# Right to Open carry? **URL:** \ **Category:** Great Debates\ **Created:** [July 25, 2018, 2:17am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535 "2018-07-25T02:17:26Z")\ **Posts on this page:** 20\ **Page:** 8
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 28, 2018, 6:16am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/141 "2018-07-28T06:16:11Z")
> [@UltraVires](#): > > Have you read Heller? Scalia isn’t making it up. He cites original statements from the founders in support. In any event, it doesn’t matter because even if you are right, and you are not, the need for a militia prohibits the type of gun control you seek. The claim to a “need for a militia” in the 21st century is farcical. > [@Bone](#): > > This too is an incorrect reading of the historical record. The court has never held the collective right theory as you suggest. Some informed writing on the issue: For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon. Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.” ## But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. [So You Think You Know the Second Amendment? | The New Yorker](https://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment) The U.S. Constitution, which was signed in Philadelphia in September of 1787, granted Congress the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” the power “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,” and the power “to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Ratification was an uphill battle. The Bill of Rights, drafted by James Madison in 1789, offered assurance to Anti-Federalists, who feared that there would be no limit to the powers of the newly constituted federal government. Since one of their worries was the prospect of a standing army—a permanent army—Madison drafted an amendment guaranteeing the people the right to form a militia. In Madison’s original version, the amendment read, “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” > **[One Nation, Under the Gun](https://www.newyorker.com/magazine/2012/04/23/battleground-america)** > > America has nearly as many guns as it has people, yet our relationship with guns is more complicated than the data suggest. ---
**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:** [July 28, 2018, 6:21am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/142 "2018-07-28T06:21:47Z")
That is anything but informed writing. It starts with a flasehood. The supreme court has never held that the first part of the second amendment trumps the latter part. The rest of the article is nonsense as a result of that obvious factual error. You can’t cite any supreme court holding showing otherwise because it doesn’t exist. Prove me wrong. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [July 28, 2018, 9:41am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/143 "2018-07-28T09:41:02Z")
> [@DrDeth](#): > > I showed several cites t_hat were not behind a paywall and thus worthless like yours_, all of which shows that violent crime and murder is on a decrease. Sorry, I did not know it was paywalled. I posted from work and it was OK, but from home I see now it is indeed behind a paywall. ---
**Author:** ![RobDog](https://avatars.discourse-cdn.com/v4/letter/r/f07891/32.png) [@RobDog](https://boards.straightdope.com/u/RobDog)\ **Post date:** [July 28, 2018, 10:54am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/144 "2018-07-28T10:54:09Z")
> [@laurieb](#): > > I will never understand why anyone would support open-carry. > > Live peacefully, for goodness sakes…maybe it’s because I’m from Germany that I think this way. > [@Gatopescado](#): > > Damn, I’m glad I put my drink down before reading this! > [@aldiboronti](#): > > Sorry, but with Germany’s record over the last century that still sounds weird. Just to say, I think these are fairly uncharitable interpretations of **laurieb** ’s post. I read the subtext as “being German, and therefore very familiar with its recent history, I have an acute awareness of man’s inhumanity to man”, not “golly, us Germans, we’ re such a peace-loving people”. YMMV ---
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [July 28, 2018, 1:09pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/145 "2018-07-28T13:09:16Z")
> [@Crotalus](#): > > When I applied for my license to carry a concealed handgun in Ohio, I was surprised to learn that Ohio is an open-carry state, no license required. That has been the case for far longer than the current law allowing concealed carry, which went into effect in 2004. > > I never carry openly, and I don’t think I have ever seen anyone doing so who wasn’t a law enforcement office. I’m also in Ohio, and I open carry all the time. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 28, 2018, 5:11pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/146 "2018-07-28T17:11:15Z")
