SECOND AMMENDMENT EXPLAINED;
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SECOND AMMENDMENT EXPLAINED;Quoting: Anonymous Coward 30173936
Amendment II. 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.
there are 3 parts.
the first part; A well regulated militia.
ever see the movie 'red dawn', where russians invade the usa ???
there are 2 requirements to be in the milita; the physical ability to bear arms, and the willingness to fight for your life and property, and your family and friends.
any man, woman, and strong child, is in the milita, if they meet these 2 requirements.
and "well regulated" ????????
we are not allowed to possess FULLY AUTOMATIC WEAPONS.
that is the "well regulated" part.
part 2; being necessary to the security of a free state,
this means you cannot have a 'free state' under tyranny.
if there is tyranny, guns are the answer to tyranny.
part 3; the right of the people to keep and bear arms, shall not be infringed.
if you can't figure this part out, no explaination will help you.
Regulated does not mean you're not allowed to own fully automatic weapons. Do not confuse the people with what is your Opinion.
[link to www.guncite.com]
Last Updated: 5/6/2007 GunCite Home
The Meaning of the Words in the Second Amendment
The Second Amendment:
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 word "militia" has several meanings. It can be a body of citizens (no longer exclusively male) enrolled for military service where full time duty is required only in emergencies. The term also refers to the eligible pool of citizens callable into military service. (dictionary.com)
The federal government can use the militia for the following purposes as stated in Article I, Section 8 of the Constitution:
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
Is today's National Guard the militia? It is a part of the well-regulated militia. (As mentioned in GunCite's, The Original Intent and Purpose of the Second Amendment, it was not the intent of the framers to restrict the right to keep arms to only those serving active militia duty.)
For a definition of today's militia as defined, by statute, in the United States Code, click here.
A militia is always subject to federal, state, or local government control. A "private" militia or army not under government control could be considered illegal and in rebellion, and as a result subject to harsh punishment. (See Macnutt, Karen L., Militias, Women and Guns Magazine, March, 1995.)
Some argue that since the militias are "owned," or under the command of the states, that the states are free to disarm their militia if they so choose, and therefore of course no individual right to keep arms exists. The Militia is not "owned," rather it is controlled, organized, et. cetera, by governments. The federal government as well as the states have no legitimate power to disarm the people from which militias are organized. Unfortunately, few jurists today hold this view. (See Reynolds, Glen Harlan, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461-511 .)
A brief summary of early U.S. militia history.
The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:
1) To control or direct by a rule, principle, method, etc.
2) To adjust to some standard or requirement as for amount, degree, etc.
3) To adjust so as to ensure accuracy of operation.
4) To put in good order.
b. Of troops: Properly disciplined. Obs. rare-1.
1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.
We can begin to deduce what well-regulated meant from Alexander Hamilton's words in Federalist Paper No. 29:
The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.
--- The Federalist Papers, No. 29.
Hamilton indicates a well-regulated militia is a state of preparedness obtained after rigorous and persistent training. Note the use of 'disciplining' which indicates discipline could be synonymous with well-trained.
This quote from the Journals of the Continental Congress, 1774-1789 also conveys the meaning of well regulated:
Resolved , That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army.
--- Saturday, December 13, 1777.
In the passage that follows, do you think the U.S. government was concerned because the Creek Indians' tribal regulations were superior to those of the Wabash or was it because they represented a better trained and disciplined fighting force?
That the strength of the Wabash Indians who were principally the object of the resolve of the 21st of July 1787, and the strength of the Creek Indians is very different. That the said Creeks are not only greatly superior in numbers but are more united, better regulated, and headed by a man whose talents appear to have fixed him in their confidence. That from the view of the object your Secretary has been able to take he conceives that the only effectual mode of acting against the said Creeks in case they should persist in their hostilities would be by making an invasion of their country with a powerful body of well regulated troops always ready to combat and able to defeat any combination of force the said Creeks could oppose and to destroy their towns and provisions.
--- Saturday, December 13, 1777.
I am unacquainted with the extent of your works, and consequently ignorant of the number or men necessary to man them. If your present numbers should be insufficient for that purpose, I would then by all means advise your making up the deficiency out of the best regulated militia that can be got.
--- George Washington (The Writings of George Washington, pp. 503-4, (G.P. Putnam & Sons, pub.)(1889))
The above quote is clearly not a request for a militia with the best set of regulations. (For brevity the entire passage is not shown and this quote should not be construed to imply Washington favored militias, in fact he thought little of them, as the full passage indicates.)
But Dr Sir I am Afraid it would blunt the keen edge they have at present which might be keept sharp for the Shawnese &c: I am convinced it would be Attended by considerable desertions. And perhaps raise a Spirit of Discontent not easily Queld amongst the best regulated troops, but much more so amongst men unused to the Yoak of Military Discipline.
