What does the first part of the 2nd amendment mean?

[Stealth_Potato]

[QUOTE=BrainGlutton]
The people cannot defend themselves from a tyrannical state with small arms. Saddam Hussein ruled a population armed with AK-47s; it didn’t help.
[/QUOTE]
So, doubtless you advocate dismantling our military, then. :dubious:

The same military, incidentally, that is currently unable to effectively quell an insurgency in Iraq…

[QUOTE=Czarcasm]
Was that the only definition of “well-regulated” at that time, or is that the definition some people choose to follow because it frees up the second part of the Second Amendment?
[/quote]

It wouldn’t “free up” anything - the operative phrase of the amendment is still “the right of the people to keep and bear arms shall not be infringed,” regardless of whatever justification is attached. If you think the justification no longer applies, you’re free to argue against the Second Amendment on those grounds, but the law as it stands still applies.

[Tristan]

[QUOTE=BrainGlutton]
The people cannot defend themselves from a tyrannical state with small arms. Saddam Hussein ruled a population armed with AK-47s; it didn’t help.
[/QUOTE]

Abdul al Citizen didn’t have AK-47’s. Ba’ath party members might have, but they didn’t have them before the overthrow (or the battle before, when Ba’ath party officials were handing AK’s out on the streets).

And when the thing was written, they most certainly could fight against the state. The only thing the Brit’s had that the private citizens didn’t was cannon.

Today, as Iraq is showing, you might not be able to overthrow the government, but you can make it so they’re not really in charge. History also shows that an army is usually not willing to fire on it’s own people as much as folks would think (the armored units used in Tiannemen square were from Mongolia, for example).

[BrainGlutton]

[QUOTE=Tristan]
Today, as Iraq is showing, you might not be able to overthrow the government, but you can make it so they’re not really in charge.
[/QUOTE]

Exactly. They can make the U.S. and our puppet government unable to govern, but can’t get rid of them. All the insurgents have achieved is a worst-of-both-worlds scenario where they have neither freedom nor security. Is that what the authors of the Second Amendment had in mind?!

[ElvisL1ves]

[QUOTE=Bricker]
Wait until the Supreme Court releases their opinion in Heller, and we’ll see what it means then.
[/QUOTE]

Until that time, read the one they *already * released in Miller.

[Lumpy]

Note that the Constitution does not permit the states to have their own independent, professional state armies, except by permission of the federal congress (Article 1, Section 10). So the “militia”- armed civilians- was the ONLY source of military power available to the states. So in it’s original context the 2nd could be paraphrased as “so that the Federal Government cannot make the states powerless by disarming the populace, the right to keep and bear arms shall not be infringed”.

[DesertDog]

[QUOTE=Tristan]
The only thing the Brit’s had that the private citizens didn’t was cannon.
[/QUOTE]
In the main, yes, but among the military supplies General Gage was hoping to seize in Concord one April morning in 1775 were four stolen brass cannon. The site also mentions in passing ten iron cannon, but I can’t find out anything more about them.

I’ve also heard vaguely about a neighborhood of Swiss Militia chipping in and buying themselves an anti-aircraft gun but it sounds dubious to me.

[XT]

[QUOTE=Czarcasm]
I think we should start with the definition of “well-regulated militia” as a whole term.
[/QUOTE]

I’ve always seen it as duly constituted=well-regulated. IOW, they were thinking in terms of militia units that were authorized…as opposed to private armies constituted at the whim of anyone with enough money or power to form one. In this case the authority would be the various states.

[QUOTE=mlees]
I am not sure if this is what you are looking for:
[/QUOTE]

No…there was more to it than that. I wish I could remember where I read it…I thought it was somewhere in the Federalist papers or the notes from Madison…but I’m on the road and can’t seem to find it via google (I actually think I read it in one of my hard copy texts). If no one figures it out by the weekend I’ll see if I can dig up at least the reference…but essentially the two parts of the 2nd Amendment come from two different paragraphs detailing completely different things that were combined into one sentence…one sentence that really doesn’t make much sense since they are talking about two different things. The first part of the sentence is talking about militias and the second is talking about the rights granted to an individual.