> [@Bone](#): > > That is anything but informed writing. It starts with a flasehood. The supreme court has never held that the first part of the second amendment trumps the latter part. The rest of the article is nonsense as a result of that obvious factual error. > > You can’t cite any supreme court holding showing otherwise because it doesn’t exist. Prove me wrong. Sure I can. I can cite the [Oyez description of _US v Miller_](https://www.oyez.org/cases/1900-1940/307us174): “Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.” Furthermore, both _New Yorker_ articles also describe the heavy historical emphasis on the militia aspect and the centrality of that prefatory clause. There were at least five significant Supreme Court cases that subsequently cited _Miller_, including an emphatic stress on the militia prerequisite by justices William O. Douglas and Thurgood Marshall in _Adams v Williams_. This was pretty much the prevailing wisdom, just as Toobin accurately stated, until Scalia came along with his bizarre and tortured logic. It seems like quite a stretch to accuse Jeffrey Toobin, a renowned legal analyst for both CNN and the _New Yorker_, of not knowing what he’s talking about on legal matters. I’d love to know how he would respond to that accusation himself! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 28, 2018, 6:04pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/147 "2018-07-28T18:04:44Z")
> [@wolfpup](#): > > Sure I can. I can cite the [Oyez description of _US v Miller_](https://www.oyez.org/cases/1900-1940/307us174): “Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.” > > Furthermore, both _New Yorker_ articles also describe the heavy historical emphasis on the militia aspect and the centrality of that prefatory clause. There were at least five significant Supreme Court cases that subsequently cited _Miller_, including an emphatic stress on the militia prerequisite by justices William O. Douglas and Thurgood Marshall in _Adams v Williams_. This was pretty much the prevailing wisdom, just as Toobin accurately stated, until Scalia came along with his bizarre and tortured logic. > > It seems like quite a stretch to accuse Jeffrey Toobin, a renowned legal analyst for both CNN and the _New Yorker_, of not knowing what he’s talking about on legal matters. I’d love to know how he would respond to that accusation himself! Scalia addresses this. The quote you picked out of Miller is spot on. It only informs which type of weapons are protected by the Second Amendment, not those who may possess it. Notice how McReynolds did not say that the two crooks did not making a showing that they were part of any militia. It concentrated on the type of weapon. I wish you would read Heller. You make an argument that Scalia is full of shit because of X, when Scalia squarely addressed X in the opinion. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 28, 2018, 6:10pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/148 "2018-07-28T18:10:47Z")
> [@wolfpup](#): > > The claim to a “need for a militia” in the 21st century is farcical. Then it should be trivially easy to pass an amendment to the Constitution. The fact that it is not, and indeed an overwhelming majority are opposed to the type of gun bans you seek show that this need is real in the 21st century. ---
**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:** [July 28, 2018, 9:25pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/149 "2018-07-28T21:25:59Z")
> [@wolfpup](#): > > Sure I can. I can cite the [Oyez description of _US v Miller_](https://www.oyez.org/cases/1900-1940/307us174): “Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.” This doesn’t support the claim in any way. This summary from Miller describes the type of weapon in question, not the type of person (militiaman or not). Here is the specific claim from the New Yorker article you quoted: > [@](#): > > For more than a hundred years, … The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon. No SCOTUS opinion has ever held that the “militia clause” trumped the “bear arms” clause. None. Not in Miller, not Cruikshank, not in Presser, not ever. That you think this was the holding in Miller is a mistake on your part. That Toobin wrote that reflects poorly on his analysis. Rather than look to analyst commentary, pull the original source itself. Miller doesn’t say what you or Toobin think it says. This is directly addressed in Heller (my bold): > [@](#): > > \*\*Miller did not hold that **[That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.”] and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather,** it was that the type of weapon at issue was not eligible for Second Amendment protection: “\*\*In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “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.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. > > … > > Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. See, this is original source material, not commentary. The idea that _Miller_ supports the idea that the “militia clause” trumped the second part, the “bear arms” clause is ludicrous. Toobin may be a fine commentator, but in this matter Scalia and four other SCOTUS judges say that he’s full of shit. On top of that, he’s wrong on the facts, and you are wrong if you believe him. So again, I challenge you - do you have any evidence whatsoever that SCOTUS has held t\*hat the first part, the “militia clause,” trumped the second part, the “bear arms” clause? \* Since the claim is that SCOTUS has held some thing - a SCOTUS cite is all you need. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 28, 2018, 9:47pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/150 "2018-07-28T21:47:25Z")