--- Letter from Colonel William Fleming to Col. Adam Stephen, Oct 8, 1774, pp. 237-8. (Documentary History of Dunmore's War, 1774, Wisconsin historical society, pub. (1905))
And finally, a late-17th century comparison between the behavior of a large collection of seahorses and well-regulated soldiers:
One of the Seamen that had formerly made a Greenland Voyage for Whale-Fishing, told us that in that country he had seen very great Troops of those Sea-Horses ranging upon Land, sometimes three or four hundred in a Troop: Their great desire, he says, is to roost themselves on Land in the Warm Sun; and Whilst they sleep, they apppoint one to stand Centinel, and watch a certain time; and when that time's expir'd, another takes his place of Watching, and the first Centinel goes to sleep, &c. observing the strict Discipline, as a Body of Well-regulated Troops
--- (Letters written from New-England, A. D. 1686. P. 47, John Dutton (1867))
The quoted passages support the idea that a well-regulated militia was synonymous with one that was thoroughly trained and disciplined, and as a result, well-functioning. That description fits most closely with the "to put in good order" definition supplied by the Random House dictionary. The Oxford dictionary's definition also appears to fit if one considers discipline in a military context to include or imply well-trained.
What about the Amendment's text itself? Considering the adjective "well" and the context of the militia clause, which is more likely to ensure the security of a free state, a militia governed by numerous laws (or the proper amount of regulation [depending on the meaning of "well"] ) or a well-disciplined and trained militia? This brief textual analysis also suggests "to put in good order" is the correct interpretation of well regulated, signifying a well disciplined, trained, and functioning militia.
And finally, when regulated is used as an adjective, its meaning varies depending on the noun its modifying and of course the context. For example: well regulated liberty (properly controlled), regulated rifle (adjusted for accuracy), and regulated commerce (governed by regulations) all express a different meaning for regulated. This is by no means unusual, just as the word, bear, conveys a different meaning depending on the word it modifies: bearing arms, bearing fruit, or bearing gifts.
Security of a Free State
Most likely "security of a free State" is synonymous with "security of a free country," as opposed to security of one of the States of the Union against federal oppression (see UCLA law professor Eugene Volokh's commentary).
As ample evidence illustrates below, the people, as referred to in the Constitution at the time it was written, was synonymous with citizens. Also shown below, some scholars mistakenly assume that when the Constitution refers to "the people," a collective right or entity is referenced. However, that notion is incorrect. When the term "the people" is used, it could be referring to a right that is exercised individually, collectively, or both, depending on context. Of course, the meaning of the term "the people" is the same regardless.
Why wasn't "person" or "persons" used instead of "the people" when enumerating certain individual rights? "Persons," as referred to in the Constitution, signified a wider class of people than citizens. Persons included slaves. For example, Article 2, clause 3 of the Constitution refers to slaves as persons, but they were never considered as citizens or a part of the people: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." (U.S. Constitution)
The Fourth Amendment of the Bill of Rights begins:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
"The people" in the Fourth Amendment obviously refers to an individual right. (The phrase "in their persons" means people themselves [their bodies] cannot be unreasonably seized or searched. Compare the 14th Amendment from Virginia's proposed declaration of rights to the Constitution [also written by James Madison] to the 4th Amendment: "That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers..." "Persons" in the 4th Amendment is used to match the plural "people.")
One of James Madison's proposed amendments:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
Would anybody in their right mind suggest Madison proposed a collective right to speak, write, or publish their thoughts?
Looking at other declarations of rights from the time clearly shows "the people," being used in conjunction with the enumeration of indvidual rights.
For example, Article XIII of Pennsylvania's 1776 Declaration of Rights states:
"That the people have a right to bear arms for the defence of themselves and the state..."
Article XII from the same declaration says:
"That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained."
In both of the above examples, "the people" means each citizen. Would anyone seriously suggest that Article XII protects only a "collective right," or that the people's freedom of speech and writing is limited to those who posses a printing press or to works appearing in the news media?
Yet, there are those claiming "it is far from obvious that the meaning of the phrase 'defense of themselves' should be interpreted as a statement of individual rights.'" (Saul Cornell, "Don't Know Much About History" at p. 674. See also pp. 675-77.)
Cornell states, "One of the most serious problems with individual rights theory is that it makes it impossible to understand why some states embraced a new formulation of the right to bear arms in the nineteenth century. Rather than assert a right to 'bear arms for the defense of themselves and the state,' the new Jacksonian constitutional formulation of this right asserted that 'each person has a right to bear arms in defense of himself and the state.' Indeed, the shift in language between the Founding Era and the Jacksonian period itself provides one of the best arguments against reading the earlier languague as advancing an individual right. There would have been little need to adopt the new formulation if the old one were widely understood to protect an individual right." (Cornell, St. George Tucker and the Second Amendment at pp. 1140-41)
Unfortunately for anti-individual rights advocates the historical record refutes "one of the best arguments:"
Pennsylvania kept that same clause in a 1790 revision as follows: "That the right of the citizens to bear arms in defense of themselves and the state shall not be questioned." James Wilson, president of the convention which adopted that provision, a leading Federalist, and later Supreme Court Justice, explained it in a discussion of homicide "when it is necessary for the defence of one's person or house." He continued:
it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. "The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. "They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom, and of their own persons." [Web source of Wilson quote]
(Stephen Halbrook, St. George Tucker's Second Amendment at p. 18)
For further refutation of the notion that "in defense of themselves" was referring to a collective right or one that was entirely military see Randy Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? at pp. 22-3.
