Soapbox: What does the 2nd Amendment Mean?

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Birdjaguar

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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 Second Amendment is in the news once again because of the recent shootings. It is used frequently as a defense against any limits on gun ownership. There are a couple of things to note about the amendment. It is a single sentence that says, because of X, Y is important. The amendment itself makes three points. The security of a free state is important; a well regulated militia is necessary to preserve that free State and a militia requires that citizens have access to their own guns. The individual right to bear arms is directly linked to the militia.

Many people today like to ignore the first 13 words of the amendment and say that only the second part matters since militia’s are no longer important, therefore, those words can be ignored. We certainly don’t take such liberties with the other amendments.

My contention is that the 2nd amendment is outdated and should be either scrapped or applied to the National Guard. A new basis for guns and gun ownership by citizens should be developed.

Does the Second Amendment convey an individual right to bear arms, or does it only establish the means to arm the state military institutions that the Founders knew as the militia and we know as the National Guard?

The following article goes into some detail about why the 2nd Amendment is worded the way it is and what it meant to those living in late 18th C America. The bolding is mine.
In a box at the Rhode Island Historical Society, a contract describes the creation of a militia in Kent County during the crisis year of 1774. "We the subscribers do unanimously join to establish and constitute a military independent company," reads an agreement signed by dozens of local men. "That on every Tuesday and Saturday in the afternoon for the future, or as long as occasion require it shall be judg'd necessary or expedient a Meeting to be held at the House of William Arnold in East Greenwich for the Purpose aforesaid."

You and Bill and I hereby agree to make an army, and let's meet at Bill's house to practice.

Formed by an agreement between armed individuals, the Kentish Guards became a militia organization without being a government institution, though the members would soon approach the colonial government of Rhode Island for a charter. It was a "militia of association," built in equal measure from multiple foundations. The men of the Kentish Guards weren't a militia merely because they each owned guns, and they weren't a militia because the government said they were. They became a militia when they talked among themselves, agreed on rules and a shared purpose, and signed a mutual contract. They were a militia as a community.

The agreement to make a militia empowered its members and restrained them at the same time, allowing them to act but demanding that they act together in considered ways. The early American militia was neither purely individual nor purely governmental; rather, it was deeply rooted in a particular place, making the militia a creature that stood with one foot in government and one foot firmly in civil society.

In this social vision, government couldn't properly take guns from the men who then made up political society, but those men couldn't properly use guns in ways that transgressed community values and expectations. The bearing of arms was a socially regulated act.

That mixed reality grew from a social world that looks nothing like our own. The first few American police departments were still many decades in the future, and the victims of crime could only shout for their neighbors.

Whole neighborhoods raced into the street in response to a cry for help, and victims could personally bring the accused before a local magistrate. Communities turned out to face military threats, neighbors joining neighbors for mutual defense. Adulterers and wife-beaters were often punished in the ritual called skimminton or charivari, bound to a fence post and paraded in shame by their jeering neighbors.

With this kind of local experience, the bearing of arms was an individual act undertaken in carefully shared and monitored ways. The historian T.H. Breen has described the citizen-soldiers of colonial Massachusetts as members of a "covenanted militia," bound by agreement.

Another historian, Steven Rosswurm, has described the negotiations between Pennsylvania's Revolutionary government and the ordinary men, serving as privates in the militia, who formed a "committee of privates" to present the terms under which they would perform armed service. Government did not just command; states and communities talked, bargained and agreed. Individuals were both free to act and responsible to one another for their actions, in a constantly debated balance.

In the predawn hours of April 19, 1775, militiamen of Lexington, Mass., gathered around their commander. Capt. John Parker greeted each man, writes the historian David Hackett Fischer in his book "Paul Revere's Ride," as "neighbor, kinsman, and friend," joining them to decide what they would do about the British regulars marching toward their town. "The men of Lexington . . . gathered around Captain Parker on the Common, and held an impromptu town meeting in the open air." They had a commander, and he joined them for discussion.

