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Author Topic: Gun Control and the 2nd Amendment  (Read 1041 times)
Stealthiest
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« on: January 29, 2013, 09:15:26 AM »

 Huh ???Can somone with a clue please explain what a "well regulated militia" means in the 2nd Amendment to our Constitution? Some people think that this gives the Federal Government the right to regulate our right to bear arms! This seems to me like an contradiction to the phrae shall not be infringed upon! I always thought it meant can't remain and seize power after the conflict!
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DonutGuard
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When Government fears the people, there is Liberty


« Reply #1 on: February 09, 2013, 12:44:22 PM »

Think of it like this...

"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 first part, "A well regulated militia, being necessary to the security of a free state" is the preamble.  It states the purpose of what is about to come after it.  In historical context, a militia was a civilian military made up of all able bodied men from all walks of life.  These were not professional soldiers, they were the average Joe blacksmith, farmer, gunsmith, etc etc.  Being well-regulated meant that they practiced regularly and were established at some level... for example, you could be in a militia that meets and practices on the weekends, back then it was usually required.  Militias like these were common in those times since they were necessary for protection from bandits, Indian attacks, and eventually fighting against tyranny.  Militias might have even been called upon by the local government (at the town or state level perhaps) to fend off invaders, or to help with disaster relief/recovery.  Even today, this is still possible, but the state now has the National Guard, however, the National Guard isn't the same as a militia since it is no longer a civilian military.  In modern terms, the National Guard is considered the "organized militia" whereas the civilian militia is considered the "unorganized militia".  The Unorganized militia may still be called upon as reserves, but they are for all intents and purposes, independent of the state unlike the National Guard, which is state funded and state organized.  That right there, is very important to remember when distinguishing the two.

Another part that needs to be hashed out in historical context is the meaning of the word, "state".  A state in those times refers to a body of government, or civil authority.  England was a state, France was a state... each of the thirteen original states were meant to be on this same level of distinction, bound together loosely for mutual protection and prosperity.  The fact that they said "free state" is important since it describes the condition of the state... free.  It is safe to say then, ignoring everything else they said that would back this next statement up, that they had defense against tyrannical government in mind when they wrote this Amendment.  This is why they saw fit to distinguish that it is a militia which is necessary to the security of a free state, rather than a standing army such as the National Guard, the Army, Marines, Navy, Air Force, and Coast Guard.

The second part, is telling the reader how the first part will be accomplished.  Since we've established that a militia is made up of armed civilians, it would make sense that in order for them to be able to perform their role in said militia, they would need to have their own weapon in order to participate.  Therefore, the state should not be capable of making any sort of law prohibiting, or restricting the people from the ability to keep and bear arms.  It is also important to note that they do not mention what kind of arms the people are allowed to have.  The reason for this is that the founders knew that technology is always improving, and that the people should never be restricted to using arms that are inferior to any sort of invading force, standing army, or tyrannical government.

Another way of writing this amendment that spells it out...

"A well armed, and trained citizen military that is independent of the state, is necessary for protection, and the maintenance of liberty within a sovereign nation, therefore the ability of citizens to own and maintain their own firearms so that they may participate, shall not be restricted or prohibited in any way, shape or form."

Taking all of this into consideration, it's pretty clear that Thomas Jefferson was a man of his word when he said, "The most valuable of all talents is never using two words when one will do".  Though it was officially written by James Madison, Thomas Jefferson was surely an enormous influence since he was in constant contact with Madison from Europe during the Constitutional Convention.  In only twenty seven very carefully chosen words, they said a lot.

Hope this Helps!
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Stealthiest
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« Reply #2 on: February 10, 2013, 06:57:32 PM »

Thank you, for the excellent reply to my question. Are you a teacher of History or just a Constitutional scholar?
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decemberfellow
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« Reply #3 on: February 10, 2013, 07:10:02 PM »

+1 donut
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Mark12:
4And I say unto you my friends, Be not afraid of them that kill the body, and after that have no more that they can do.
 5But I will forewarn you whom ye shall fear: Fear him, which after he hath killed hath power to cast into hell; yea, I say unto you, Fear him
Jackson Holly
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« Reply #4 on: February 10, 2013, 07:51:13 PM »

PLUS 2 DONUT .... +2.


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.


EDITED FOR CLARITY:

(Due to the fact that) a well regulated militia, being
necessary to the security of a free state, (for matters of
defense against such militia) the right of the people to
keep and bear arms shall not be infringed.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This is my understanding ... I think I first heard it
explained here:

Penn & Teller - less than a minute:
http://www.youtube.com/watch?v=1GNu7ldL1LM

Full Episode:
http://www.liveleak.com/view?i=ec7_1251312990
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JT Coyoté
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« Reply #5 on: February 10, 2013, 09:03:34 PM »


The Founders knew what they were doing in writing the 2nd Amendment!

I will start with a synopsis in historical background using the words of the
founders, the authors of the Constitution.