Basically I agree with Cecil’s take on it…as well as the last part of his article:

That was then, you may say, and this is now. In the 1990s it may well be foolish, as a matter of public policy, to allow law-abiding private citizens to own guns (although I’m not persuaded this is so ed. Me either: XT). But it seems pretty clear that’s what the founders intended, and it eats at the heart of the constitutional process to simply wave that right away. No one doubts today that slavery is bad, but the constitution as written permitted it, and a duly ratified amendment was required to put the matter right. Likewise we should concede that the Second Amendment means what it seems to mean and that if we want to control guns to the point of prohibition, amending the amendment is the honest thing to do.

My addition and emphasis. I think the way that the 2nd has been skewed and stretched is dis-honest and sneaking. It’s essentially a way for the anti-gun crowd to find a back door way to get their way…instead of taking the honest and constitutional way (why the hell do we HAVE an amendment process otherwise??) of amending the Amendment. That they haven’t taken this route tells me two things…that they know they don’t have the majority support to do so, and that knowing that they have decided to take this back door way to do what they want anyway. It will be interesting to see how this pans out when the question is reviewed again by the current SC…and how folks like ElvisL1ves takes it if there is a sea change in how the courts look at the 2nd, after placidly pointing at the courts as the arbiter in the past. My guess is…not very well. I guess we’ll see…

[QUOTE=CECIL ADAMS]
Put yourself in a gun owner’s shoes. While the first half of the Second Amendment is no miracle of clarity, the second half is about as plain as it can be. “The right of the people to keep and bear arms shall not be infringed.” But gun-control advocates deny this sentence means what it seems perfectly evident it says, and the courts have backed them up. Gun owners’ recognition that one of their most cherished rights has been interpreted out of existence accounts for the apocalyptic tone in which their arguments are often framed.
[/QUOTE]

BTW, I also agree with Cecil that this doesn’t preclude gun regulation or registration (though I doubt the FF or authors of the 2nd thought in those terms). I personally have no problem with regulation or registration…as long as it’s not some back door way to try and slide the slippery slope to prohibition and banning. The problem is…how do you trust the people who are obviously gaming the system to get their way…and many of who have EXACTLY those goals in mind?

Anyway, this is getting off of the subject of the OP so I’ll leave it there for my part. I think the first part of the 2nd simply means ‘duly regulated’…i.e. authorized by a duly constituted authority, namely the states. THAT is what I think the authors meant…how we interpret it today is a bit skewed from that of course…

-XT

[DSYoungEsq]

[QUOTE=ElvisL1ves]
Until that time, read the one they *already * released in Miller.
[/QUOTE]

Put not your faith in Miller. Remember how Miller came about: the defendants in the case never actually put forth an active defense of the argument that the weapons in question should be allowed; IIRC, they never actually showed or offered any brief to the Court in the matter. So the Court was dealing with weapons owned by criminals who didn’t even attempt to defend the notion that they had a constitutional right to have the weapons in the first place.

That’s not gonna be a very persuasive opinion when brandished by later generations. :eek:

[DSYoungEsq]

[QUOTE=mlees]
I don’t understand this logic.

How did they expect any amendment forwarded to the states for ratification to get passed if it was not clear in meaning (to themselves, and the folks who were going to vote on them)?
[/QUOTE]
The same way many other such laws get passed: by using language each side can interpret as they like, thus allowing people with otherwise exclusive viewpoints to agree on the bill.

So the people who are advocates at the time of individual rights would say: this bill guarantees the feds cannot take away your guns!

And the people who are advocates of a strong central government can say: this bill will allow regulation as needed to ensure a proper militia, and the individual right to keep and bear arms is always subject to this qualification.

And they were both right!

[DSYoungEsq]

[QUOTE=Scumpup]
Well regulated defined.
[/QUOTE]

Put not your faith in the arguments of an organization that asserts that individual states do not have the right to disarm the people. :smack:

[ElvisL1ves]

[QUOTE=DSYoungEsq]
Remember how Miller came about: the defendants in the case never actually put forth an active defense of the argument that the weapons in question should be allowed; IIRC, they never actually showed or offered any brief to the Court in the matter.
[/quote]
The ruling was issued nevertheless. Do you claim it to be any less final and binding in law because of what you perceive to be a defect in it?

The topic isn’t what anybody thinks it *should * mean, but what it *does * mean. Only the Supremes are authorized to say in a way we are all bound to respect, like it or not, and they’ve done so. They may change their minds, as Bricker suggests they’re about to (and with good reason), sure, but until then, you just gotta deal with it.