Today, we are presented with a false choice in which either the government bans assault weapons or an unfettered individual right makes it possible for a monster to spray bullets into schoolhouses. The forgotten middle ways of our nation's earlier days, that world of mutuality, excluded more people than it included, and its shortcomings are well known. But it also had real strengths, and the benefits of a strong civil society are lost to us when we expect government to address and solve our every problem.

Mr. Bray, a former Army infantry sergeant, is an adjunct assistant professor at Pitzer College in Claremont, Calif.

So the questions I put before are:

1. Should the constitution be interpreted in the context in which it was written?
2. Should the 2nd Amendment be read as a single 27 word sentence or can we now in our modern age focus only on the last 14 words?


As I see it the 2nd amendment is only concerned with the ability of state militias defend local security and has no place in any discussion about individual gun ownership.

Poll coming.
 
I think the amendment is intentionally confusing and open to interpretation. For a group of well educated men to compose such a poorly constructed sentence leads me to believe they were up to something.

I think they couldn't agree on which way to go, so they left it to future generations to decide for themselves.

So yeah, read the whole thing and then use your best judgement.
 
How were they unclear? What is confusing about that single sentence? Is it the first half or the second?
 
The situation of where our militia went is a whole discussion but the arms part is pretty clear. Instead of ignoring the 2nd half of it there should be a movement for an amendment to nullify the 2nd. The constitution can be amended, as an alternative infringing what shall not be infringed.
 
Until D.C. v. Heller and McDonalad v. Chicago it used to mean that a collective right to bear arms in the context of a well regulated militia existed. This is largely borne out by the paucity of gun ownership cases prior to very recently and by historical writings and accounts. Now however it means an individual right to own and bear arms exists, and that right is incorporated against both the federal and state government. It remains an open question now as to what extent government can regulate firearms through background checks, clip limitations, gun locks, gun rack requirements, assault weapons bans and so forth. Legal scholars have thoughts on the matter but its not quite clear yet until the Supreme Court expands on it's rulings. We know a full scale ban on handguns isn't permissible. Probably not an assault weapons ban either. Background checks, mental health requirements and such things almost certainly permitted. Gun locks and gun clip limitations maybe.
 
The most reasonable interpretation in my opinion is that this forbids the Federal Government from regulating weapons at all, but does not prohibit regulation at a more local level. A well-regulated militia is not an army reserve for the federal government, but a force that defends a sate or locality from aggression either from foreign powers or federal overreach.



The most confusing part of the amendment is the overuse of commas. I really don't see any excuse for the last comma. The first comma seems like someone forgot to remove it when they removed the phrase " composed of the body of the people" from this rough draft of the amendment:

"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."

(Frankly I prefer this rough draft with its constitutional protections for Conscientious Objectors, although it would be better still if it forbade conscription altogether.)
 
Until D.C. v. Heller and McDonalad v. Chicago it used to mean that a collective right to bear arms in the context of a well regulated militia existed. This is largely borne out by the paucity of gun ownership cases prior to very recently and by historical writings and accounts. Now however it means an individual right to own and bear arms exists, and that right is incorporated against both the federal and state government. It remains an open question now as to what extent government can regulate firearms through background checks, clip limitations, gun locks, gun rack requirements, assault weapons bans and so forth. Legal scholars have thoughts on the matter but its not quite clear yet until the Supreme Court expands on it's rulings. We know a full scale ban on handguns isn't permissible. Probably not an assault weapons ban either. Background checks, mental health requirements and such things almost certainly permitted. Gun locks and gun clip limitations maybe.
I think if these decisions did impact assault weapons bans that challenges would have already been made:

NY Times: No Right to Bear Assault Weapons

The United States Court of Appeals for the District of Columbia last week persuasively ruled that the Constitution allows the District to ban possession of assault weapons and high-capacity magazines of bullets and to require citizens to meet sensible standards for registering guns.

