Militia Clause In The Second Amendment

By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
KOLBE VS. HOGAN:
PART EIGHT

Cuffed Hands
Does it matter whether it is the State that constrains the individual or the State that constrains the individual on behalf of and at the behest of the Federal Government, or the Federal Government that constrains the individual on its own behalf and at its own behest?
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)-  Those lower federal district courts and higher federal circuit courts of appeal that seek to disarm Americans, do so in clear denigration of the core of the second amendment and in clear defiance of the U.S. Supreme Court decision and reasoning in Heller.

When deconstructing the history of Kolbe, (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individual’s service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movement’s benefactors in Congress, in the media, in finance, and in several of the Courts, may finally be laid to rest.

Yet, that isn’t true at all.

Those opposed to Heller's rulings maintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though, should not be surprised about this. After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.

Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by, the positions embraced by, and the legal and logical conclusions deduced from the premises accepted by the Court's majority in reaching their conclusions. For, the Heller Court majority accepted, as axiomatic, and, in the first instance, that the right of the people to keep and bear arms is a natural right, preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. This sacred principal, that the right of the people to keep and bear arms is a natural right, preexistent in man, is consistent with the framers' belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through its Government, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept, would never accept. Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed to those conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Court’s majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of the nature of and extent of the philosophical differences that lay between them, that informed their notions of the individual's relation to Government. They pushed back and pushed back hard against the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions, in Heller are legally and logically weak. The reasoning of the dissenting Justices is logically faulty, often internally inconsistent, incoherent, and clearly antithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.

But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdle that weakens their position and ultimately makes their position untenable, ultimately reducing their argument to a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can, at least in theory, under the dissenting Justices' thesis, be vindicated. This is critical. For, if the right of the people to keep and bear arms cannot be vindicated, then the right does not exist, and the right codified in the Second Amendment reduces the Second Amendment to a nullity as the right sits empty in the Second Amendment, as a bald face lie. Of course the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say that even as inconsistencies in their position illustrate that the right codified in the Second Amendment simply cannot, under their thesis, be vindicated.

It is a painful thing to see–and their contempt for the right codified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.

Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet, Justice Stevens lays out this odd gambit, proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear arms can be vindicated, notwithstanding that the right is tied exclusively to one’s connection with and service in a militia. But, is not the right of the people to keep and bear arms, then, as argued by Justice Stevens, a collective right, after all? If so, the right cannot be an individual right. It is one or the other, not both; and it must be one or the other. But, the two are mutually exclusive. But, if the right of the people to keep and bear arms is a collective right, after all, then, how is the right ever to be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, the point that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.

Justice Stevens attempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits that the reader can and should dispense with the individual right/collective right distinction in the context of the Second Amendment. He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding of the import and purport of the sacred right embodied in the Second Amendment. Still, he posits, up front, that the reader can and should  dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural law–that the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens asserts it anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can exist within the notion of connection with one's service in a militia–a collective right, after all, a collective right that does not and cannot exist legally, and, more importantly, a right that does not and cannot exist logically. Justice Stevens thereupon, negates, tacitly, at least, the truth of the assumption he makes, and his argument, existing as it does on that single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia, Justice Stevens continues with the crux of his thesis, namely that the Second Amendment's dependent clause, that he refers to as a “preamble,” carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by, limited by the “preamble.” Justice Stevens claims that the preamble is critical to an understanding of the meaning of the right established. He emphasizes the importance of the “preamble” to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all.

Justice John Paul Stevens
Justice John Paul Stevens : Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens’ intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.

Enforceable rights do not exist in the preambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The right is contained solely in the independent, operative clause of Second Amendment. And, in that operative clause of the Second Amendment there is no qualification or condition, limiting the extent of the right. Moreover, as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.

Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. He opines, “The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be ‘well regulated.’ In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.” District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687.

Were Justice Stevens correct—an opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as well—a question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to one’s service in a militia, does not that interpretation essentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.