ETA: I wrote and posted the post below before seeing the post from **Bone** just above. I nevertheless think it addresses the point. Bone, I’m not sure what this “original source” that you quoted refers to – is that from _Heller_? Because what I quoted here is the text of the original _Miller_ ruling, which pretty clears supports my (and Toobin’s) interpretation, as well as William O. Douglas’s commentary on it, which also supports that interpretation. > [@UltraVires](#): > > Scalia addresses this. The quote you picked out of Miller is spot on. It only informs which type of weapons are protected by the Second Amendment, not those who may possess it. Let’s first of all go back to the challenge that **Bone** made to me. He stated that “The supreme court has never held that the first part of the second amendment trumps the latter part”. He characterized this as a “factual error”, Toobin’s entire history of the Second Amendment as “nonsense”, and challenged me to prove him wrong. This I have done. The pertinent words of the _Miller_ ruling are quoted below for reference, and a link to the full ruling provided. It could not possibly be more crystal clear that the ruling holds that the first part of the 2nd Amendment, the statement of militia purpose, trumps the second part, the right to keep and bear arms, inasmuch as the ruling upholds a ban on keeping and bearing arms that have no apparent militia purpose. This is not obscure legalese, it’s simple English. Moreover, William O. Douglas corroborated this common view of militia purpose as recently as 1972, before the NRA and their cronies started their insidious process of revisionist history to redefine the 2nd Amendment. He wrote in _Adams v. Williams_: There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police. The leading case is _United States v. Miller, 307 U. S. 174_, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. at 307 U. S. 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.” “The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. I’m not concerned with Scalia’s desperate, preposterous rationalization but with the words that were actually written in _Miller_. I think we all know how Scalia and his cronies would have decided _Miller_, and it would have been the opposite of the unanimous militia-focused ruling that was actually made, and which Scalia had to skate around using some of the most twisted logic ever seen in jurisprudence. Douglas summed up _Miller_ well in the quote above, but this is the pertinent part of the original text, showing the critical central importance of the militia aspect of the constitutional text – bolding at the end is mine and should be well noted: 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. The Constitution, as originally adopted, granted to the Congress 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.” **With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.** > **[United States v. Miller, 307 U.S. 174 (1939)](https://supreme.justia.com/cases/federal/us/307/174/)** > > United States v. Miller: Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation. > [@UltraVires](#): > > Then it should be trivially easy to pass an amendment to the Constitution. The fact that it is not, and indeed an overwhelming majority are opposed to the type of gun bans you seek show that this need is real in the 21st century. No, this is circular reasoning, a classic example of “begging the question”, the logical fallacy of assuming the truth of the conclusion instead of supporting it. The difficulty of abolishing the 2nd Amendment today is precisely because of the new meaning that gun advocates have bestowed on it through an Orwellian process of revisionist history. The farcical nature of the “need for a militia” lies precisely in the uselessness of such a concept when there is a standing army, navy, air force, and other standing units of the most powerful military in the world. ---
**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:** [July 28, 2018, 10:05pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/151 "2018-07-28T22:05:11Z")
> [@wolfpup](#): > > Let’s first of all go back to the challenge that **Bone** made to me. He stated that “The supreme court has never held that the first part of the second amendment trumps the latter part”. He characterized this as a “factual error”, Toobin’s entire history of the Second Amendment as “nonsense”, and challenged me to prove him wrong. This I have done. Not even close. There are two aspects to the protection recognized by the 2nd amendment. The first is what types of arms are covered, and the second are who enjoys this protection. Do you understand the difference? _Miller_ talks only about the first - the types of arms covered. People like Toobin who advance the militia aspect of the 2nd amendment claim that only when acting in the militia are people afforded the protections of the 2nd, or more generally, only the militia is covered under the protections of the 2nd. That’s wrong and that is not the holding in _Miller_. As you say, this is simple English. Miller only addresses the types of arms that are covered, not who enjoys the protection. As Scalia wrote, if it were about belonging to or engaged with a militia, then _Miller_ could have simply noted the two criminals were not militiamen. But _Miller_ didn’t do that because the interpretation that Toobin is pushing is both completely wrong, and dead as a matter of law. And that’s why we now have the decision in Young. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [July 28, 2018, 10:17pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/152 "2018-07-28T22:17:30Z")