This ruling underscores a principle set forth in the 2008 Supreme Court decision in District of Columbia v. Heller, which held that the Second Amendment allows individuals to keep handguns at home for self-defense. The Supreme Court said in that case that the right is “not unlimited” and doesn’t protect guns “not typically possessed by law-abiding citizens for lawful purposes.” And it specifically suggested that jurisdictions could ban the possession of the military’s M-16 rifle because it is “dangerous and unusual.”

The District’s firearms law defines “assault weapon” to include rifles like the AR-15, which the Supreme Court once called “the civilian version of the military’s M-16 rifle.” The appeals court suggested that the only place where assault weapons, which are designed to spray bullets at a rapid rate, are necessary for self-defense is on a battlefield or the equivalent for police. Anywhere else their presence is an invitation to mayhem and puts police officers and all around at high risk.

It also concluded that “the evidence demonstrates a ban on assault weapons is likely to promote the Government’s interest in crime control in the densely populated urban area that is the District of Columbia.” The court reached the same conclusion about banning magazines with more than 10 rounds of ammunition. Those magazines increase the dangers of semiautomatic guns: they result in more shots fired, people wounded and wounds per person. The appeals court’s ruling is careful and convincing on this heated topic.
 
That's interesting, we should do an assault weapons ban and see what happens.
 
How were they unclear? What is confusing about that single sentence? Is it the first half or the second?

First off, by mentioning militias in the same sentence as private individuals confuses things. Did they mean that private citizens may own arms, or did they mean that private citizens may form militias if they deem necessary?

"Arms" is not defined. Guns? Cannons? Swords? All of these weapons were used extensively during the founders time period, so what exactly did they mean?

"Infringed" is not defined. Is a gun license an infringement? Is federal oversight an infringement? Magazine size caps is a whole other can of worms since magazines didn't exist when this amendment was written.

Again, I believe these things were done intentionally so as to allow future generations some wiggle room.
 
The Second Amendment is in the news once again because of the recent shootings. It is used frequently as a defense against any limits on gun ownership. There are a couple of things to note about the amendment. It is a single sentence that says, because of X, Y is important. The amendment itself makes three points. The security of a free state is important; a well regulated militia is necessary to preserve that free State and a militia requires that citizens have access to their own guns. The individual right to bear arms is directly linked to the militia.

Many people today like to ignore the first 13 words of the amendment and say that only the second part matters since militia’s are no longer important, therefore, those words can be ignored. We certainly don’t take such liberties with the other amendments.

My contention is that the 2nd amendment is outdated and should be either scrapped or applied to the National Guard. A new basis for guns and gun ownership by citizens should be developed.

Does the Second Amendment convey an individual right to bear arms, or does it only establish the means to arm the state military institutions that the Founders knew as the militia and we know as the National Guard?

The following article goes into some detail about why the 2nd Amendment is worded the way it is and what it meant to those living in late 18th C America. The bolding is mine.


So the questions I put before are:

1. Should the constitution be interpreted in the context in which it was written?
2. Should the 2nd Amendment be read as a single 27 word sentence or can we now in our modern age focus only on the last 14 words?


As I see it the 2nd amendment is only concerned with the ability of state militias defend local security and has no place in any discussion about individual gun ownership.

Poll coming.

The context is in how we define 'militia'. It is usually defined as any person of age being eligible to bear arms in defense of the people, and not a reference to the 'organized' militia which is taken to mean each states National Guard.

In essence, here is the breakdown:

The active duty military (US Army, Navy, Air Force, Marines, Coast Guard all federal).
The active duty reserves (the reserve components of those groups all federal).
The National Guard (individual states organized Militia).
The militia (all citizens of fighting age).

The point being, the National Guard is the 'organized militia' and is a distinct and different entity than 'the militia' as referenced in the 2nd amendment. And yes, this confuses a great many people who are unfamiliar with the military in general.
 
That's interesting, we should do an assault weapons ban and see what happens.
They are already banned in DC altogether which was already tested in the appeals court of appeals as the editorial mentions, and a few states already banned specific types. NY state just recently implemented a complete ban as well, which was the subject of a recent thread.
 