Justice Stevens was, apparently, astute enough to recognize the problem with his position. It’s a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.

Attempting to circumvent Justice Scalia’s point, Justice Stevens asserted in his typical roundabout, fashion that, “The Court assumes—incorrectly, in my view—that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to ‘organiz[e], ar[m], and disciplin[e], the Militia,’ Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees ‘citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them.’ Ante, at 600, 171 L. Ed. 2d, at 662.” District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20.

Justice Stevens argues in his dissenting opinion that Congress cannot exclude one’s right to keep and bear arms. But, suppose a State should decide to exclude one’s right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against one’s own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a State’s militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made construct–a militia–and, if so, the right, then, does not exist and never existed at all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then, in the individual. 

A State’s militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a State’s National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. “Today, the states’ security personnel are not militiamen, but principally are the members of local law enforcement—and the bulk of counterterrorism work will fall to them.” “The Security Constitution,” 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.

The National Guard is Not the Old Militia

Expanding upon the point, the author says, in a footnote, “In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the ‘State National Guard,’ in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, ‘the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis.’ Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment – the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard – as part of the national military – for homeland security purposes.” 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.

To tie the right of the people to keep and bear arms into the notion of a “militia” or into the descendent of the militia–the National Guard, which is essentially a part of a “standing army”–the very thing the framers sought, in the codification of the right in the Second Amendment to be a guard against–turns the right into a blasphemous, ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens’ intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.

Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburg concurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the public–where excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendment–a contempt shared by the liberal wing of the Court that concurred in his opinion–is on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing, in Printz, essentially that the Federal Government must require the individual States to clamp down on an “armed citizenry.” This according to Justice Stevens, in his usual twisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference?

In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Court—in an opinion penned by Justice Scalia, for the majority—invalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting “the epidemic of gun violence”—which, Stevens felt the Brady Act was enacted to combat.

With his proclivity to contort ideas through verbal legerdemain, Justice Stevens argued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to “create vast national bureaucracies to implement its policies.” Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959 (1997).

Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individual’s right to keep and bear arms is a function of one’s connection with a State militia qua a State’s National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenry’s connection with a State’s militia qua National Guard, as merely an adjunct of the Federal Government’s standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?

Does it matter whether it is the State that constrains the individual or the State that constrains the individual on behalf of and at the behest of the Federal Government, or the Federal Government that constrains the individual on its own behalf and at its own behest? Tyranny is the end result in any event, however one chooses to look at it.

About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel' website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

For more information, visit: www.arbalestquarrel.com.

101
Leave a Reply

Please Login to comment
21 Comment threads
80 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
33 Comment authors
freewillAlanJim MacklinJames HigginbothamHeed the Call-up Recent comment authors
  Subscribe  
Notify of
Alan
Guest
Alan

Jim Macklin and anyone else interested:

Re The Second Amendment, time and inclination allowing, see my comment thereof, said comment posted June 6, 2017, time stamped 7:30 PM

Jim Macklin
Guest
Jim Macklin

No link, post a link

Alan
Guest
Alan

Jim:

Can’t successfully create and post a link. There must be something involved that I’m missing. Will try again tomorrow, as it is late and I’m tired.

Jim Macklin
Guest
Jim Macklin

Sarah, perhaps this will help? “The 2A is extraordinary bcause it is the only amendment that contains the word necessary. “A well regulated Militia being necessary to the security of a free State”. I interpret that part of the 2A as the is where the real power of the 2A is.” Your comment, your interpretation. My interpretation is that the POWER is contained in the second clause. A partial reason is contained in the first clause. In 1788 the Senate rejected adding the words FOR THE COMMON DEFENSE as a limitation on the right to keep and bear arms. In… Read more »

freewill
Guest
freewill

Try this one…of the 10 amendments there is no reason to believe one gives any authority to government in any way when the other 9 protects us from government..regulated means, to adjust to a particular standard, rate, degree, amount…websters new world college dictionary