That’s not gonna be a very persuasive opinion when brandished by later generations. :eek:

Isn’t the existence of a SC ruling persuasive evidence to you that such a ruling eixsts and that we are all bound by it? :dubious: Or is there some subtle point of law I’m missing here, Counselor?

[Moriarty]

Does anybody here think that the reference to the militia creates a right to be in a well-regulated militia? Is this, in any way, some right to be a citizen-soldier?

If so, does that suggest a power to limit the right to keep and bear arms to those times when one is actually in a militia, and not when one is (literally) “an army of one”?

[DSYoungEsq]

[QUOTE=ElvisL1ves]
The ruling was issued nevertheless. Do you claim it to be any less final and binding in law because of what you perceive to be a defect in it?

The topic isn’t what anybody thinks it *should * mean, but what it *does * mean. Only the Supremes are authorized to say in a way we are all bound to respect, like it or not, and they’ve done so. They may change their minds, as Bricker suggests they’re about to (and with good reason), sure, but until then, you just gotta deal with it.

Isn’t the existence of a SC ruling persuasive evidence to you that such a ruling eixsts and that we are all bound by it? :dubious: Or is there some subtle point of law I’m missing here, Counselor?
[/QUOTE]

Apparently you are missing it. Might help if you were an attorney and understood these things.

Not all “precedent” is created equal. Sometimes, even Supreme Court cases are not particularly weighty in this regard. When a later case before the same court addresses such a case, the circumstances of the prior decision often can have an effect upon how much value is given the prior decision by the current court.

Similarly, the willingness of lower courts (in this case, the Circuit Courts of Appeal) to accept as binding the prior decision will be dependant upon such things. Weak decisions will often get challenged, if not directly, then collaterally with attempts to “distinguish” the case.

So my point with my prior post was that Miller isn’t a very persuasive case. It’s now some 70 years old, it hasn’t been cited a lot (for a variety of reasons, Second Amendment cases don’t go very far in the system, mostly because the feds don’t usually get involved in weapon ownership and the states haven’t had the “right” embodied in the amendment applied to them as a concept of “liberty” protected in the 14th), and it had questionable derivation in the first place. And so, yes, I can easily see a court out there, presented with the issue squarely, ignoring Miller and formulating a different opinion. Which means, from a practical perspective, that, while still on the books, it isn’t something you want to pin a lot of hope on.

Which was the point of my post. You know, sometimes, I’m not contradicting you, though I see you again are falling back into your old habit of taking everything I say and getting all upset by it.

[ElvisL1ves]

[QUOTE=DSYoungEsq]
Not all “precedent” is created equal. Sometimes, even Supreme Court cases are not particularly weighty in this regard.
[/quote]
In the absence of anything else to guide lower court rulings, it’s all the precedent there is. And, you’ll note, the lower courts have (almost) always considered themselves guided by it.

When a later case before the same court addresses such a case, the circumstances of the prior decision often can have an effect upon how much value is given the prior decision by the current court.

Yes, and the circumstance of the SC now having a reactionary-activist majority is precisely the reason both Bricker and I suspect the ruling that has until now been considered a precedent is about to be changed.

So my point with my prior post was that Miller isn’t a very persuasive case. It’s now some 70 years old

which matters how?

it hasn’t been cited a lot (for a variety of reasons, Second Amendment cases don’t go very far in the system, mostly because the feds don’t usually get involved in weapon ownership and the states haven’t had the “right” embodied in the amendment applied to them as a concept of “liberty” protected in the 14th)

True, IOW Miller *has * been respected as authoritative, contrary to your attempt to disparage it as such

and it had questionable derivation in the first place.

That too matters how?

And so, yes, I can easily see a court out there, presented with the issue squarely, ignoring Miller and formulating a different opinion.

Which is how a reactionary-activist appeals court has embraced the aritificially-designed *Heller * case, intended exactly for the purpose of reversing that collective-right claptrap the Constitutional Convention wrote.

Which means, from a practical perspective, that, while still on the books, it isn’t something you want to pin a lot of hope on.

I’m not pinning any *hope * :dubious: on it; just pointing out that it *is * the law “on the books” until reversed or amended.