It's not as if we're about to allow individual citizens, or groups of private citizens, access to real modern military weaponry like heat-seeking missiles, anti-aircraft batteries and main battle tanks, so in a contemporary context the Second Amendment isn't very useful for purposes of ensuring that the citizens are able to militarily take their government to task if it becomes abusive (which seems to be the most common, if fallacious, argument for the existence of the amendment).

Right now, the Second Amendment is really only useful as it allows the individual to arm themselves for sport or for self-defense. Within these confines, what other purpose does the amendment serve?
 
The situation of where our militia went is a whole discussion but the arms part is pretty clear. Instead of ignoring the 2nd half of it there should be a movement for an amendment to nullify the 2nd. The constitution can be amended, as an alternative infringing what shall not be infringed.
The amendment ties the two together very clearly. There are not two halves to it.

The most reasonable interpretation in my opinion is that this forbids the Federal Government from regulating weapons at all, but does not prohibit regulation at a more local level. A well-regulated militia is not an army reserve for the federal government, but a force that defends a sate or locality from aggression either from foreign powers or federal overreach.
The citizens bearing arms is a function of the requirements of a militia. It is not independent.
The most confusing part of the amendment is the overuse of commas. I really don't see any excuse for the last comma. The first comma seems like someone forgot to remove it when they removed the phrase " composed of the body of the people" from this rough draft of the amendment:

"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."

(Frankly I prefer this rough draft with its constitutional protections for Conscientious Objectors, although it would be better still if it forbade conscription altogether.)
the commas certainly don't help.

First off, by mentioning militias in the same sentence as private individuals confuses things. Did they mean that private citizens may own arms, or did they mean that private citizens may form militias if they deem necessary?
that is why the context is necessary. the militia the amendment allows and supports were made up of individuals who had to bring their own weapons. The amendment emphasizes that it is the militias that secure freedom, not the individuals. In colonial America, to have a militia, people had to have guns.

"Arms" is not defined. Guns? Cannons? Swords? All of these weapons were used extensively during the founders time period, so what exactly did they mean?

"Infringed" is not defined. Is a gun license an infringement? Is federal oversight an infringement? Magazine size caps is a whole other can of worms since magazines didn't exist when this amendment was written.

Again, I believe these things were done intentionally so as to allow future generations some wiggle room.[/QUOTE]In those times a militia could arm itself with whatever individuals could afford to own. Musket and shot of course, swords maybe, even cannon if a rich person had one.

The context is in how we define 'militia'. It is usually defined as any person of age being eligible to bear arms in defense of the people, and not a reference to the 'organized' militia which is taken to mean each states National Guard.
But that is not how a militia was defined in 1789. To the Founders, it was as stated in the article: a locally organized and contracted group of civilians.
In essence, here is the breakdown:

The active duty military (US Army, Navy, Air Force, Marines, Coast Guard all federal).
The active duty reserves (the reserve components of those groups all federal).
The National Guard (individual states organized Militia).
The militia (all citizens of fighting age).

The point being, the National Guard is the 'organized militia' and is a distinct and different entity than 'the militia' as referenced in the 2nd amendment. And yes, this confuses a great many people who are unfamiliar with the military in general.
The NG is as close as we can get to the colonial militia today. That is why I think we should apply the 2nd Amendment to it and then completely rewrite gun laws based on today's reality. Your modern definition of militia is not relevant.

Laws pertaining to individual gun ownership needs to be divorced from the 2nd amendment.

Mobby, don't forget to vote!
 
Seriously, the only militias that still around are basically itching to slaughter minorities the moment it hits the fan. Good riddance.
 
Seriously, the only militias that still around are basically itching to slaughter minorities the moment it hits the fan. Good riddance.
So you agree that the 2nd Amendment is irrelevant today?
 
It's always seemed incredible to me that Americans care about what some people 230 years ago thought about things. In any other country in the world, no-one would even consider this.