Again looking at Virginia's proposed declaration of rights, from the preamble:
"That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following;"
"That the people have a right to freedom of speech, and of writing and publishing their Sentiments; but the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated."
Article Sixteen enumerates rights that clearly can be exercised indvidually.
Roger Sherman's draft bill of rights clearly refers to individual rights when referring to the rights of the people (article 2 [at 983]), (Sherman was a Founder, Senator, and lawyer):
"The people have certain natural rights which are retained by them when they enter into Society, such are the rights of Conscience in matters of religion; of acquiring property and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united states."
From the Articles of Confederation:
"The people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce..."
Hopefully the reader does not interpret the above as referring to a collective right to travel.
Yet, Yale law professor Akhil Amar claims, "when the Constitution speaks of 'the people' rather than 'persons,' the collective connotation is primary" (Second Thoughts: What the right to bear arms really means). Amar's theory unravels when looking at all of the evidence. He tries to reconcile a portion of it writing, "The Fourth Amendment is trickier... And these words obviously focus on the private domain, protecting individuals in their private homes more than in the public square. Why, then, did the Fourth use the words 'the people' at all? Probably to highlight the role that jurors--acting collectively and representing the electorate--would play in deciding which searches were reasonable and how much to punish government officials who searched or seized improperly."
Amar's reasoning might sound plausible in today's context, however he fails to provide an appropriate example. In 1789 jurors did not issue warrants or determine whether a search was reasonable and they could not "punish government officials who searched or seized improperly." There was no method of suing the government in 1789 for damages resulting from the violation of civil rights. Also Amar fails to explain Madison's draft amendment protecting the people's right to speak and write, mentioned above.
Regardless of what the duties and responsibilities of juries were in 1789, Amar apparently does not realize that in the Constitution, person, without further qualification, refers to a wider class of individuals than the people.
Some individual rights were protected for collective purposes, the Second Amendment being one of them. However this doesn't transform the individual right into a collective right belonging to the states or the militia. Keeping arms was a right that could be exercised individually or collectively.
Compare Amar's opinion with that of Harvard law professor Laurence Tribe's:
[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by ? 1 of the Fourteenth Amendment against state or local government action.
(Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000] [emphasis added]. [Online references here and here.])
Even this anti-individual right law journal article finds, "As to the broader context of usage within the Constitution and the Bill of Rights, those documents use "the people" in both senses: sometimes collectively, sometimes individually." (Also see note 5 for further discussion, concluding, "In short, contrary to claims often made on both sides of the debate, the Second Amendment's reference to 'the people' does not, simply as a textual matter, commit us to either an individual or a collective right interpretation of the Amendment.")
Lastly, even the Supreme Court agrees on the meaning of "the people" as used in the Constitution and the Bill of Rights.
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included..." (Dred Scott v. Sandford, 60 U.S. 393 )
And the dissent agrees:
"If we look into the Constitutions and State papers of that period, we find the inhabitants or people of these colonies, or the inhabitants of this State, or Commonwealth, employed to designate those whom we should now denominate citizens."
In Adamson v. California, 1947) the Supreme Court refers to the Bill of Rights as protecting individual rights:
"The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government..."
And again the dissent agrees:
"The first 10 amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties."
More recently the Supreme Court comments on what "the people" may mean today and its distinction from "person:"
'[T]he people' seems to have been a term of art employed in select parts of the Constitution... While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community... (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases." (U.S. v. Verdugo-Urquidez, 494 U.S. 259 )
To "keep" arms means keeping one's own, private, arms. For example, in response to Madison's proposed amendments, Samuel Nasson, an Antifederalist representative to the Massachusetts ratification convention, in a letter to George Thatcher, a Federalist Representative from Massachusetts, wrote:
I find that Amendments are once again on the Carpet. I hope that such may take place as will be for the Best Interest of the whole[.] A Bill of rights well secured that we the people may know how far we may Proceade in Every Department[,] then their [sic] will be no Dispute between the people and rulers[.] n that may be secured the right to keep arms for Common and Extraordinary Occations such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy[.] [Y]ou know to learn the Use of arms is all that can Save us from a forighn foe that may attempt to subdue us[,] for if we keep up the Use of arms and become well acquainted with them we Shall allway be able to look them in the face that arise up against us[,] for it is impossible to Support a Standing armey large Enough to Guard our Lengthy Sea Coast...I think the man that Enters as a Soldier in a time of peace only for a living is only a fit tool to enslave his fellows. (July 9, 1879) (See U.S. v. Emerson and Halbrook)
"The above is the only known correspondence from a constituent to a Congressman which explained the understanding of the proposal that became the Second Amendment (source)." It is clear that Nasson read a broad personal right to keep arms in the proposed amendment, unconditioned upon militia service, and that familiarity and practice with arms enabled the citizenry to effectively oppose an invasion or tyranny by a standing army.
For refutation of claims that "keep" was not intended to guarantee a private right to arms, see Guncite's "Is there Contrary Evidence?"
