and glad to be able to finally put it to rest. Can we then explore your position that RKBA is a “natural right”? My understanding of natural rights in the context of the Constitution is [as follows](https://www.crf-usa.org/foundations-of-our-constitution/natural-rights.html): > [@](#): > > The members of the Continental Congress made only two minor changes in the opening paragraphs of Jefferson’s draft declaration. In these two paragraphs, Jefferson developed some key ideas: “all men are created equal,” “inalienable rights,” “life, liberty, and the pursuit of happiness.” It goes on at length, but does not mention anything about guns as a natural or unalienable right. Now, the Constitution mentions RKBA explicitly. But again, in the context of a well-regulated militia. So I’m trying to understand how you get from guns being an unalienable right while hand waving away the entire context in which they are explicitly mentioned. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [September 6, 2019, 3:54pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/222 "2019-09-06T15:54:50Z")
> [@QuickSilver](#): > > Can we then explore your position that RKBA is a “natural right”? My understanding of natural rights in the context of the Constitution is [as follows](https://www.crf-usa.org/foundations-of-our-constitution/natural-rights.html): > > It goes on at length, but does not mention anything about guns as a natural or unalienable right. Now, the Constitution mentions RKBA explicitly. But again, in the context of a well-regulated militia. So I’m trying to understand how you get from guns being an unalienable right while hand waving away the entire context in which they are explicitly mentioned. Maybe I am not following you. Your link talks about the Declaration of Independence. You can certainly use that as a way of understanding the Constitution, in fact, you probably should. But the DoI says that there are inalienable rights, that governments exist to secure those rights. So when they set up the Constitution, they were doing what the DoI said they should be doing - setting up a government to secure natural/inalienable rights for the citizens of the USA. In the 2A, they said “we have to have a militia, therefore we need to be clear that the government has to secure the right of the people to keep and bear arms”. If you want to understand the Constitution in the context of the Declaration of Independence, that’s the context, and that’s what they did. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 6, 2019, 3:57pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/223 "2019-09-06T15:57:13Z")
Then it should be easy to show where else, in what other great moral or religious codes or the world or in what great works of philosophy, the right to keep and bear arms can be found. But it just isn’t there, is it? ---
**Author:** ![Abatis](https://avatars.discourse-cdn.com/v4/letter/a/d78d45/32.png) [@Abatis](https://boards.straightdope.com/u/Abatis)\ **Post date:** [September 6, 2019, 4:03pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/224 "2019-09-06T16:03:17Z")
> [@ElvisL1ves](#): > > The thread topic is what the writers meant, and how it influences current policy. Well, they fucking \*told \*us what they meant, didn’t they? Yes they did but you choose to ignore that and take three words, pluck them out and “interpret” them in bias confirming isolation, divorced from the entirety of the framer’s explanations. > [@ElvisL1ves](#): > > Your claim was “it has never been inspected to inform or held to direct anything pertaining to militia.” Thanks for conceding your error. Thanks also for providing so many other refutations on your own. And you can not understand that the “object” of the 2nd Amendment, the _ **why** _ the pre-existing, fundamental, never surrendered any aspect of it, right to keep and bear arms is being secured from government interference, speaks to the types of weapons that are held completely immune from government’s sticky fingers. _Miller_ cites _Aymette v. State_, 2 Humphreys (Tenn.) 154, at 158,​ _ **directly** _ on this point, _Aymette_ gives us an overview of why the right to arms is secured, the types of arms that are irrevocably protected and some reasoning why some types of arms are _not_ immune from government regulation: [INDENT]"The object, then, for which the right of keeping and bearing arms is secured is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution . . . As the object for which the right to keep and bear arms is secured is of a general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."​[/INDENT] This is why the _Miller_ Court, having only heard the government’s arguments because no briefs were filed for Miller’s side and there was no appearance at oral arguments explaining any military usefulness for a sawed-off shotgun, said: [INDENT]"In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."