> [@wolfpup](#): > > Moreover, William O. Douglas corroborated this common view of militia purpose as recently as 1972, before the NRA and their cronies started their insidious process of revisionist history to redefine the 2nd Amendment. . It is not revisionist history, again, for the 5th time, when the founders wrote the 2nd, every bale bodies (white) man was part of the militia, by law and automatically. Thus every able-bodied (white) man could own a gun. The fact that the Federal government has since changed the Militia to make it, for all intents and purposes, Part of the regular Federal army (which would shock the Founders) doesnt change what “militia” meant then. this article goes back and forth on “individual” and collective rights for the 2nd. But it has some history: [http://www.madisonbrigade.com/library\_bor.htm](http://www.madisonbrigade.com/library_bor.htm) \*Privately kept firearms and training with them apart from formal militia mustering thus was encompassed by the Second Amendment, in order to enable able-bodied citizens to be trained by being familiar in advance with the functioning of firearms. In that way, when organized the militia would be able to function well when the need arose to muster and be deployed for sudden military emergencies. Therefore, even if the opening words of the Amendment, “A well regulated militia…” somehow would be interpreted as strictly limiting “the right of the people to keep…arms”; nevertheless, a properly functioning militia fundamentally presupposes that the individual citizen be allowed to keep, practice, and train himself in the use of firearms. The National Guard cannot possibly be interpreted as the whole constitutional militia encompassed by the Second Amendment; if for no other reason, the fact that guardsmen are prohibited by law from keeping their own military arms. Instead, these firearms are owned and annually inventoried by the Federal government, and are kept in armories under lock and key. With this preliminary understanding, let’s examine how the Amendment came into being and was then ratified into the U.S. Congress…Richard Henry Lee (writing under the pseudonym “The Federal Farmer”): “A militia when properly formed, are in fact the people themselves, and render regular troops in great measure unnecessary. The powers to form and arm the militia, to appoint their officers, and to command their services, are very important; nor ought they in a confederated republic to be lodged, solely, in any one member of the government. First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia ― useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permament interests and attachments in the community is to be avoided. …To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them”…."The ‘militia’ was the entire adult male citizenry, who were not simply allowed to keep their own arms, but affirmatively required to do so.… With slight variations, the different colonies imposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied white man between the age of majority and a designated cut-off age. Moreover, the duty to keep arms applied to every household, not just to those containing persons subject to militia service. …― “[t]o the Founders and their intellectual progenitors, being prepared for self-defense was a moral imperative as well as a pragmatic necessity.” "In the tradition from which the Second Amendment derives it was not only the unquestioned right, but a crucial element in the moral character of every free man that he be armed and willing to defend his family and community against crime. This duty included both individual acts … And this leads, rather logically and naturally, I think, to the clear and unequivocal words of the Second Amendment. The Founding Fathers intended that the people possess a right to be armed for duty in the general militia, as well as a right to keep and bear arms for their self-protection. In other words, for their generation and all succeeding generations of free Americans, they intended that every man should be armed.\* > **[Second Amendment to the United States Constitution | State Constitutional Precursors to the Second Amendment](https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#State_Constitutional_Precursors_to_the_Second_Amendment)** > > In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to prese... \*Pennsylvania, September 28, 1776 Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.[93] IMPORTANT NOTE: This is the first instance in relationship to U.S. Constitutional Law of the phrase “right to bear arms.”\* _North Carolina, December 18, 1776 A Declaration of Rights. Article XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.[97]_ Here’s how the 2nd was originally worded: _The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[_ \*On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring: [E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service,…\* So, every (white) male was in the militia, so the idea behind it being a individual or collective right is silly. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 28, 2018, 10:40pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/153 "2018-07-28T22:40:28Z")