To Bear Arms
"Bearing arms," throughout the 18th century, most likely meant to serve as a soldier or to fight (including bearing arms against another man in individual self-defense). Where the term "bear arms" appears, itself, without further modifiers it did not infer a broader meaning such as hunting or the mere carrying or wearing of arms.
For example, Roger Sherman, during House consideration of a militia bill (1790) refers to bearing arms as an individual right of self-defense (against other individuals) as well as a right belonging to the states:
[C]onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3.
Thus the term bearing arms was understood as not referring exclusively to military service.
Although without modifying terms, as mentioned above, bearing arms probably did not refer to the mere carrying or hunting with arms.
The Second Amendment as passed by the House of Representatives read:
A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. (source)
In the conscientious objector clause, "bearing arms" clearly conveys an exclusively military or fighting connotation, and thus it would seem "to bear arms" also has a military meaning. Otherwise, we are talking about different meanings associated with the same word within the same amendment. Highly improbable, especially since most of the framers were lawyers.
If one examines the House discussion of the proposed Second Amendment, it is clear that bearing arms could only have meant military service or fighting. Quakers, as mentioned in the House discussion, were scrupulous of bearing arms. Quakers were allowed to hunt (source), but were opposed to "war against any man" (source).
Further, the comments of Representative Vining (from the House discussion) show that bearing arms was synonymous with fighting:
Mr. Vining hoped the clause would be suffered to remain as it stood, because he saw no use in it if it was amended so as to compel a man to find a substitute, which, with respect to the Government, was the same as if the person himself turned out to fight (source).
Note, the drafters did not use "keeping and bearing" in connection with the conscientious objector clause, although they obviously could have.
Some would argue that serving in a militia wasn't a right, but a duty. In the 18th century it was considered both, as the evidence from two state constitutional provisions (source) unambiguously illustrates:
North Carolina (1776) (unchanged until 1868): "That the people have a right to bear arms, for the defence of the State..."
Massachusetts: (1780): The people have a right to keep and to bear arms for the common defence.
Comments from Tench Coxe provide further evidence:
Coxe noted that Pennsylvania excluded free Blacks from "the right to enter militia and to partake of public arms," and that the states "deny them the use of the public arms (source)."
Since the 18th century was filled with war, one might counter that, of course, when the term "bearing arms" was used without accompanying modifiers, its use always referred to martial activities, and as a result there weren't opportunities to refer to bearing arms in a broader context. However, as some of the above examples illustrate, the term was often used where a broader meaning, such as mere carrying, could not be derived (eg., scrupulous of bearing arms). Further, there was plenty of opportunity to use "bearing arms" in a context similar to carrying, but it doesn't appear to have been used that way. "Bearing arms" was used in statutes to forbid blacks or Indians from serving or enrolling in the militia, however when referring to civilian gun use by these same persons, terms such as keep and carry were used. (For example, see St. George Tucker's use of the term "bear arms" and "carrying any gun" in this passage.)
Often, the following, in this case excerpted from U.S. v. Emerson (see Part V [Second Amendment], C [Text], 1 [Substantive Guarantee], b [Bear Arms]), is used as an attempt to show bearing arms was synonymous with carrying:
Also revealing is a bill drafted by Thomas Jefferson and proposed to the Virginia legislature by James Madison (the author of the Second Amendment) on October 31, 1785, that would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty."
To bear a gun or bear an arm is a different construction than bearing arms. The former normally refers to the mere carrying of arms rather than actual military service or fighting with arms.
Another, more seriously erroneous, example, also cited by Emerson and others:
A similar indication that "bear arms" was a general description of the carrying of arms by anyone is found in the 1828 edition of Webster's American Dictionary of the English Language; where the third definition of bear reads: "[t]o wear; to bear as a mark of authority or distinction, as, to bear a sword, a badge, a name; to bear arms in a coat."
Concealing a gun in a coat could hardly be considered a mark of authority or distinction. The above reference to "coat," refers to a coat of arms. In the same 1828 dictionary, one of the definitions given for coat is a coat of arms (source). To bear arms in a coat referred to a coat of arms containing some form of arms (example).
The fifth item for the word, bear, in the Johnson Dictionary which precedes Webster's by several decades (1755), gives the following definition for bear:
To carry as a mark of distinction. So we say, to bear arms in a coat.
Once again, especially in 1755, carrying a gun inside a coat was not a mark of distinction. The far more likely reference is to a coat of arms.
History professor Robert Shalhope expresses the same concept of keep and bear as described above:
"Americans of the Revolutionary generation distinguished between the individual's right to keep arms and the need for a militia in which to bear them. Yet it is equally clear that more often than not they considered these rights inseparable." Shalhope then refers to James Madison's Federalist No. 46 where "Madison drew the usual contrast between the American states, where citizens were armed, and European nations, where governments feared to trust their citizens with arms. Then he observed that 'it is not certain that with this aid alone [possession of arms], they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it.'" (The Ideological Origins of the Second Amendment at p. 611)
Neither was Shalhope's law journal article the first to express such a view (see The Constitutional Right to Keep and Bear Arms, Harvard Law Review, (1915), by Lucilius Emery).