​[/INDENT] The right is _not_ conditioned upon a citizen’s militia association, the right is protected in nearly absolute fashion for the types of arms that the citizens would use to “ **defend the public** ” – assuming the government is operating legitimately – and “ **to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution** ” – if the government ever begins overstepping its limits. Both of these actions have the people operating in concert (like the right to assemble) but the right is secured individually. If the government can decree conditions and qualifications on the right as you envision, to the point of saying the right can be restricted, how can the citizens “have these arms in their hands”? How are they “prepared in the best possible manner to repel any encroachments upon their rights by those in authority”? Sounds to me that what you envision for the right to arms is exactly the kind of “encroachments upon their rights by those in authority” the people should be wary of and be ready to repel. > [@ElvisL1ves](#): > > “A well-regulated militia …” Oh, what’s the use? :rolleyes: Please explain how _ **the militia** _ (not the people, a distinction you ignore) becomes “well regulated”? Well, the framers told us, you just refuse to read it, refuse to understand it and refuse to apply it to your consideration on the subject. After explaining what the obligation of having the militia actually be “well regulated” meant to the nation, the conclusion was that requiring the militia to be “well regulated” was unrealistic and "must be abandoned as mischievous or impracticable, because (paragraph break added): [INDENT]"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary 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 a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured."[/INDENT] Well, since Hamilton is telling everyone the absurdity for reading the actual militia clauses as demanding the militia be “well regulated”, do you see how stupid it is to argue the declaratory clause of the 2nd Amendment, which isn’t even a complete sentence, demands it? The final conclusion on this matter was summed up like this: [INDENT]“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.”[/INDENT] > [@ElvisL1ves](#): > > And the people who get to decide that are whom? Uhhhhh . . . “We the People”. Of course the framers assumed that “We the People” would forever hold the “self-evident truths” as inviolate principles. Now we have people like you energetically arguing that those principles are not only _NOT_ true, but based in kooky BS that has no relevance to your current enlightened condition . . . All in a thread where you present yourself as debating the framers intent. If it wasn’t so absurd it would be hilarious. > [@ElvisL1ves](#): > > Since you insist on continuing your use of avoidance tactics: Please explain why you distinguish between “the nation” and “the people”. I recognize they can be synonymous in a general sense but I sometimes use “nation” as a moniker for and in the context of the “national authority / national government” and how the interests and desires of the “nation” may not be the same and may even work against the interests and concerns of the “people”. I can see how that might lead to some confusion, noting how it is used in [**Federalist 29**](https://avalon.law.yale.edu/18th_century/fed29.asp), (which I excerpt above) equating “the nation” with the militia; "_But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable_ . . . " I’ll try to avoid conflating these terms in the future and just use, “national government” where I mean _national government_. Thank you. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [September 6, 2019, 5:13pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/225 "2019-09-06T17:13:37Z")
> [@Shodan](#): > > Maybe I am not following you. > > Your link talks about the Declaration of Independence. You can certainly use that as a way of understanding the Constitution, in fact, you probably should. But the DoI says that there are inalienable rights, that governments exist to secure those rights. So when they set up the Constitution, they were doing what the DoI said they should be doing - setting up a government to secure natural/inalienable rights for the citizens of the USA. > > In the 2A, they said “we have to have a militia, therefore we need to be clear that the government has to secure the right of the people to keep and bear arms”. > > If you want to understand the Constitution in the context of the Declaration of Independence, that’s the context, and that’s what they did. > > Regards, > Shodan So you disagree with **Abatis** position (and cites) that demonstrate the weakness of the armed “unorganized militia” argument? Very well. But you have yet to illustrate what makes guns an intrinsic ‘unalienable right’. The DoI doesn’t talk about it. Simply asserting “context” is not sufficient. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 6, 2019, 5:33pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/226 "2019-09-06T17:33:12Z")