The Founders felt that the 1787 Constitution, as it stood, did little to
protect the rights of the people, collectively or individually. This
started one of the largest debates in American history and ended in the
Bill of Rights. Dozens of people wrote letters to the Editor in many large
and small papers across the country to engage in debate, among them were
James Madison and Alexander Hamilton. These letters were then compiled
into a body of reference called "The Federalist and Anti Federalist
Papers", which are regularly consulted by judges, attorneys, and scholars,
when formulating opinions on the Founders' intent, when questions such as
this come forward.

There is this quote by Thomas Jefferson on the personal defense :

"Laws that forbid the carrying of arms... disarm only those who are neither
inclined nor determined to commit crimes. ...Such laws make things worse
for the assaulted and better for the assailants; they serve rather to
encourage than to prevent homicides, for an unarmed man may be attacked
with greater confidence than an armed man."



Alexander Hamilton's comments from Federalist Paper No. 29 dealing with
his concern at the possibility of the federal power turning on the people :

"Little more can reasonably be aimed at, with respect to the people at
large, than to have them properly armed and equipped...[the unregulated,
undisciplined and basically inactive part of the militia.] ...This will not
only lessen the call for military establishments; but if circumstances
should ...oblige the Government to form an army of any magnitude, that army
can never be formidable to the liberties of the people..."



And James Madison puts these concepts and concerns slightly
differently in Federalist Paper No 46 :
 
"Besides the advantage of being armed, which the Americans possess over
the people of almost every other nation, the existence of subordinate
Governments, to which the people are attached [state and local governments],
and by which the militia officers are appointed, forms a barrier against the
enterprises of ambition,[of a Federal power] more insurmountable than any
which a simple Government of any form can admit of."


In his pamphlets toward persuading Pennsylvania to ratify the Constitution, Noah Webster stated it this way:

"Before a standing army can rule, the people
must be disarmed; as they are in almost every
kingdom of Europe. The supreme power in America
cannot enforce unjust laws by the sword; because
the whole body of the people are armed, and
constitute a force superior to any bands of regular
troops that can be, on any pretense, raised in the
United States"
*


*(Noah Webster from 'An Examination into the Leading Principles of the
Federal Constitution'
, 1787, a pamphlet aimed at swaying
Pennsylvania toward ratification, from Paul Ford, ed., Pamphlets
on the Constitution of the United States, at 56(New York, 1888)



These are not the only assertions from the Founders papers with regard to
this second Article of the Bill of Rights, there are many others by other authors,
but the tone and tenor is pretty much the same.

The next thing that should be looked at regarding the Second Amendment is
the fallacious argument that somehow the amendment confers a right to bear arms to the
militia only, (which is often misidentified as the Military, which it is not). In fact the people 'are' the militia, they are one and the same... as was shown in quotes
above, and will be explained later. The militia is/are, essentially comprised
of the people, the citizen population in irregular form and are therefore
distinct from any organized federal military as a whole. With that said, I
will prove that the right is conferred solely to the people and by
extension to the militia. This will require the grammatical analysis of
the Second Amendment, a project that was done some years back by J. Neil
Shulman under the title of "The Unabridged Second Amendment".

Mr. Schulman contacted Roy Copperud, who was a newspaper writer on major
"Dailys" for over three decades, a distinguished teacher of journalism at
the University of Southern California. The author of a column dealing with
the professional aspects of journalism for "Editor and Publisher" a weekly
magazine for the news trade. He's also on the usage panel of the American
Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites
him as an expert. He also wrote five books on American language usage.

The following question and answer exchange between Shulman and Copperud
gets to the meat of the situation...

"[Shulman] The text of the Second Amendment is, 'A well-regulated Militia,
being necessary for the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed."

“The debate over this amendment has been whether the first part of the
sentence, ‘A well-regulated Militia, being necessary to the security of a
free State', is a restrictive clause or a subordinate clause, with respect
to the independent clause containing the subject of the sentence, 'the
right of the people to keep and bear Arms, shall not be infringed.'”

[Copperud:] "The words 'A well-regulated militia, being necessary to the
security of a free state,' contrary to the interpretation cited in your
letter of July 26, 1991, constitutes a present participle, rather than a
clause. It is used as an adjective, modifying 'militia,' which is followed
by the main clause of the sentence (subject 'the right', verb 'shall'). The
to keep and bear arms is asserted as an essential for maintaining a militia.

[Schulman:] "(1) Can the sentence be interpreted to grant the right to keep
and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear
arms, nor does it state or imply possession of the right elsewhere or by
others than the people; it simply makes a positive statement with respect
to a right of the people."

Schulman:] "(3) Is the right of the people to keep and bear arms
conditioned upon whether or not a well regulated militia, is, in fact
necessary to the security of a free State, and if that condition is not
existing, is the statement 'the right of the people to keep and bear Arms,
shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right to
keep and bear arms is not said by the amendment to depend on the existence
of a militia.
No condition is stated or implied as to the relation of the
right to keep and bear arms and to the necessity of a well-regulated
militia as a requisite to the security of a free state. The right to keep
and bear arms is deemed unconditional by the entire sentence."