K
Guest
K

Show me your source for the 17th century definition of “Well Regulated” that mentions “well trained”. Here is the Etymology of these words from as early as the 1620s: well-regulated (adj.) 1709 (Shaftsbury), from well (adv.) + past participle of regulate (v.). regulate (v.) early 15c., “adjust by rule, control,” ………. “to control by rule, direct,”………… Meaning “to govern by restriction” is from 1620s. http://www.etymonline.com/index.php?allowed_in_frame=0&search=regulated This definition fits perfectly with the Second Amendment meaning, being that when “People keep and bear arms” these People “govern by restriction” the “Militia” and insure the “security of a free State”. Defined any other… Read more »

Gil
Guest
Gil

Why bother with what a militia means/meant? If modern 2A rulings say that the right for the individual to acquire weapons and ammo is guaranteed by the 2A then who cares about the militia? Early militia definitions sound like basically military drafts – the government needs your help and will call you up to service. Since the U.S. has the military and law enforcement agencies the “well-regulated militias” are obsolete.

Jim Macklin
Guest
Jim Macklin

The reference to “militia” means that military weapons are to be protected. This was verified by SCOTUS in the 1939 MILLER case. BTW, the MILLER case was not decided, it was remanded for trial in the District Court. Drafting the amendment took over a year and two years in the ratification process. Congress also passed the Militia Act which defined “well regulated” by specifying the arms and ammunition and other equipment each person was required to have in good working order. Part of the problem is that the punctuation has been confusing. With three commas it can be read as… Read more »

Alan
Guest
Alan

Jim:

Reading Miller v U.S. at Wikipiedia,it seems to me that The Court ruled, rather than remanding the case, as you state. Could you clarify please.

Jim Macklin
Guest
Jim Macklin

The 1939 MILLER case has been edited, summarized and the Internet seems to have been purged of the original text of the SCOTUS MILLER case. The Court did not have a trial transcript from the Arkansas District Court and the Supreme Court did not decide the constitutionality of teh 1934 NFA. But the Court assumes that Congress acts properly until proven otherwise. Thus the Court remanded the case back to Arkansas for a trial to generate the record they could study so they could issue an opinion. Somewhere in my library I’ve got OLD books but Wiki and even “official”… Read more »

Heed the Call-up
Guest
Heed the Call-up

K, your reference does not mean what you believe it to mean. Control by rule or to direct does not mean government regulation and law. Control by rule or to direct connotes abiding by rules or instructions, such as marching in formation. However, in common usage at the time, well regulated also meant operating/performing well, such as a clock, a train, a person that is disciplined and does his work well, etc. Thus, when in the context of the phrase of the 2A, referencing “the people”, government laws do not make any sense, but well trained, skilled, good form, etc.,… Read more »

Paul Revere
Guest
Paul Revere

The one point most readers here are missing, is that, Our Country is under attack from within. Pay attention to what is going on along the East coast, and on the West coast. Libatard, mentally ill, or socialist Nazi mentality, is in fact, controlling State government. For example, NY, MA, Conn, and CA, have all put in place gun restrictions that will certainly assist during a foreign invasion. 20 trillion in debt is evidence of a Bankrupt Country. Demorats distracting their dumb down followers with the fake news of Russian interference, when in fact, it is the Demorats themselves that… Read more »

Wild Bill
Guest
Wild Bill

@Paul R, don’t forget Barry Soetoro devalued the purchase power of the dollar, reducing our wages, savings, and pensions to half, also.

keepdad
Guest
keepdad

How can one form a militia without arms?

Wild Bill
Guest
Wild Bill

Hmmm… a militia without arms. Would that be the disarmed militia or the unarmed militia, or no armed militia? You are right! How would that raise their right hand to take the oath?

oldvet
Guest
oldvet

@Wild Bill minutes ago watched young white tail buck, 55 yards, sneeking along in the shade of the hedge row.