In Colonial times "arms" usually meant weapons that could be carried. This included knives, swords, rifles and pistols. Dictionaries of the time had a separate definition for "ordinance" (as it was spelled then) meaning cannon. Any hand held, non-ordnance type weapons, are theoretically constitutionally protected. Obviously nuclear weapons, tanks, rockets, fighter planes, and submarines are not.
This off-site essay offers a differing and reasonable view that arms in the late 18th Century did mean the full array of arms and offers how that definition can be applied today "honestly (and constitutionally)."
 For some strange reason, many gun-rights activists insist that the National Guard is not a militia. This just plays into the hands of those claiming the Second Amendment is obsolete, in-part, because there is no longer a mlitia (also it mistakenly lends credence to the idea that gun ownership is predicated on militia membership).
When in the service of the states, guardsmen function as militia. Once a member of a State Guard unit is ordered into active military service of the United States, that person is no longer under the command of, or serving, a State Guard unit (until they are relieved from federal service), but is now a member of the army. (See the Supreme Court case Perpich v. Department of Defense, 496 U.S. 334 (1990). Perpich also provides a brief but good explanation of the evolution of the National Guard statutes.)
In other words, even today, the states still maintain a militia system, however the federal government, at this time is not utilizing the state militias, as militias, when state militia members are called into federal service.
Typical objections to the contention that the National Guard, when in the service of the states, is not a milita:
The National Guard is authorized by federal legislation and supported, and armed, entirely by federal funds.
The source of a militia's funding is irrelevant as to whether an organization is considered a militia. Rufus King, a Massachusetts delegate to the Constitutional Convention of 1787, when discussing the meaning of the Militia Clause in the Constitution said, "arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury..." (Elliot's Debates) This founder's statement clearly shows that regardless of how the militia was armed, it was still a militia.
Nowadays civilians are generally not allowed to keep military arms, but that is a separate issue. Originally, regardless of how the militia was armed, the Second Amendment was ratified to ensure the right of the people to keep their own arms (after all, federally supplied arms could be withdrawn).
Gubernatorial consent is not necessary for Congress to call state guard troops into active duty training
Normally yes, however the governor does have veto power in certain cases. The following is from Perpich:
"The Montgomery Amendment deprives the Governors of the power to veto participation in a National Guard of the United States training mission on the basis of any objection to "the location, purpose, type, or schedule of such active duty." 10 U.S.C. 672(f). Governors may withhold their consent on other grounds. The Governor and the United States agree that if the federalization of the Guard would interfere with the State Guard's ability to address a local emergency, that circumstance would be a [496 U.S. 334, 352] valid basis for a gubernatorial veto."
"Under the interpretation of the Montgomery Amendment advanced by the federal parties, it seems that a governor might also properly withhold consent to an active duty order if the order were so intrusive that it deprived the State of the power to train its forces effectively for local service."
"Under the current statutory scheme, the States are assured of the use of their National Guard units for any legitimate state purpose. They are simply forbidden to use their control over the state National Guard to thwart federal use of the NGUS for national security and foreign policy objectives with which they disagree."
Congressional statute allows states to form a militia that is exempt from being drafted into federal service. If the State National Guard is the modern militia, then how does the separate state militia fit into the mix?
Of course the National Guard is a part of the militia and so are the state defense forces, but, again from Perpich:
"The Governor contends that the state defense forces are irrelevant to this case because they are not subject to being called forth by the National Government and therefore cannot be militia within the meaning of the Constitution. We are not, however, satisfied that this argument is persuasive. First, the immunity of those forces from impressment into the national service appears - if indeed they have any such immunity - to be the consequence of a purely statutory choice...Second, although we do not believe it necessary to resolve the issue, the Governor's construction of the relevant statute is subject to question. It is true that the state defense forces 'may not be called, ordered, or drafted into the armed forces.' 32 U.S.C. 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. 331-333, which distinguish the 'militia' from the 'armed forces,' and which appear to subject all portions of the 'militia' - organized or not - to call if needed for the purposes specified in the Militia Clauses."
As Perpich notes, even individual members of state self-defense forces are not exempt from a draft (see sec d).
Since the Founding, there was nothing in the Constitution preventing individual militia members from being conscripted into the armed services. Today, it's easier to enlist a larger portion of the militia into the armed services, but apparently, at least according to Perpich, the states are still entitled to have the bulk of their militia (State National Guard) left intact.
(The Supreme Court in MARYLAND v. U.S. (1965) held, "The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.")
Thus, the National Guard, when in the service of the states, functions exacly as militia, period. The dual status is certainly a twist, but there are built-in checks so the states can still maintain their militia.
 Political science professor Robert Spitzer claims the first law journal article to advocate an individual rights interpretation was not published until 1960 (Lost and Found: Researcing the Second Amendment at p. 366) incorrectly reporting Emery's intepretation from the 1915 journal article cited above.
Spitzer writes, the 1960 article "asserted that the Second Amendment supported an individual or personal right to have firearms (notably for personal self-defense), separate and apart from citizen service in a government militia. The second novel argument was that the Second Amendment created a citizen 'right of revolution.'"