> [@Abatis](#): > > The word’s appearance in the declaratory clause does not mean that it has any legal weight WRT militia, that it directs or controls or mandates any structure or action or condition to exist. > > No, _Miller_ doesn’t say that. _Miller_ didn’t say anything about the man and his militia status; that is a total misreading and misrepresentation. The _Miller_ decision was focused only on the type of gun and whether it had any military / common defense usefulness, having no evidence presented that a sawed-off shotgun did have such usefulness, the Court did not invalidate the NFA’s restrictions on the possession and use of that arm. It didn’t really uphold them, the Court sent the case back down, but, Miller being dead, no more legal action took place… > > . Not to mention, Miller being dead, there was no defense. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [September 6, 2019, 5:34pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/227 "2019-09-06T17:34:33Z")
I got better! ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 6, 2019, 5:37pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/228 "2019-09-06T17:37:54Z")
> [@ElvisL1ves](#): > > … > > “A well-regulated militia …” Oh, what’s the use? :rolleyes: … > **[District of Columbia v. Heller, 554 U.S. 570 (2008)](https://supreme.justia.com/cases/federal/us/554/570/)** > > District of Columbia v. Heller: Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no... SYLLABUS OCTOBER TERM, 2007 DISTRICT OF COLUMBIA V. HELLER Held: \* 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53. Exactly, what’s the use? It is very clear here that “The Second Amendment protects an individual right to possess a firearm **unconnected with service in a militia,** and to use that arm for traditionally lawful purposes, such as self-defense within the home.” bolding mine. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 6, 2019, 5:39pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/229 "2019-09-06T17:39:23Z")
> [@Miller](#): > > I got better! You don’t look like a newt. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [September 6, 2019, 5:41pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/230 "2019-09-06T17:41:19Z")
> [@Miller](#): > > I got better! You’re not fooling anyone, you know. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 6, 2019, 5:42pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/231 "2019-09-06T17:42:45Z")
> [@ElvisL1ves](#): > > Then it should be easy to show where else, in what other great moral or religious codes or the world or in what great works of philosophy, the right to keep and bear arms can be found. > > But it just isn’t there, is it? Rights to privacy? To Abortion? To have gay sex? It’s a right to protect yourself. And it’s here: > **[Self-defence in international law](https://en.wikipedia.org/wiki/Self-defence_in_international_law)** > > Hugo Grotius, the 17th century jurist and father of public international law, stated in his 1625 magnum opus The Law of War and Peace that "Most Men assign three Just Causes of War, Defence, the Recovery of what's our own, and Punishment." > Article 2(4) of the UN Charter requires that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the pur... ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [September 6, 2019, 5:53pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/232 "2019-09-06T17:53:57Z")
> [@DrDeth](#): > > Rights to privacy? To Abortion? To have gay sex? > > It’s a right to protect yourself. > > And it’s here: > [Self-defence in international law - Wikipedia](https://en.wikipedia.org/wiki/Self-defence_in_international_law) I’ve heard of _Army of One_, but not _Nation of One_. Gotta say, clever way of justifying a pre-emptive ‘war’ on your neighbor for crossing your property line. ---
**Author:** ![Abatis](https://avatars.discourse-cdn.com/v4/letter/a/d78d45/32.png) [@Abatis](https://boards.straightdope.com/u/Abatis)\ **Post date:** [September 6, 2019, 6:03pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/233 "2019-09-06T18:03:12Z")
> [@QuickSilver](#): > > So you disagree with **Abatis** position (and cites) that demonstrate the weakness of the armed “unorganized militia” argument? How did you conclude _that_ to be my position? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 6, 2019, 6:17pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/234 "2019-09-06T18:17:03Z")
> [@QuickSilver](#): > > So you disagree with **Abatis** position (and cites) that demonstrate the weakness of the armed “unorganized militia” argument? Very well. > > But you have yet to illustrate what makes guns an intrinsic ‘unalienable right’. The DoI doesn’t talk about it. Simply asserting “context” is not sufficient. It’s not a “argument”, it is Federal Law. The right to defend yourself is a intrinsic ‘unalienable right’. DoI? digital object identifier? If you mean the Declaration, then "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. " Note that word “Life”- the right to defend yourself. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [September 6, 2019, 6:26pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/235 "2019-09-06T18:26:36Z")