Wild Bill
Guest
Wild Bill

OV, What a grand sight! Never see that in the city. I take that back. A guy might see a young buck sneaking along in the shadows more often in the city.
We are between rains. I swam down to the barn this am and let all the horses out to stretch their legs and graze. Looking for more rain later.

David E. Young
Guest
David E. Young

This article deals with philosophical arguments and Justice Stevens’ Heller dissent. There are more direct ways to prove Justice Stevens wrong using the historical documents that directly contradict his claims. There are at least two main defects that make Justice Stevens’ Heller dissent a train wreck of American History. These are a fallacious fundamental conflation error and a circular argument. Justice Stevens Heller dissent is based upon a conflation error that confuses the Second Amendment’s language and intent, which are entirely Bill of Rights related, with the discussions and intent of a militia powers amendment entirely unrelated to that subject.… Read more »

Jim Macklin
Guest
Jim Macklin

Sir:
You wrote a GREAT BOOK. I’ll plug it for you.

The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace 1787-1792 2nd Edition
by David E. Young

This book was citing in the HELLER case by the Supreme Court

Wild Bill
Guest
Wild Bill

Welcome to this site David E. Young. We look forward to you learned and interesting commentary.

Jim Macklin
Guest
Jim Macklin

The First Congress enacted the 1790 Militia Act and set regulated by specifying what caliber of musket/rifle was required, how much equipment each militia member was required to bring with them. That was what well regulated meant.

explainist
Guest
explainist
John Isbell
Guest
John Isbell

My understanding of the Militia at the time the continental congress was convened was that there existed two types of Militias. One being a “Select Militia” and the other was a “General Militia”. Some states preferred a “Select Militia” while others states preferred a “General Militia” . There was much argument about this point in congress and both sides in this debate decided to condense the two and create both Militias. Thus the first clause created the “Select Militia” and the second clause created the “General Militia”. The Select Militia was to be the Militia that was to be “Well… Read more »

Wild Bill
Guest
Wild Bill

@JI, that is an interesting interpretation. Who is the author? I have never heard the term “Select Militia or General Militia”. I don’t think that the founders talked or wrote in those terms. Off the top of my head, paraphrasing, Jefferson, famously, said Who is the militia? It is all the people. TJ did not ask, Who is the Select Militia or Who is the General militia?

Jim Macklin
Guest
Jim Macklin

The National Guard is a select militia. Not everybody can join the Guard. They are paid by the government and earn a pension. Thus their loyalty might be to the ruler and not the Constitition or the people. As I recall , in September 1789 Patrick Henry spoke AGAINST ratification of the United States Constitution because it did not provide security and the rights to the People. That is a major reason we have a Bill of Rights. Henry said The President at the head of the Army would become a King and “your militia would fight against you. What… Read more »

Wild Bill
Guest
Wild Bill

@JM, I don’t recall reading the founders using the words select militia and general militia. Can you quote any of the founders or know reference in the Federalist Papers that uses the terms select militia and general militia?

Jim Macklin
Guest
Jim Macklin

Select Militia – Constitution Society http://www.constitution.org/col/5508_col.htm May 8, 1995 – A century ago most people understood what the term Militia meant, but after … A select militia was an armed group formed not from the entire … Organizing the Militia – The Heritage Foundation http://www.heritage.org/constitution/articles/1/essays/56/organizing-the-militia To provide for organizing, arming, and disciplining, the Militia, and for …… the weaknesses of the militia by creating a select militia corps in each state and … Richard Henry Lee – Wikiquote https://en.wikiquote.org/wiki/Richard_Henry_Lee First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always… Read more »

Wild Bill
Guest
Wild Bill

@Jim M, First, I would like to thank you for the references. Second, after reading those references, it appears that only Richard Henery Lee used the term Select Militia. Standing army being a term the other founders did use. Select militia is, however, most illustrative.