Let’s look at the most pertinent part of your _Heller_ quote: \*“Miller did not hold that [That the Second Amendment ‘protects the right to keep and bear arms for certain military purposes …’] and cannot possibly be read to have held that.” \* Here is what _Miller_ actually said, the part that I bolded above; after quoting the Constitution as empowering Congress to call forth militias, it states: “_With obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view._” The language here is clear and unambiguous, the context of militias clearly established, and the contradiction to Scalia’s convoluted logic is self-evident. William O. Douglas not only concurred with _Miller_, but went so far as to say that, for that very reason, the Second Amendment should be no impediment to restricting handguns, prohibiting them from certain individuals, or banning them altogether, precisely what Scalia said the Second Amendment absolutely prevented, based on his fanciful interpretation of both the constitutional text and precedent. Siding with Scalia et al seems to me to have a great deal to do with ideology and bias based on desired outcome. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 28, 2018, 10:47pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/154 "2018-07-28T22:47:09Z")
> [@wolfpup](#): > > Moreover, William O. Douglas corroborated this common view of militia purpose as recently as 1972, before the NRA and their cronies started their insidious process of revisionist history to redefine the 2nd Amendment. He wrote in _Adams v. Williams_: > There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police. I just want to point out that the quoted material from William O. Douglas in [_Adams v. Williams_](https://www.law.cornell.edu/supremecourt/text/407/143) was NOT an opinion of the Supreme Court; it was from a _dissenting opinion_ by Justice Douglas (joined by Justice Marshall). One could just as easily quote from _Heller_ itself to claim that “the Supreme Court” has corroborated the view that the Second Amendment doesn’t protect a right to possess firearms for personal self-defense. It’s also a bit odd to characterize Douglas’ dissent in _Adams v. Williams_ as having been stated “before the NRA and their cronies started their insidious process of revisionist history to redefine the 2nd Amendment” when Douglas himself, in that dissenting opinion, wrote > [@](#): > > A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.” ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 28, 2018, 11:01pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/155 "2018-07-28T23:01:59Z")
> [@Bone](#): > > As Scalia wrote, if it were about belonging to or engaged with a militia, then _Miller_ could have simply noted the two criminals were not militiamen. No, it couldn’t, because there is no language in the 2nd Amendment about “belonging to” anything. Nor is that a reasonable perspective since militias could be _ad hoc_ entities that could be formed and called up if and when necessary. As noted above, _Miller_ clearly interpreted the entirety of the 2nd Amendment as empowering the readiness to do so, and since the weapon in question didn’t contribute to such readiness, constitutional protections didn’t apply. As William Douglas pointed out in _Adams v Williams_, handguns could be banned by the same logic, a point that conveniently escaped Scalia whose outcome-based ideology was here directed explicitly to overturning a handgun ban. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 28, 2018, 11:13pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/156 "2018-07-28T23:13:32Z")
> [@MEBuckner](#): > > I just want to point out that the quoted material from William O. Douglas in [_Adams v Williams_](https://www.law.cornell.edu/supremecourt/text/407/143) was NOT an opinion of the Supreme Court; it was from a _dissenting opinion_ by Justice Douglas (joined by Justice Marshall). One could just as easily quote from _Heller_ itself to claim that “the Supreme Court” has corroborated the view that the Second Amendment doesn’t protect a right to possess firearms for personal self-defense. > > It’s also a bit odd to characterize Douglas’ dissent in _Adams v. Williams_ as having been stated “before the NRA and their cronies started their insidious process of revisionist history to redefine the 2nd Amendment” when Douglas himself, in that dissenting opinion, wrote I’m aware that Douglas’ opinion was a dissent, but I didn’t think that fact was relevant because _Adams v Williams_ was not a case about gun control, but about the legality of a police officer conducting a search based only on an informant’s tip. My purpose in quoting Douglas wasn’t to cite a Supreme Court ruling, but to cite a respected jurist corroborating my interpretation of the _Miller_ ruling. As for “before the NRA …”, the “powerful lobby [that] dins into the ears of our citizenry” that Douglas was referring to was nothing back then compared to what it became in later years, in the course of which the Supreme Court itself became far more ideological and divided. ---