Which was the point of my post. You know, sometimes, I’m not contradicting you, though I see you again are falling back into your old habit of taking everything I say and getting all upset by it.

Cut the shit :rolleyes: . Do try to address what you’re *actually * being told, not what you would *like * to be told, okay?

[DSYoungEsq]

[QUOTE=Atomicktom]
Does anybody here think that the reference to the militia creates a right to be in a well-regulated militia? Is this, in any way, some right to be a citizen-soldier?

If so, does that suggest a power to limit the right to keep and bear arms to those times when one is actually in a militia, and not when one is (literally) “an army of one”?
[/QUOTE]

That concept (that the amendment involves making sure you have the arms needed to be an effective member of the militia) is the fundamental basis of the decision in the Miller case that ElvisL1ves was beating me about the head and neck with. Indeed, it’s the whole point behind the fundamental interpretation question: is the Second Amendment an affirmation of a personal right to own a gun, or is it an affirmation only of the limitation of the federal government from interfering in state militias? Clearly, if the Second Amendment didn’t have the qualifying first clause, then the answer would have to be that the amendment creates a personal right to a gun. It’s those pesky first few words that create difficulties for us.

I don’t think you can argue that the amendment creates the “right” to be in a militia. First of all, as people earlier in the thread have pointed out, the “militia” (a descendant of the ancient “fyrd” of the Saxons) wasn’t something that existed by “right,” but rather by force of law. If you were old enough, and male, you were part of the militia. But the militia wasn’t some private organization of people who did what they pleased. Rather, it was the legal home defense, authorized and run by the officials of the state (here, the word state meaning governing body for your territory). So you are either in it or not, depending upon three things: age, gender, and existence of the milita in the first place.

Which is the point I made in reference to the post by Scumpup. The state certainly doesn’t have to allow the existence of a “militia.” It might well decide to utilize other means to defend itself (can anyone say “standing army?”). But with our constitution, clearly the federal government is precluded from preventing the existence of “state” militias (where here the word “state” is used to mean our 50 political subdivisions). So if you mean by “right to be in a well-regulated militia” the idea that the state of, say, New York has the right to have such a militia, my answer is yes, the amendment implies this right. But you, the individual living in New York have no right to create such a militia if New York doesn’t want it to exist. IMHO.

For what it is worth, most people now concede that the amendment provides individuals with the right to own and carry “arms” as respects the federal government. Which means that the real issue with the amendment becomes: “What exactly are ‘arms’?”

[DSYoungEsq]

Elvis, what part of “my prior post wasn’t a contradiction of what you said” did you fail to comprehend? Can you understand that all I was doing was saying that “while Miller may be the last word to date, it probably isn’t of as much value as if it had had a good procedural run up?” How does this upset you so?

If you are going to go back to your mode of attacking every post I make without worrying about what was really said, I’ll have to go back to my mode of simply not paying attention to things you say. I had enjoyed not having to do that for a while now.

[ElvisL1ves]

[QUOTE=DSYoungEsqCan you understand that all I was doing was saying that “while Miller may be the last word to date, it probably isn’t of as much value as if it had had a good procedural run up?” How does this upset you so?[/quote]
The lecture you provided trying to explain the opposite. Explained by, I might add, this total non sequitur: “For what it is worth, most people now concede that the amendment provides individuals with the right to own and carry “arms” as respects the federal government.”

IOW, you’re trying to take both sides of an argument so you can always claim you’re right. Perhaps that works in court, but not here. Dishonest arguments don’t upset me, though, really - but add condescension and you’re there.

If you are going to go back to your mode of attacking every post I make without worrying about what was really said

Projection. :rolleyes:

[ExTank]

[QUOTE=BrainGlutton]
It means not even the people who drafted it were clear on what it was supposed to be for.

It means, “We’re a cowardly bunch of weasel-wording wusses who are going to pass our inability to make a coherent political settlement on to future generations.”
[/quote]

Cite?

C’mon, just one quote from one of the folks who worked on the Constitution and Bill of Rights, essentially asking, “Prithee, good sirrah, might thou tellest me what exactly doth this mean?”

Or something like, “Bugger all this for a lark! In one or two centuries at most, none of this will amount to a mound of shite. Just put somme damned wordes on this parchment, and then let us adjourn to ye olde public house!”