Jim Macklin
Guest
Jim Macklin

I recommend you find a copy of David E. Young’s reference book
Origin Second Amendment Documentary History by David Young …
https://www.abebooks.com/book-search/title/origin-second…/david-young/
The Origin of the Second Amendment: A: David E. Young. Bookseller Image … Published by Ontonagon, Michigan, U.S.A.: Golden Oak Books (1995). ISBN 10: …
He is listed as the editor because he didn’t write it, rather he collected just about all the public and private writings of the Founders and put it into on volume.
https://www.abebooks.com/book-search/title/origin-second-amendment-documentary-history/author/david-young/

John Isbell
Guest
John Isbell

The author I’m not sure about, but it states it is the Second Edition and was edited by David E. Young.

David E. Young
Guest
David E. Young

The Founder that WB is most likely referring to was probably not Jefferson, but George Mason, who made the following remarks in Virginia’s 1788 Ratifying Convention:

“I ask, Who are the Militia? They consist now of the whole people, except a few public officers.” [OSA, p.430]

This argument was in support of, among other things, an amendment preventing militia from being subjected to martial law unless in actual service. That proposal later became part of the Fifth Amendment.

revjen45
Guest
revjen45

In short We The People are the Militia. Anybody who possesses a militarily useful firearm and the willingness to employ it in the service of Liberty is a militiaman.

David E. Young
Guest
David E. Young

Based upon the document collection referred to, which I edited and published, while there was argument over whether a select militia was a good idea or not, the term militia itself was generally understood as relating to the people, not to a government selected part of people. At that time, the term “select” was associated with the term “militia” in order for one to understand that only a part of the people was intended. “Select” does not mean “well regulated”. The earliest Second Amendment two-clause predecessor was the 1788 Virginia State Ratifying Convention proposed Bill of Rights provision #17, which… Read more »

Gil
Guest
Gil

Strange how it makes the 2A sound more like a justification for the draft than anything about a free People.

David E. Young
Guest
David E. Young

Why would the Second Amendment related provision, among all the Virginia 1788 proposed Bill of Rights provisions “asserting, and securing from encroachment, the essential and unalienable rights of the people”, [OSA p.457] that was quoting a state declaration of rights provision, which the author of both provisions [Mason] understood as one of the “great and important rights, which the people [of Virginia], by their bill of rights, declared to be paramount to the power of the legislature”, [OSA p.436] be intended as anything other than a straightforward limit on the new Federal Government’s powers, just like the other First and… Read more »

Wild Bill
Guest
Wild Bill

@David Young, No, that person has been traced, by one of the members here, to the Violence Policy Center staff. GFYG gets paid to throw out illogical little bombs. We mostly talk about him, rather than to him, so as to reduce his income.

Garryowen
Guest
Garryowen

This is actually a ‘Reply’ to Wild Bill….;)

WB,

WHAT HE SAID! 10-4 to reducing GFYG’s income…;)

Garryowen

Big Bill
Guest
Big Bill

I will point out, again, that the 2A reads “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.” This is not to argue with you, you obviously know a lot more than I do about the 2A. But when it says, “…the right of the people…” they could have used “militia” instead of “people”. I say this to point out that the 2A really is about the right of the “people” as opposed to the “militia” to keep and bear arms. Despite… Read more »

Jim
Guest
Jim

So I would expect that GFYG is a dyed in the wool Hoplophobe. People like him need to get on Jeopardy and buy a clue.

The boy just ain’t wrapped too tight.

Alan
Guest
Alan

James Madison is, rightly or wrongly applauded or blamed for the writing of The Second Amendment. Sad to note, it seems to me that Madison didn’t quite know or realize when “enough said” applied. The crux of The Second, cutting to the chase, references the following. “the right of the people to keep and bear arms shall not be infringed”, which it seems was and remains the heart of the matter. That should have been the entirety of the amendment. Unfortunately, this text was prefixed by some sad, poorly chosen, unnecessary verbiage, that to this day, causes endless travail. I… Read more »

Wild Bill
Guest
Wild Bill

“Those opposed to Heller’s rulings maintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment’s sympathies thereupon render rulings as if Heller never existed.” From above.
Apparently, everyone in power does what ever they want, now. Lower courts do not follow the direction of the Supreme Court. The (former) president does not enforce laws that he does not like. City councils pass ordinances that they know are contrariety to the Constitution, and federal statutes. Bureaucrats use their agencies against various political enemies.

