SCOTUS says it’s not gratuitous.
Care to be more specific about that?
Sure it matters.
Nowhere else, in the entire constitution (excepting perhaps the preamble which is not law), did the FFs include gratuitous language. Yet you would have us believe that they did it just this one time. No explanation as to why and it certainly would be unique in the whole document if that is the case.
They could have chosen to write, “The right of the people to keep and bear Arms, shall not be infringed” but they didn’t. The FFs were not stupid. They did not write the 2nd amendment at the end of long night of drinking and rush it in on a deadline. These things were worked on with great diligence. Had they meant, “The right of the people to keep and bear Arms, shall not be infringed” they would have just said that.
It follows then that the wording of the second is intentional and that all the words were intended to mean something and are not superfluous or gratuitous.
From Heller:
The prefatory clause announces the purpose, though does not constrain it to that purpose alone.
Calling it ‘prefatory’ doesn’t change the meaning though. I agree with the conclusion that it is not constrained to that purpose alone. One could consider that the first part enshrines the concept of a well regulated militia in addition to the right to bear arms for other reasons, so thus not gratuitous, but in relation to the second part it is gratuitous because it is not constraining.
Whack-a-Mole, there is no great regularity to the wording of the Bill of Rights or the rest of the Constitution that would elevate the inclusion of the first part of the 2nd amendment to have it bear on the rest of it. The 3rd amendment is definitely a reaction to the Quartering Acts and could have explicitly said so, but an additional reason for it’s inclusion would not enhance it’s meaning. Even the second part of the 3rd does nothing at all, leaving in place the ability of the ability of the government to create another Quartering Act for times of war. The 7th amendment includes the fixed value of $20 to require a jury trial in a civil trial, a value that now would be over $300. There is no good reason to interpret the first part of the 2nd amendment to have special meaning applied to the second part. Even considered non-gratuitous and bestowing a right to maintain militias still does not affect the remainder of the amendment and it’s clear restriction on the state.
I interpreted the word gratuitous to apply to the entire constitution, not just within the amendment itself. But even in the narrower construction you offer, the prefatory clause is still not gratuitous. Simply being not constraining is not the definition of gratuitous. The prefatory clause announces a purpose. It does something. If it were gratuitous it would do nothing.
Regarding language:
If you’re going to read Shakespeare and understand half of what he’s talking about (including the bawdy humor), you’re going to need a dictionary that includes the archaic meanings of many words, or an annotated edition that explains the text. Similarly, when the King James Bible quotes Jesus as saying “Suffer the little children to come unto me”, it is using an older meaning of the word ‘suffer’, not that Jesus is advising us that corporal punishment is necessary to raise our children to be Christians. As recently as the 1940s, C.S. Lewis pointed out in an essay(“Christian Apologetics”) that he was surprised to discover that the younger generation was misinterpreting a lot of the very formal classical language sermons were then preached in- that ‘creature’ meant what a creator has made, not a monster or thing, and that ‘gravity’ meant seriousness or importance, not the force that makes things fall to the ground.
So it must be remembered that in the late 18th century, the Latin word ‘militia’ was a plural- it referred to the armed mass of the populace, not a singular organization created and controlled by the state. And that ‘well-regulated’ meant something more like functional, in good working order. If you don’t believe me read the Federalist #29, where the use of those terms is clear and unambiguous in context. So in modern language, the preface to the Second Amendment might be paraphrased as “a practiced and experienced armed population, being necessary to the security of a free State,”.
So if you’re wondering what purpose the prefatory clause of the Second could serve, it must also be taken in context of why the Second Amendment was thought to need to be explicitly stated in the first place. From the Federalist and Anti-Federalist papers, it is clear that the Anti’s were alarmed at the new Constitution giving the Federal government co-authority with the state governments to muster and command the militia. Could the federal government use that authority to disarm the populace under some pretext? (At the time no one even dreamed that anyone could argue with a straight face that banning firearms could be construed to be a “proper and necessary” power of the federal government). The Second’s purpose was to forestall any weaselly lawyering the Fed might try to disband or nullify the armed populace, which was to be a check against any imperial ambitions on the Feds part. So the prefatory clause is pointing out “we NEED civilian arms, so don’t try to say we can do without.”
Really? From 29:
So when Hamilton says "under the regulation and at the disposal of that body ", he meant “under the functional and in good working order of that body”?
And when he says “What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen”, he meant “What plan for the functional and in good working order of the militia may be pursued by the national government, is impossible to be foreseen”?
So when Hamilton says “a select corps of moderate extent” he meant everybody?
Curious interpretations.
He means that “that body” (the Federal Government) had a legitimate interest in seeing to it that the militia be trained to a uniform standard, so if armed citizens from different states had to be called up for a national emergency, the result wouldn’t be a hodgepodge of units incapable of coordinating with each other.
In addition to the fear that the Federal Government might disarm or otherwise neutralize the armed citizenry, there was an an equal and opposite worry that the Federalist paper #29 goes on at some length about: that the Fed might use its authority to muster the militia to keep the population permanently regimented and subject to military law. Hamilton points out at length how impractical that would be, but then reiterates that a “select” core of volunteers should be maintained at military-grade readiness. The term ‘select’ the equivalent of what would later be called the ‘organized’ militia in the 20th century.