**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:** [July 28, 2018, 11:38pm UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/157 "2018-07-28T23:38:35Z")
> [@wolfpup](#): > > No, it couldn’t, because there is no language in the 2nd Amendment about “belonging to” anything. Nor is that a reasonable perspective since militias could be _ad hoc_ entities that could be formed and called up if and when necessary. As noted above, _Miller_ clearly interpreted the entirety of the 2nd Amendment as empowering the readiness to do so, and since the weapon in question didn’t contribute to such readiness, constitutional protections didn’t apply. As William Douglas pointed out in _Adams v Williams_, handguns could be banned by the same logic, a point that conveniently escaped Scalia whose outcome-based ideology was here directed explicitly to overturning a handgun ban. Your reading of Miller is not very circumspect. Miller didn’t hold that a short barreled shotgun didn’t contribute to military or militia readiness. Miller held that without evidence that such a weapon was used for military purposes, it cannot be said that a short barreled shotgun was covered under the 2nd. Part of the reason that no evidence was presented was because the neither defendants or their counsel appeared before the SCOTUS. Miller, a known bank robber, was found killed before the judgment rendered. If they did mount an argument, it could have easily been shown that short barreled shotguns were used in the context of the military both at the time of the trial and in historical times back to the days of the founding fathers. > [@wolfpup](#): > > Here is what _Miller_ actually said, the part that I bolded above; after quoting the Constitution as empowering Congress to call forth militias, it states: > > “_With obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view._” Here you think Miller is holding that the only protections recognized by the 2nd amendment are when people are engaged in militia related activity? That’s a twisted contortion. It could just as easily be said that since the continuation and effectiveness of the militia is the purpose of the 2nd amendment, the individuals that may potentially be called up and bring their own personal weapons can not be restricted in what they possess or carry. And that’s why your reading is wrong - it extends the language in Miller beyond what the text says. Your argument that SCOTUS has held the militia clause trumps the bear arms clause based on this flawed understanding of Miller is also without merit. And I forgot to mention earlier, but was reminded by MEBuckner’s post. You have yet to provide a cite that supports that assertion - a dissenting opinion is not such a cite. If that were a valid cite, I can bring up a lot of what Thomas has wrote. And also, you think handguns don’t contribute to military purpose or readiness? That’s just silly. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 29, 2018, 12:13am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/158 "2018-07-29T00:13:26Z")
> [@wolfpup](#): > > No, it couldn’t, because there is no language in the 2nd Amendment about “belonging to” anything. Nor is that a reasonable perspective since militias could be _ad hoc_ entities that could be formed and called up if and when necessary. As noted above, _Miller_ clearly interpreted the entirety of the 2nd Amendment as empowering the readiness to do so, and since the weapon in question didn’t contribute to such readiness, constitutional protections didn’t apply. As William Douglas pointed out in _Adams v Williams_, handguns could be banned by the same logic, a point that conveniently escaped Scalia whose outcome-based ideology was here directed explicitly to overturning a handgun ban. I agree with Bone, however, your suggestion that because short barreled shotguns and handguns are not military weapons (why I don’t know) then something like a fully automatic M-16 which indisputably is a military weapon is something the government could not prohibit, no? ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [July 29, 2018, 1:09am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/159 "2018-07-29T01:09:01Z")
