Second Amendment: What does "well regulated" mean exactly?

Great Debates
221

Assumption not supported by the Constitution, law or various opinions of SCOTUS over the last 192 years. 192 years ago SCOTUS said that Art.I, § 8, cl. 16 represented the full complement of militia powers conferred upon Congress by the Constitution. The only mention of the 2nd Amendment was in Justice Story’s dissent where he said that the 2nd Amendment, “may not, perhaps, be thought to have any important bearing on this point” (the point being the line between federal and state powers over the militia).

As I said before, 2nd Amendment has never been inspected to inform or held to instruct on any aspect of militia powers, federal or state. The 2nd Amendment has, as SCOTUS said later, “no other effect than to restrict the powers of the national government” (Cruikshank & Presser).

The 2nd Amendment does not establish any rights.

The Constitution is a charter of conferred powers, powers the people first possessed and lent to government. All not conferred is retained by the people and that includes the individual citizen’s right to keep and bear arms, free of any conditioning or qualification. No power was ever granted to government to impact the personal arms of the private citizen so none exists.

The people retained all aspects of the right to arms; there was nothing for the government to ‘establish’ or ‘grant’ or ‘give’ or ‘give back’ to the citizen in a limited fashion via the 2nd Amendment because the government cannot establish, create, grant or give what it never had.

The Supreme Court has affirmed this principle multiple times over the last 135 years for the citizen’s right to keep and bear arms. Presser is typical:

[INDENT]“[T]he right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence”[/INDENT]

You could separate the clauses with the Pythagorean Theorem, it wouldn’t alter anything. You could amend the Constitution and remove the 2nd Amendment entirely and it would not have any impact on the right of the people to keep and bear arms because, again, the right to arms is not IN ANY MANNER dependent on the Constitution for its existence.

Usurpation.

222

I agree with you Abatis, yet to play devil’s advocate here:

Despite the truth of all that you’ve pointed out, from as long ago as the Sullivan Act on to the present day, state restrictions and bans on firearms were in effect and afaik they were seldom questioned or challenged. Beginning in the 1920s and 1930s many states adapted “A Uniform Act to Regulate the Sale and Possession of Firearms.”, which was endorsed by the NRA and called for carrying firearms to be illegal except for “may-issue” carry permits. This was the status quo for so many decades that the antis consider this to be the normal state of a law-abiding society, and don’t understand why it isn’t perfectly ok to go back to that. The question does have to be addressed that if these measures were so blatantly unconstitutional why did no one seemingly care?

ETA: and the Supreme Court has found both state “assult weapons” band and the federal AWB to be constitutional.

223

Wow.
I don’t know if I should apologize for daring to ask questions, or just go ahead and commit seppuku for dishonoring my family, my country and God. BTW, I was actually wondering if a Constitutional Convention was necessary to make such a cosmetic change to one of the amendments, or was there a simpler way to do it…but if all that has been tossed aside by Congress and the Supreme Court and usurpation is now the recommended path to follow, I think I’ll just leave well enough alone.

I do find it unusual that you hold the opinion that what the Amendments say just doesn’t matter, and that removing them wouldn’t make a lick of difference. Do other 2nd Amendment supporters reading this thread agree with this?

edited to add: While we’re at it, will someone tell me why I’m considered to the extremest in this conversation? I don’t think I have ever said I was against the ownership of guns, so why do I get to wear the black hat?

224

Gun owners are paranoid. You’ve seen it in this thread. You’ve seen it from the NRA. You’ve seen it a lot when it comes to Obama.

Just asking the question “Don’t we have an obligation as a society to look at ways to curb gun violence which is, by all accounts, out of control in many places” means that you’re a commie socialist liberal.

And unless you reply to that question with “give everyone weapons and legalize concealed carry everywhere for everyone,” you obviously want to get rid of all guns in this country.

You are not allowed middle ground in this conversation. Don’t even try it.

(Yes, some of this is hyperbole. But with “kernel of fact,” I assure you.)

225

You need to go back farther than that.