Apparently overlooked by Spitzer, Emery's article also writes about this "novel" idea:
But, however concise the language of the provision, it should be construed in connection with the well-known objection to standing armies and the general belief in the need and sufficiency of a well-regulated militia for the defense of the people and the state. Thus construed it is a provision for preserving to the people the right and power of organized military defense of themselves and the state and of organized military resistance to unlawful acts of the government itself, as in the case of the American Revolution.
Spitzer also misinterprets Emery's view of the right to bear arms as if he were writing about the entire Second Amendment:
Authored by noted constitutional scholar Lucilius Emery... Emery quotes Presser, and concludes that "only persons of military capacity to bear arms in military organizations are within the spirit of the guaranty [i.e., the Second Amendment]." Emery ends by saying that "the carrying of weapons by individuals may be regulated, restricted, and even prohibited according as conditions and circumstances may make it necessary for the protection of the people." Emery's article was widely reprinted.
Note that Spitzer has inserted the comment "i.e., the Second Amendment," in brackets, when Emery writes of the "guaranty." However Emery is specifically referring to bearing arms rather than keeping arms ("keep" is addressed in a proceeding paragraph and discussed here shortly).
Spitzer, by ignoring Emery's comments on the meaning of keep, erroneously concludes the article reflects:
What is here labeled the "court" view of the Second Amendment - namely, that the Second Amendment affects citizens only in connection with citizen service in a government-organized and regulated militia.
Emery's comments regarding "the guaranty:"
The constitutional guaranty of a right to bear arms does not include weapons not usual or suitable for use in organized civilized warfare, such as dirks, bowie knives, sling shot, brass knuckles, etc., and the carrying of such weapons may be prohibited. Only persons of military capacity to bear arms in military organizations are within the spirit of the guaranty. Women, young boys, the blind, tramps, persons non compos mentis, or dissolute in habits, may be prohibited from carrying weapons. All persons may be forbidden to carry concealed weapons. Military arms may not be carried in all places even by persons competent to serve in the militia. They may be excluded from courts of justice, polling places, school houses, churches, religious and political meetings, legislative halls and the like. (emphasis added)
However, the paragraph prior to the above states:
From the foregoing premises I think there are deducible several propositions as to the power of the legislature to restrict and even forbid carrying weapons by individuals, however powerless it may be as to the simple possessing or keeping weapons (emphasis added).
The last sentence in the article concludes:
In fine, I venture the opinion that, without violence to the constitutional guaranty of the right of the people to bear arms, the carrying of weapons by individuals may be regulated, restricted, and even prohibited according as conditions and circumstances may make it necessary for the protection of the people.
Once again Emery states severe restrictions may be placed on the "guraranty" of the right to bear arms, not the Second Amendment as a whole. Legislatures were "powerless" to restrict or prohibit weapons possession. Therefore, it is obvious Emery makes a distinction between keeping and bearing arms rather than viewing the phrase as "unitary." In Emery's view, the keeping of arms is not necessarily connected "with citizen service in a government-organized and regulated militia."
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12/18/2012 12:00 AM
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It is my opinion, that if the DHS and national guard are allowed belt-fed weapons, tanks that shoot microwave beams into crowds, RC airplanes that carry bombs, citizens should be allowed those things too.
Personally, I'd like everyone in the world to hand in their weapons, but the world is not a peaceful place so everyone needs to be armed.
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12/18/2012 12:21 AM
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Not to quibble with what is otherwise a great post. But my understanding of the term well regulated in the context and language of the time meant that the firearm be in good working order (well maintained) and that everything necessary to use that firearm was available and ready.Quoting: Anonymous Coward 30173936
Fully automatic weapons were freely available to Americans until 1934. They still are today with a license.
thanx for the info !!
we can't have tanks or nukes or bio weapons, either.
part 3; the right of the people to keep and bear arms, shall not be infringed.
'keep' means they do not take them away, you can keep them.
'bear' means carry.
'shall not be infringed' means 'keep'
You need to study more before you "explain" your ignorance to people.
Well regulated meant "to make regular, in good working order". The "regulation" we have now is government control of every part of your life. Big difference.
The militia in the War for Independence had BETTER arms than the soldiers they fought. The British were armed with Brown Bess smooth bore muskets.
Many of the colonists, and Rogers Rangers, carried RIFLES, which are far more accurate and deadly.
So by your reasoning, to follow the founders intent, the second amendment guarantees the right of citizens to have BETTER arms than the military.
And as far as tanks, the last tank militia (you heard that right, look it up) was disbanded in 1955 in Massachusetts!!!
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12/18/2012 12:34 AM
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12/18/2012 12:44 AM
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Ban cars before guns, imo. The stats are staggering. Jist a few keystrokes and a couple of.clicks on the ole google machine... Agendas are strong with this new media propagation..jist another wave, of regurgitation and retardation... Human wave propagation distribution.
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12/18/2012 12:59 AM
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an argument by a friend. might interest youQuoting: andreidita
"Here is hard data. The United States has 88.8 guns for every 100 people in the country, the homicide rate by firearm is 2.97 per 100,000 population. The theory is that if we reduce US gun ownership of firearms there will be fewer murders by firearms—whether their will be more murders by other methods is generally ignored.