At think we’re now at the point that we just have to agree to disagree on what I consider to be very obvious interpretations, but I just want to clarify some assertions that I regard as flat-out wrong. Ultimately my position on this is that (a) the 2nd Amendment serves no useful purpose in the modern world, but would normally be harmless rather than actively harmful, just like equally archaic Third Amendment is harmless, except that (b) years of drumbeats and propagandizing by the gun lobby have perverted this archaic amendment into a proactive promulgation of a public hazard, blocking rational gun control and creating a public danger so great that it’s problematic even for bordering nations. > [@Bone](#): > > Your reading of Miller is not very circumspect. Miller didn’t hold that a short barreled shotgun didn’t contribute to military or militia readiness. Miller held that without evidence that such a weapon was used for military purposes, it cannot be said that a short barreled shotgun was covered under the 2nd. Part of the reason that no evidence was presented was because the neither defendants or their counsel appeared before the SCOTUS. Miller, a known bank robber, was found killed before the judgment rendered. If they did mount an argument, it could have easily been shown that short barreled shotguns were used in the context of the military both at the time of the trial and in historical times back to the days of the founding fathers. That completely misses the point. My quote from the _Miller_ ruling in #150 makes it crystal clear that the militia was ruled to be the sole purpose and justification of the 2nd Amendment, a point especially underscored by their own quotation of the authority of Congress to call up militias, by the part that I bolded about that being the only way to interpret the rights conferred by the 2nd Amendment, and by the justices’ unanimous judgment of the disputed shotgun in exactly those terms. There’s been some suggestion that _Miller_ was wrongly decided, as you suggest, but not because of the linkage to militias, but rather because the shotgun in question arguably should have qualified as a militia weapon – a completely different issue that changes my point not one iota. > [@Bone](#): > > And I forgot to mention earlier, but was reminded by MEBuckner’s post. You have yet to provide a cite that supports that assertion - a dissenting opinion is not such a cite. If that were a valid cite, I can bring up a lot of what Thomas has wrote. And also, you think handguns don’t contribute to military purpose or readiness? That’s just silly. The cite I offered was the unanimous ruling in _Miller_. That Douglas was dissenting in _Adams v Williams_ is irrelevant as he was dissenting on something entirely different and unrelated, as I already mentioned. But in the course of his dissent on the lawful-search issue, which is what that case was about, he offered an opinion on _Miller_, in line with everything I’ve been saying, and AFAIK no justice disagreed with him on the militia aspect of _Miller_, and indeed AFAIK no Supreme Court ruling ever did until Scalia architected the _Heller_ fiasco. > [@UltraVires](#): > > I agree with Bone, however, your suggestion that because short barreled shotguns and handguns are not military weapons (why I don’t know) then something like a fully automatic M-16 which indisputably is a military weapon is something the government could not prohibit, no? As to why, you should address those questions to the reasons for the _Miller_ ruling regarding the shotgun issue, and the reasons for William O. Douglas’s comments regarding the handgun issue. They’re the ones who said it, not me. I would imagine it’s because neither of those weapons are very useful in battle. Fully automatic military weapons are one of those peculiar ironies arising from the basic obsolescence and uselessness of the 2nd Amendment. The reference to militias is right there in black and white, I didn’t make it up, and such military weapons would be perfect in fulfilling the putative role set out in the Amendment. The fact that they’re nominally disallowed or at least restricted because they’re too damn dangerous is just evidence that, quite understandably, no one takes militias seriously any more and haven’t for a very long time. It’s just proof that the whole thing is a farce in the modern world. If you need military weapons for some purpose of national defense, you have a real military to wield them. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 29, 2018, 2:36am UTC](https://boards.straightdope.com/t/right-to-open-carry/818535/160 "2018-07-29T02:36:57Z")
> [@wolfpup](#): > > Fully automatic military weapons are one of those peculiar ironies arising from the basic obsolescence and uselessness of the 2nd Amendment. The reference to militias is right there in black and white, I didn’t make it up, and such military weapons would be perfect in fulfilling the putative role set out in the Amendment. The fact that they’re nominally disallowed or at least restricted because they’re too damn dangerous is just evidence that, quite understandably, no one takes militias seriously any more and haven’t for a very long time. It’s just proof that the whole thing is a farce in the modern world. If you need military weapons for, some purpose of national defense, you have a real military to wield them. We didn’t need the militia to protect us at Lexington and Concord. We had a professional army, the British regulars, to protect us from… Once the ahah comes, you see why a militia is needed. [Previous page](https://boards.straightdope.com/t/right-to-open-carry/818535.md?page=7) [Next page](https://boards.straightdope.com/t/right-to-open-carry/818535.md?page=9)