The most instructive period is Reconstruction and you would need to examine the Black Codes and Congressional response to them(77KB pdf). Securing the right to arms of Freemen of African descent was of particular interest because disarming them and keeping them helpless was of particular interest to some state governments.

The 14th Amendment (1868) and the Enforcement Act (1870) were meant to extinguish such laws and end discriminatory acts by state governments.

Then the Slaughterhouse Cases happened (1873) and the “privileges or immunities” clause was essentially ripped out of the 14th Amendment and the general intent of the 14th was thwarted.

This left only “due process” as the vehicle to apply the Bill of Rights to the states and that of course requires a case by case analysis which begot decades and decades of “selective incorporation” and the dribs and drabs approach we have seen . . . with the 2nd Amendment finally being applied to the states in 2010.

So for all those years states and local governments have had virtually a free reign (of course they can’t say Blacks can’t own guns but they can be geographically discriminatory wink-wink, see DC & Chicago) with the only limits being their own constitutions.

This ‘how did we get here’ is a great question but not something that can be done in 200 words or less. This post barely scratches the surface and it is stepping into Too Long Didn’t Read territory.

When did that happen? I would argue that SCOTUS holdings to date would support the premise that if there is one type of firearm that enjoys near absolute 2nd Amendment protection it is those known as “Assault Weapons” (semi-automatic versions of medium caliber military rifles, i.e., AR and AK clones and variants).

226

Admit it-you’re just trying to steal his liberty.

227

ENOUGH!

Everyone will knock off the bickering and will resist the urge to claim you know what “the other guy” “really” meant.

No more comments on other posters.
No more attributing the worst motives to one’s opponents.
No more talk of paranoia or trying to take away rights.

Lay out your beliefs regarding a “well regulated militia” and take the rest of your hurt feelings to The BBQ Pit.

[ /Moderating ]

228

Let me rephrase my question: If the first part of the 2nd Amendment(“A well regulated militia”) is meant to convey an establishment of a state militia and is not to be tied to the rest of the 2nd Amendment, would it be possible and/or advisable to rewrite the 2nd Amendment so as to more clearly delineate the two without in ANY way weakening either of them? If the answer is yes, what would we have to go through to accomplish this goal?

229

Eliminate that clause entirely, and such an amendment would easily pass.

n.b: I would vote against it, so I am not an advocate. I just recognize reality.

230

I don’t think eliminating that clause is an option if it truly is for the purpose I put forth-the establishment of a state militia…unless it can be shown that that right is already firmly established elsewhere in the document. If it can, then yes, take in out of the 2nd Amendment.

231

It’s not. We have a sitting president of the Democratic part who is a “constitutional scholar” who says the constitution guarantees an individual right to bear arms. This is not some fringe view-- it’s the mainstream view in the USA. Polls show something like 2/3 support for this view among Americans. It’s a done deal.

232

Ah! I think we are talking past each other here. The part I am referring to is the “Well-regulated militia” beginning of the 2nd Amendment. If it can be shown that there is a right to a state militia elsewhere in the Constitution, can we just eliminate that part of the 2nd entirely, leaving the rest intact?

233

Would you prefer I ask permission before answering your questions or apologize for doing so? LOL.

Of course the process of Article V must be followed to alter the Constitution in any manner, regardless of how inconsequentially cosmetic you think it to be.

Why do you say tossed aside? This issue of an armed citizenry goes to fundamental principles and they can not be altered by any means . . .

But to speak of the process of this modification asked about, if the change is intended to “take back” something the federal government never possessed, by altering words that the right does not depend on, to empower government to do what was previously forbidden, then I’m sorry to inform you, that is usurpation (or “stealing liberty”).

In the same way that the total non-existence of the Bill of Rights wouldn’t impact our rights. Yes.

I’m going to assume that you have never read Federalist 84.

The fear of inevitable illegitimate propositions (i.e., the militia conditioning argued for from misconstructing the declaratory clause of the 2nd) was a primary reason why the Federalists argued against adding a bill of rights to our Constitution.