[Schulman:] "As a 'scientific control' on this analysis, I would also
appreciate it if you could compare your analysis of the text of the Second
Amendment to the following sentence,

"A well-schooled electorate, being necessary to the security of a free
State, the right of the people to keep and read Books, shall not be
infringed.'

"(1) Is the grammatical structure and usage of this sentence and the way
the words modify each other, identical to the Second Amendment's sentence;
and

"(2) Could this sentence be interpreted to restrict 'the right of the
people to keep and read Books only to a well-educated electorate... for
example, registered voters with a high-school diploma?"

[Copperud:]"(1) Your 'scientific control' sentence precisely parallels the
amendment in grammatical structure. "

(2) There is nothing in your sentence that either indicates or implies the
possibility of a restricted interpretation."



Though it is a rather short amendment it confers an incredible amount of
power TO THE PEOPLE as individuals, and once that is understood, it says a
lot as to why there has been such usurpation over the decades of the
people's power protected by this amendment, as well as our Constitution as
a whole; usurpations by governments throughout the nation, local, state, and
federal.

How this "turn around in understanding" was accomplished can be found in the
Supreme Court Ruling in the U.S. v Miller... the last Supreme Court case
that analyzed the Second Amendment as it pertains to the Nation as a whole, at length. The decision was reached a decision against the defendant Jack Miller, in abstentia, without an opposing argument over the military value of a sawed off, (short barreled) shotgun... which have been used by militaries world wide since the invention of gunpowder... the decision is quite odd don't you think...

The Second Amendment is so iron-clad which is why the court has historically refused to hear Second Amendment cases to this
day... (U.S. v Heller was concerned with The federal city, the District of Columbia, which it also services). The Miller decision would be opened up and much of what was concluded would be overturned along with virtually all Federal firearms "law" ...as it should be when the Second Amendment is interpreted by the court discussed as it pertains to the united States of America as a whole!

Miller nowhere explicitly says that the Second Amendment does or does not
guarantee an individual right or a collective right. It is logically
impossible, by the way, for a "collective right" to exist unless the
individuals comprise the collectivity possess an individual right.
Otherwise, a "collective right" would be like "collective property" in a
Communist country — the government would have a monopoly over the collective... total destruction of the People's rights as individuals.

The Supreme Court knows this as well, and ruled that the right is an individual
right in the DC case... The Amendment was put in the Bill of Rights, and worded the way it is for a reason... and nothing about it suggests, that it is in any way open to "reasonable restriction"... (the camels nose under the tent).


The 2nd Amendment, indeed protects the individual's right... each of us can choose to exercise or not as our right as well... as with all of our rights, our actions are our own, as is the responsibility for our actions.

JTCoyoté

"A well regulated militia, composed of the body
of the people, trained in arms, is the best
most natural defense of a free country."

~James Madison


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JT Coyoté
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« Reply #6 on: February 10, 2013, 10:44:28 PM »

Huh ???Can somone with a clue please explain what a "well regulated militia" means in the 2nd Amendment to our Constitution? Some people think that this gives the Federal Government the right to regulate our right to bear arms! This seems to me like an contradiction to the phrae shall not be infringed upon! I always thought it meant can't remain and seize power after the conflict!

The founders constructed the Bill of Rights in such a way that it could not be misconstrued. Madison used the word regulated pertaining to the Militia holding all of it's meanings to that time... none of which meant the militia was at all times under federal control... other than the portion called to federal service during time of war or other constitutionally supported emergency, and for no longer than 2 years.


"A key word in the Second Amendment is the word 'regulated'.  Folks assume it means controlled, like under 'federal control'.  Though with that meaning it has only a few foundation document references, all suggesting very limited government control. Another meaning is that the militia be 'regulated' for proficiency.  That it be well schooled and well drilled for strategic and tactical advantage.  There are references dealing with this meaning too, yet the Founders warn us repeatedly against the Militia becoming a standing army under unlimited civil, federal, or state control.

Now, the most documented and debated meaning of the word 'regulated'.  Alex [Miller] leads us here with his personal story involving a muzzle-loading rifle that would have been 'state-of-the-art' when the Constitution was ratified.  Then as today, 'regulated' refers to a balance of power on a field of battle.  This was discussed at length during national debate which gave rise to the Bill of Rights, and is chronicled in..."


JTCoyoté

"The right of civilians in a free society to
possess "military-looking," or even actual
military weapons, is essential if a monopoly
of force is not to reside in the hands of
government, where modern history shows
the potential for far greater abuses and
crimes exists than are possible for any
deranged individual."
~U.S. v. Miller,
307 U.S. 174 (1939)
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DonutGuard
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« Reply #7 on: February 11, 2013, 11:02:26 AM »

Thank you, for the excellent reply to my question. Are you a teacher of History or just a Constitutional scholar?

Neither, actually.  I'm flattered you'd think that I was though Smiley

I spend a lot of time reading and watching video on the subject, and I believe it was either David Kopel, Nutnfancy, or somebody else who basically explained it similar to how I just did, and then I just sort of built upon it.

In fact, part of it I believe was from one of those Reality Checks that they have on Fox News regarding the Second Amendment.
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