Don
Guest
Don

GFYG that’s a good one. LOL

2War Abn Vet
Guest
2War Abn Vet

The right of self-defense is the first law of nature. In most governments, it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and when the right of people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. – Henry St. George Tucker, Blackstone’s 1789 Commentaries on the Laws of England

K
Guest
K

In order for a judge or panel of judges to remain impartial, the rules of court require decisions of a case be made ONLY by what is presented during the arguments This rule applies even if the judge(s) know an attorney is leaving out an argument that if presented would change the decision because to rule otherwise the judge(s) would violate the rules by practicing law from the bench, which they cannot do. Have not seen the full transcript from Kolbe vs. O’Malley but based on other judicial examples, expect that the “Militia” based position decided by Heller was not… Read more »

Jim Macklin
Guest
Jim Macklin

The Left, hillary, janet reno, Sen. Thomas Dodd, read A well regulated militia shall not be infringed. . In their written testimony in 1982 the ABA left the People out of their “quote”. Scalia got it correctly, the right is the individual. The People must have arms for self-defense and to be able to form a militia to control the government. The writings of Patrick Henry, George Mason and other make it clear that they were afraid a select militia would be a servant to the government and a protector of the security of a state of freedom. Because A… Read more »

Jim Macklin
Guest
Jim Macklin

Must not type when tired. I knew I thought To keep and bear above.

Gil
Guest
Gil

Janet Reno, eh? She showed how long a peoples’ militia would last against the Feds.

Jim Macklin
Guest
Jim Macklin

Waco was a test case to discover if the government could propagandize effectively and murder 100 people. Chuckie Schumer effectively deflected the second Congressional hearings from ATF and FBI misconduct to whether some young girls had sex in violation of Texas state law.
Janet Reno has a long record of anti-Second Amendment rights as does Chuckie.

Gil
Guest
Gil

It certainly disproved having guns will win the day.

Wild Bill
Guest
Wild Bill

@JM, Once again GFYG, VPC staffer, has analyzed the Waco incident incorrectly. Having and using firearms properly did win the day. It stopped the initial BATFE assault, and denied the BATFE entry for many days. The case was taken away from the BATFE. And when did the federal government start killing people over an unpaid tax?

Heed the Call-up
Guest
Heed the Call-up

WB, the Whiskey Rebellion?

Wild Bill
Guest
Wild Bill

@Heed, Just off the top of my head, I think that the WR was more about the rebellion than the unpaid tax part. Maybe it was more about the whiskey wearing off. But weren’t there more casualties at Waco than the entire WR?

Heed the Call-up
Guest
Heed the Call-up

WB, my post was just an off-the-cuff, flippant remark. I was not being serious.

Wild Bill
Guest
Wild Bill

@Heed, Me too! Except, I think that there really were more casualties at Waco.

Gil
Guest
Gil

The Feds won hands down – get over it. The Waco incident disproved the notion you can take down the U.S. Government by going on mass shooting sprees.

Heed the Call-up
Guest
Heed the Call-up

Gil, that wasn’t proof of anything. I don’t recall the Branch Davidians looking to overthrow our government. Even if that were true, they certainly didn’t have popular support of the citizens.

You have really gone off the deep-end in your posts here.

Does that mean you are off or back on your medication?

Wild Bill
Guest
Wild Bill

At Waco, the BDs denied entry to the BATFE, and FBI for many days, but did not have the logistics to hold them off forever.

Alan
Guest
Alan

Schumer should long since have been taken out and hung, treason strikes me as an all to appropriate charge.