So, how does gun ownership correlate with murder by fire arms? Anguilla has "no" firearms but their homicide rate by firearms is 7.15. Argentina is at 3.02 with only 10.2 firearms per 100. The Bahamas have a only 5.3 guns per 100,000 with 15.37 firearm deaths per 100,000 population. I will mention Bangladesh because their gun ownership is 1/2 per 100 people yet their death by firearms are still 1.12 per 100,000. In Barbados only 7.8 people out of 100 own firearms, but the rate was 2.99. In Belize there is only 1 firearm for every ten people, yet the homicide rate by firearm is 21.82. In Brazil only 8 weapons per 100 people exist, yet the firearm homicide rate is 18.1. Canada, by the way, has a relatively high fire ownership rate (30.8) in international terms, yet has a low death by firearm rate (0.51). Chile has 10.7 weapons per 100 people yet a homicide by firearm rate of 2.16 per 100000. Colombia has only 5.9 weapons per 100 people yet the firearm homicide rate is 27.09. The Democratic Republic of the Congo has gun ownership rate that is a tiny 1.4 weapons per 100 people, yet the firearm homicide rate is 1.56. The first number is a tiny fraction of the US number yet the homicide rate by firearm is a difference of about 1 person per 100000 people. Costa Rica has a firearm homicide rate of 4.59, well above the US, but a gun ownership rate of 9.9 per 100, well below the US. Croatia and Cyprus have relatively high gun ownership rates (21.7 and 36.4 respectively) but relatively low firearm homicide rates: 0.39 and 0.46. Ecuador has an ownership rate of just 1.3 per 100, but the firearm homicide rate is more than four times higher than the United States; 12.73.In El Salvador the ownership rate is just 5.8, but the firearm homicide rate is 39.9. Finland and France both have relatively high gun ownership rates—45.3 and 31.2—by international standards and very low firearm homicide rates: 0.45 and 0.06. Ditto for Germany with 30.3 firearms per 100, and firearm homicide rates of 0.19 per 100,000.The same is true for Greece with 22.5 weapons per 100, but 0.26 per 100,000 in firearm homicides.
Guatamala, on the other hand has a high homicide rate of 34.81 per 100,000 but a relatively low firearm ownership rate; just 13.1 per 100. Guyana is in the same boat with firearm ownership of just 14.6 per 100, but firearm homicides at 11.46 per 100,000. Hondurs may be the worst in disparity with 68.42 deaths by firearms per 100,000 people, but with only 6.2 firearms per 100 people.Iceland, where about 1/3rd of all people have a firearm (30.3) has a firearm homicide rate of 0. Jamaica has 8.1 weapons per 100 people, but a homicide rate of 39.4. New Zealand has a firearm ownership rate of 22.6 per 100, but the homicide rate is only 0.16. In contrast, Nicaragua has only 7.7 weapons per 100, yet the firearm homicide rate is 5.92. In Norway 31.3 weapons are in private hands per 100 people, yet the homicide rate by firearms is just 0.05 per 100,000. Panama has a firearm ownership rate well below the US, 21.7%, but a homicide rate well above the US; 16.18. In Serbia 37.8 of people have a firearm, but the homicide rate is 0.46.In Sierre Leone almost no one owns a firearm, 0.6%, yet the firearm homicide rate is similar to that in the US, 2.28. South Africa has only 12.7 guns per 100 people but 17.03 per 100,000 is the firearm homicide rate.
Sweden and Switzerland have relatively high gun ownership rates; 31.6 and 45.7. They also have relatively low firearm homicide rates; 0.41 and 0.77. Trinidad, with just 1.5 guns per 100, should be paradise but it has 27.31 firearm homicides per 100,000.In Venezuela, that socialist paradise, guns are restricted to 10.7 per 100 people, but the firearm homicide rate is 28.97. And Zimbabwe, with a lower ownership rate of just 4.4 per 100 has a higher firearm homicide rate of 4.78.
Now, these numbers come from the Guardian who got them from the UN. The survey is skewed against guns because it only looks at homicides by firearm instead of the total homicides from all causes. What we see is that some nations have very low rates of gun ownership yet have high rates of murder by firearm and other countries have relatively high rates of gun ownership yet very low rates of firearm related homicides. These numbers are so all over the place I don't think there is a statistical correlation. What this tells us is that the homicide rate by firearms is far more complex than simply whether or not people own guns."
So all of the mass shooting in the US have nothing to do with the level of gun ownership, it's just that the country is fucked up with too many psychopaths?
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12/18/2012 01:01 AM
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12/18/2012 01:07 AM
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What we see is that some nations have very low rates of gun ownership yet have high rates of murder by firearmQuoting: andreidita
and other countries have relatively high rates of gun ownership yet very low rates of firearm related homicides. These numbers are so all over the place I don't think there is a statistical correlation. What this tells us is that the homicide rate by firearms is far more complex than simply whether or not people own guns."
the 'statistical correlation' is;
armed victims shoot back.
either the criminal gets scarred, and gives up crime, or they get dead.
either way, shooting back at the criminals, keeps crime low.
Thread: SO WHAT IS SAFER, MORE GUNS or LESS GUNS ?