If you told a french person that king Louis XIV would object to a particular piece of legislation, they would either ignore you completely or refer you to a psychiatrist.
 
1. Should the constitution be interpreted in the context in which it was written?

As I see it the 2nd amendment is only concerned with the ability of state militias defend local security and has no place in any discussion about individual gun ownership.

I agree with you, it's only concerned with state militias maintaining laws and protecting the US from the British had they decided to come back. But the problem with interpreting it in this fashion is that by doing so, a lot of modern political views (from both parties) must be forfeited to maintain consistency.
 
But that is not how a militia was defined in 1789. To the Founders, it was as stated in the article: a locally organized and contracted group of civilians.

Which would indeed occur today if the government needs them to. In Washington, the state law expressly makes a difference in the National Guard and another entity referred to as the state guard.

For example, from the Revised Code of Washington 38.04.010:

RCW 38.04.010

General definitions.

When used in this title, the following words, terms, phrases shall have the following meaning:

The word "militia" shall mean the military forces provided for in the Constitution and laws of the state of Washington.

The term "organized militia" shall be the general term to include both state and national guard and whenever used applies equally to all such organizations.

The term "national guard" shall mean that part of the military force of the state that is organized, equipped and federally recognized under the provisions of the national defense act of the United States, and, in the event the national guard is called into federal service or in the event the state guard or any part or individual member thereof is called into active state service by the commander-in-chief, the term shall also include the "Washington state guard" or any temporary organization set up in times of emergency to replace either the "national guard" or "state guard" while in actual service of the United States.

The term "state guard" shall mean that part of the military forces of the state that is organized, equipped, and recognized under the provisions of the State Defense Forces Act of the United States (32 U.S.C. Sec. 109, as amended).

The term "active state service" or "active training duty" shall be construed to be any service on behalf of the state, or at encampments whether ordered by state or federal authority or any other duty requiring the entire time of any organization or person except when called or drafted into the federal service by the president of the United States.

The term "inactive duty" shall include periods of drill and such other training and service not requiring the entire time of the organization or person, as may be required under state or federal laws, regulations, or orders, including travel to and from such duty.

The terms "in service of United States" and "not in service of United States" as used herein shall be understood to mean the same as such terms when used in the national defense act of congress and amendments thereto.

The term "military" refers to any or all of the armed forces.

The term "armory" refers to any state-owned building, warehouse, vehicle storage compound, organizational maintenance shop or other facility and the lands appurtenant thereto used by the Washington national guard for the storage and maintenance of arms or military equipment or the administration or training of the organized militia.

The term "member" refers to a soldier or airman of the organized militia.

Many other states have similar provisions in their own state law. You can plainly see what I referred to earlier in this law - a decided difference in the militia, the organized militia (i.e. the National Guard) and the rest of the military.

The NG is as close as we can get to the colonial militia today.

No, its not. Today's national guard is far more comparable to the regular army today than probably ever before in our nations history. In some cases, National Guard units have spent more time deployed than their active duty counter-parts. That was never the true militia's role as a last line of defense of the homeland.

That is why I think we should apply the 2nd Amendment to it and then completely rewrite gun laws based on today's reality. Your modern definition of militia is not relevant.

It's precisely relevant because thats how the law is written and interpreted (and will continue to be thusly so).

Laws pertaining to individual gun ownership needs to be divorced from the 2nd amendment.

Not going to happen.

Mobby, don't forget to vote!

I vote every election.

It's always seemed incredible to me that Americans care about what some people 230 years ago thought about things. In any other country in the world, no-one would even consider this.

If you told a french person that king Louis XIV would object to a particular piece of legislation, they would either ignore you completely or refer you to a psychiatrist.

King Louis has nothing to do with France's government today. Ours is still based on what happened 230 years ago.
 
Fun article about how firearm control used to be framed. The Turner diaries intro still creeps me out because of how often same gun grabbers rhetoric gets used these days.
 
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