They argued correctly that no matter how the provisions were worded, someone would advance the idea that simply because an act is forbidden that a power can be invented to do what was forbidden under the auspices of protecting the right.
[INDENT]“Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”[/INDENT]

There is the issue of this thread in a nutshell . . . Using the words (upon which the right in no manner depends) to invent a “regulating power” to qualify, condition, restrict and even eliminate the right of the people . . .

The Federalists thought that under our Constitution, comprised of conferred powers (thus strictly limited) that adding a bill of rights was an insult and dangerous.
[INDENT]“I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”[/INDENT]

I would argue that Elvis and the Ear are promoting precisely what the Federalists feared and warned us about.

That is not a concern to me. I have had my share of 2nd Amendment “purists” take swipes at me but I can only show them the light, I can’t make them see.

I am not a gun rights supporter because I am a gun lover or gun nut. I support gun rights because I am an originalist and apply fundamental principles first.

234

Rephrased or not you begin with an assumption not supported by the Constitution, law or various opinions of SCOTUS over the last 192 years.

Art.I, § 8, cl. 16 ***alone *** is the authority that defines and allows the formation, organization, training and control of the militia. Let me rephrase, it is the only part of the Constitution inspected to decide issues of militia formation, organization, training and control.

The 2nd Amendment has never been inspected to inform or held to instruct on any aspect of militia powers, federal or state. The 2nd Amendment has, as SCOTUS said later, “no other effect than to restrict the powers of the national government” (Cruikshank & Presser).

The clauses were delineated without ambiguity when the proposed amendments were transmitted to the states for ratification. Congress told us precisely what types of clauses the provisions contained and why they were being presented.

[INDENT]“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

Preamble of the Bill of Rights (National Archives)[/INDENT]

The declaratory clause only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state). The inactive, dependent declaratory clause is only a statement of why the AMENDMENT exists and only tells us a political reason why the fully retained right is being forever shielded from government interference by the independent, restrictive clause.

235

I thought for certain that I’d read somewhere that the constitutionality of the original AWB was upheld by the SCOTUS, but now I can’t find a cite. I’ll look into this further.

236

I’m not sure what you mean by “can we”. We can, within the framework of the amendment process, but of course you know that. I’m not aware of any other way to “eliminate” that part. My point was simply that no one really cares about militias when they talk about gun rights these days. Americans, by a considerable majority, think individuals have a fundamental right to own guns. The only thing we’re left with is exactly how much the government can regulate that. We’re not going to get to the point where Americans agree that the government can bad guns, in general.

237

“Because the boulder is heading for Jane and not for Harry, you must push Jane out of the way.”

But, in fact, the boulder is heading for Harry.

Do you think the person who issued the command really intends that you push Jane out of the way even if their provided rationale turns out to be incorrect?

238

Which is why I haven’t brought up the subject of banning guns.
Let me repeat myself: I am NOT interested in banning guns.
ME. NO. WANT. GUN. BAN.

239

That’s not the syllogism the second amendment creates. XT, in fact, provided a few cites showing they were separate thoughts, and the current clunky wording was the product of the sausage making in a couple of committees.

Nonetheless, as much as this would eliminate all doubt, there is no qualifying wording associated with the introduction. There is no “So long as…” There just isn’t anything in plain English that states that the introduction is the requirement for establishing the right. And more than that, we actually have drafts of the wording that led to this that shows that it was never intended as a condition for the right. As noted on Wiki: “The right to have arms in English history is believed to have been regarded as a long-established natural right in English law, auxiliary to the natural and legally defensible rights to life.” IMO, there’s just no reasonable way to conclude this wasn’t identifying a basic human right, with some superfluous wording introducing it. There is certainly nothing in English that says so–only the inference that it must mean that since it can’t be superfluous, which is baseless.

A better analogy: “It’s awesome to enjoy the sun on our faces, walking freely, the right of the people to leave their houses shall not be infringed.” There’s nothing except supposition that would lead us to assume that we can leave our houses only so long as the sun shines. The words themselves say the right cannot be infringed.

240

Got it- it was the Fourth Circuit Court of Appeals; the SCOTUS simply declined (pre-Heller) to hear the case: United States v. Kelly, 276 Fed. Appx. 261 (2007).