SO WHAT IS SAFER ????
MORE GUNS or LESS GUNS ???
this is a BULLSHIT QUESTION.
anti-gun nuts say, and the premise of the film 'bowling for columbine' is that;
guns are bad, and more guns = more deaths,
and less guns = less deaths.
IF more guns = more deaths,
WHY do cops carry guns ??
wouldn't we be safer if the cops were unarmed ??
after all, more guns = more deaths, right ??
did ANYONE in the movie theater say;
"there are too many guns in here, DO NOT call the cops; they will just bring MORE GUNS in here."
"do not call the cops; they will just cause a shootout, and more people COULD die in the crossfire."
(that's the excuse they use to argue against an ARMED PUBLIC, using guns to defend themselves; "more people COULD die in the crossfire")
also, they say; "if the cops arrive and see a room full of people, all shooting at each other, how do they know who is the bad guy and who is the good guy"
yes, let's make it really easy for the dumb cops;
when the cops arrive, let them see one armed guy, still standing, and a room full of UNARMED, BLOODY CORPSES . real easy. right. (scarcasm)
there's about 5 % hard core criminals, and almost 100 % are armed.
(the smart ones throw their guns away / destroy it after use in a crime, and get another later as needed)
there's 95 % good, law abiding citizens, most are walking around UNARMED, as many guns sit undisturbed in a drawyer or closet for years, they do not carry their guns daily.
so to make it absolutely clear;
MORE GUNS in the hands of violent psycho criminals = more deaths.
LESS GUNS in the hands of NON-violent citizens = MORE deaths.
LESS GUNS in the hands of violent psycho criminals = LESS deaths.
MORE GUNS in the hands of NON-violent citizens = LESS deaths.
the violent psycho had full body armor, and i have not heard anyone complaining that body armor should be banned, just the same old lie, "guns are bad, so we need MORE gun control / STRONGER gun control / REAL gun control".
if the violent psycho killed 100 people, by intentionally driving his automobile onto a crowded sidewalk, would they be talking about BANNING CARS for everyone ???
HELL NO !!
or; "only cops should have cars."
HELL NO !!
murder is illegal, that did not stop the shooter, so making guns illegal will not stop shooters either.
most shooters get their guns illegally.
"make guns illegal, and there will be no crime" is just as stupid as;
"make DRUGS illegal, and there will be NO DRUGS", and nobody will be able to get high". and;
"make gambling illegal, and nobody will be able to gamble." or;
"make prostitution illegal, and and there will be no prostitutes".
we cannot UN-INVENT guns, drugs, gambling, or prostitution.
as long as they exist, there will always be SOME problems.
we need to REDUCE these problems, not try to make a 100 % problem-free world, because that would only be possible if we were all saints.
we are not.
DO YOU REALLY WANT TO REDUCE VIOLENCE ???
raise wages and reduce poverty.
everywhere in the world, poverty increases crime problems.
end prohibition of ALL 'VICE CRIME'. (victimless crime)
LEGALIZE DRUGS, GAMBLING, and PROSTITUTION.
everywhere in the world, prohibition increases crime problems.
WE NEED TO DO SOMETHING with all the CRAZY PSYCHOS;
jail does not cure anything, especially insanity, if anything, jail CAUSES insanity.
and they only go to jail AFTER THEY KILL, NOT BEFORE. also, after they serve their sentence, they are released, still crazy.
we need to return the funding for the 'nut houses' that was cut years ago, resulting in CRAZY PSYCHOS walking the streets.
we 'saved lots of money' by shutting down the 'nut houses', and this is the result.
and let citizens use guns to defend themselves from the CRAZY PSYCHOS.
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12/18/2012 01:21 AM
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When the second amendment was written, you had to do this before firing each shot.
"Firearms were loaded from the muzzle end with black rifle powder. Then a cloth patch was placed over the muzzle and a small round lead ball was then pressed down onto the patch, the patch cut, and the ball pushed down until it reached the powder in the barrel. In order to ignite the power, a small amount was placed in a "pan" where a "flint" would eventually come down, shaving pieces of metal and sparks from a "frizzen" onto the powder in the "pan" and a very tiny hole in the side of the barrel would allow the main powder charge to be ignited."
Not sure they would have foreseen military assault rifles with 30 round clips in applying to this amendment, but you are welcome to interpret the Constitution in whatever way it makes you happy.
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12/18/2012 01:32 AM
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He didn't agree that a man should be put in prison for the length of a weapon he used to protect himself, or that the person
should have to pay twenty times the value of the weapon for each weapon owned, and pay the same 200 dollars again each time it was sold.
The Judge told the District Attorney that, "A militia, by definition, is a group of citizens who use their own weapons for
defense of themselves and their freedoms. We cannot throw them in prison or fine them five thousand dollars for failing to
have exactly the same type arms as are carried by the National Guard or any other branch of our standing army, or expect them
to pay two hundred dollar taxes at the whim of the Treasury merely to exercise their Constitutional rights."
In order to protect freedom, a militia must always be independent of the government.
Any military force that must answer to the government is a force that may not be able to answer “no.”
Last Edited by NousDefions on 12/18/2012 01:35 AM
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