IOW Hamilton, among the least egalitarian and most pro-Federal of the Founders, would have heartily approved of our modern National Guard; Jefferson and others perhaps much less so. Remember that in their era the English Civil War was as recent as the American Civil War is to us. In that conflict, ‘select’ militias- people vetted for loyalty to the regime and given special permission denied to everyone else to possess arms- were viewed as much as tools of tyranny as the standing armies. The anti-Federalist papers mention fears that such a selection would eventually become government enforcers- which pretty much is what ended up happening.
Carrying a brace of pistols in your carriage was not noteworthy. There’s the old song about the *“The circuit-riding preacher used to ride across the land,
With a rifle on his saddle and a Bible in his hand;…”
*
Bolding mine.
I ain’t got much of a dog in this debate but I did want to clarify a couple things.
They could be and usually were carried loaded although the percentage of people who did so about larger settled towns and cities is in itself a Great Debate. The number of flintlock belt, boot and “muff” pistols we have that survive to this day gives us some idea. The very designs are for concealed carry. And this isn’t the type of thing you kept for use only around the house or cabin; you probably had a fowler or old musket (smoothbores) for that. On the frontier, say Pittsburgh circa 1780, the historical record seems to indicate that someone without a visible and/or concealed weapon would have been the exception more than the rule. If you read through a lot of the Wennawood reprints as I have of early histories you will come across cases of people being “disarmed” and falling back on their concealed pistol. So they had them, loaded and ready for when needed.
Now say post 1820 and the percussion cap becoming more common, all bets are off on how high the figure could go. My bet is through the roof and then some. Having carried loaded belt and boot pistols (as part of competitions called “Primitive Woods Walks” or “Mountain Man Runs”) I can attest that you need a fairly good firearm and look to your priming with care or risk losing the pan charge or having another form of misfire with flintlocks. But I can indeed do it. And I’m only doing it for fun and sport; imagine how much incentive there could be if my life very well depended on it?
There’s no Nobel Prize for economics.
I’m bookmarking this quoted post for the Pointless Pedantry Prattling thread.
I really don’t care what the various individual “founding fathers” thought about open carry, or arms in general.
I am firmly opposed to the all too common habit many people have, of DEIFYING the “FF’s,” and behaving as though we must live according to the collective fantasies of those eighteenth century men, or magically lose the mythical wonder of the United States.
Frankly, following that mentally ill delusion is what has, more than anything else, already endangered individual rights and liberty in the country.
My opinion is that a lot of the Constitution was either poorly written, or was made purposely vague, in order to allow men who sharply disagreed with each other over all sorts of details, to nevertheless sign on to create a nation with it. It’s up to us who came after, to correct their purposeful and accidental errors. They did do one thing very right, which was to build in a specific way that we CAN make corrections, including making it sufficiently difficult to do so, that we wont be likely to make hasty changes without debate.
The Second Amendment in particular needs a rewrite. Not just because of the unnecessary confusion engendered by the “militia” participle, but because as it is so oversimply written, that no provision is made for keeping weapons of mass destruction out of the hands of lunatics and traitors and criminals.
I’m cool with that. Aspire to accuracy.
What delusion?
We look to the FFs because they wrote the constitution which is the law we follow. You do not have to like those laws but it is what we’ve got.
I have conceded your point. It is not gratuitous in that it establishes the need and right for well regulated militias.
Of course the Founders weren’t infallible or even fully consistent between outliers like Jefferson and Hamilton. If they’re “deified”, it’s because the United States was among the very first nations in modern times to be (at least in theory) explicitly founded on the principle of human liberty- that government did not have an absolute Hobbesian authority to impose any measures whatsoever in the name of social order. And one of these Enlightenment ideals is denying the government a monopoly on armed force- indeed at the time, actually removing most armed force from the government and making it dependent on the armed support of the population, in order to guarantee that a ruling elite wasn’t subjugating the people.
My point in starting this thread was to question whether something widely presumed by the gun control faction is actually supported by history: the presumption that of course limiting the public carry of weapons is a prima facie requirement of public order; that modern movements in favor of public carry are aberrant departures from a time-honored social principle. What gun rights advocates such as myself claim is that modern carry movements are a restoration, a return to a freedom that was so gradually and quietly infringed upon over the course of more than a century that modern generations have lost sight of the fact that it wasn’t always so. What I’m asking is, if people really accepted from the first that it was OK to forbid the public carry of guns, show me the cites please. Or admit that it once really was OK to go armed, and that sentiments to the contrary are a later development.
America is awash with laws intended to keep weapons out of the hands of lunatics, traitors and criminals, since neither the Second Amendment nor the rest of the Bill of Rights has ever been held to recognize a boundless libertarian immunity from government control. The only further measures that could be taken would be to flatly forbid the manufacture or sale of proscribed weapons to anyone, whether they were lunatics, traitors and criminals or not. That’s what sticks in the craw of gun rights advocates.
I wasn’t aware that machine guns are widely available to the general public. Sure, you can own a machine gun providing you have a Class III license which includes one he’ll of a background check. Then have $10 to $250k available to purchase one.