> [@Abatis](#): > > How did you conclude _that_ to be my position? Posts #211, #212, #215… You appear to be explicitly stating that the RCBA is an unalienable right, separate and apart from any connection to the idea of a citizen militia. Is that an incorrect interpretation of your position? If so, please clarify. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [September 6, 2019, 6:32pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/236 "2019-09-06T18:32:40Z")
> [@DrDeth](#): > > If you mean the Declaration, then "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. " > > Note that word “Life”- the right to defend yourself. It says you have a right to “Life”. Implied is the right to defend your life. Where does the DoI mention the specific means by which you must defend it, i.e. gun? ---
**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:** [September 6, 2019, 7:21pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/237 "2019-09-06T19:21:44Z")
> [@Shodan](#): > > Again, the right of the people to keep and bear arms cannot be infringed. In general, the militia clause does not create exceptions; it is the justification. Okay, I’m confused as hell by what you’re saying. To reiterate my position, I believe the militia clause is meaningless and the second amendment should be read as granting an individual right. If I’m understanding your posts, you believe the militia clause has meaning and affects the right. But then I posed a set of question which would have one answer if the militia clause has meaning and a different answer if it does not. And all your answers are in line with the no meaning interpretation. ---
**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:** [September 6, 2019, 7:24pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/238 "2019-09-06T19:24:48Z")
> [@ElvisL1ves](#): > > Start with the rest of the Constitution. Fascinating reading; I highly recommend it. I’ve read it. I didn’t find the text you apparently feel is there. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 6, 2019, 7:47pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/239 "2019-09-06T19:47:46Z")
> [@Little\_Nemo](#): > > Okay, I’m confused as hell by what you’re saying. > > To reiterate my position, I believe the militia clause is meaningless and the second amendment should be read as granting an individual right. > > If I’m understanding your posts, you believe the militia clause has meaning and affects the right. > > But then I posed a set of question which would have one answer if the militia clause has meaning and a different answer if it does not. And all your answers are in line with the no meaning interpretation. I think part of the confusion is that you’re treating the militia clause as either/or. The militia clause can be meaningful without necessarily constraining or contradicting the individual right to bear arms. This distinction is discussed in Heller. I wrote about how I think this would lay out in an [older post here](https://boards.straightdope.com/sdmb/showpost.php?p=19443076&postcount=426): > [@On an assault weapon ban](https://boards.straightdope.com/t/on-an-assault-weapon-ban/757469/426): > > Below is my take on it, though I grant it is merely my opinion and in this post I venture into speculative territory. > > The scope of the 2nd hasn’t been fully litigated so I think it could go either way. The way I look at the framework is that there are two paths by which a weapon can fall under the umbrella of the 2nd amendment. > > **Path 1** : weapons that would be typical for a person in the military > This is consistent with Miller but this view has not been tested. As the prefatory clause announces a purpose of the operative clause, utilization in a military function seems to square with this understanding in Miller, and is not precluded by Heller. > \*\* > Path 2:\*\* Weapons that are in common use, and are not both dangerous _and_ unusual > Here a reasonable guide would be the bearable arms available to police. Their need for self defense is without question and anything that enhances the self defense of these persons should be available to all persons. > > Here is what Heller says about my path 1: > > > [@](#): > > > > We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25 > > > > … > > > > It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. > > … This is consistent with Heller and all past SCOTUS rulings. Giving meaning to the militia clause is but one avenue to fall under the protection of the 2nd amendment. But it need not be the only one. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 6, 2019, 8:44pm UTC](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345/240 "2019-09-06T20:44:58Z")
> [@QuickSilver](#): > > It says you have a right to “Life”. Implied is the right to defend your life. Where does the DoI mention the specific means by which you must defend it, i.e. gun? It doesn’t. Dont be silly. It doesnt spell out how we get Liberty or the pursuit of Happiness either. But when a guy comes in to your house with a gun, you use a baseball bat? [Previous page](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345.md?page=11) [Next page](https://boards.straightdope.com/t/founding-fathers-influencing-todays-politics/839345.md?page=13)