Bob K
Guest
Bob K

It seems to me that the intent behind the 2A is often forgotten or ignored. The most basic right a citizenry can have is to be free of tyrannical government. The purpose of the 2A was to ensure us of the ability to keep ourselves a free people. Only those who would have us enslaved in one form or another want to rid us of our constitutionally guaranteed right to defend ourselves from tyranny. Perhaps this is why Thomas Jefferson said, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants”.

James Higginbotham
Guest
James Higginbotham

and i agree with the good Mr Jefferson.
and we should start WITH ALL COMMUNIST DEMORATS, and any others who TRY AND DISARM WE THE PEOPLE.
the 2 amendment is IN PLAIN LANGUAGE WHICH IS HARD FOR LAWYERS WITH ALL THEIR LEGALIZE TO READ AND UNDERSTAND, LIKE THOSE SO CALLED JUDGES.
but a 6 YEAR OLD CHILD CAN READ AND UNDERSTAND.

Wild Bill
Guest
Wild Bill

As an interesting footnote, today seems to be the ninety-nineth anniversary of the signing of the National Defense Act.

Wild Bill
Guest
Wild Bill

Err, agh hundred and first anniversary. Sorry, it must have been something that I smoked.

Bob M.
Guest
Bob M.

Instead of being an instrument to limit the scope of The State (Federal government), the Constitution has been an instrument for the AGGRANDIZATION of State power, accomplishing the polar opposite of what the instrument was supposed to do. Roger Katz shows up precisely why this is so: the Constitution was written by men and therefore must be interpreted by men, and with this instrument in the hands of State actors, that interpretation has always been in favor of The State, i.e., Fed.gov. John C. Calhoun sums it up brilliantly: “…a written constitution certainly has many advantages, but it is a… Read more »

Big Bill
Guest
Big Bill

When we view any important document, it must be seen as having been written at a certain time, and the words used must be seen for what they meant at that time. Thus, when the constitution is read, including the amendments, we must understand what the words used meant, at the time they were written. We must also understand that such documents, including the constitution, were not written by ignorant farmhands, but by well-educated people who knew well how to express what they meant. If we are able to do that with the 2A, we see that what was meant… Read more »

Wild Bill
Guest
Wild Bill

@the Other Gentlemen commenters, good analysis. There is little that I could add, except maybe that GFYG is terrified of the militia clause having meaning because he, and his liberal shirkers down at the VPC office, knows that he is part of the militia and can be called to help defend this nation. Think of it, “Pvt 2 Mas N. Gil reports for duty, sir.”

Gil
Guest
Gil

I didn’t know conscription was a duty of the 2A? Think all those draft dodgers of the Vietnam days shirking their 2A duties.

oldvet
Guest
oldvet

@gil and bill Clinton was one of them!!!!

Wild Bill
Guest
Wild Bill

@OV, Once again GFYG gets it wrong. Congress’s ability to raise armies does not come out of the Bill or Rights, or more specifically the Second Amendment, but he can still be drafted.

oldvet
Guest
oldvet

@WB would do him good …best thing for him I Like the sound of Paris Island

Wild Bill
Guest
Wild Bill

@OV, Yeah, I like it, too, but I am pretty sure that he would be a suicide. Heck, he can not even get anyone to like him here.

Chiefton
Guest
Chiefton

Come on Gil, you keep getting weaker in you arguments. The 1A is about freedom of speech. The 2A has already been ruled on, through Heller, that the right to form militias and the right to keep and bear arms, are separate and shall not be infringed. All laws after that are infringing in nature and illegal. End of story.

Gil
Guest
Gil

The right to form clubs is part of freedom of association (1A) hence the “well-regulating militia” has no meaning if the individual has right to own guns.

Gil
Guest
Gil

The “well-regulated militia” part of the 2A is clearly then redundant filler. If the right to own weapons and ammunition is an individual right regardless then there’s really no point in mentioning the militias at all. After all, the 1A gives the right of gun owners to form their own groups and call themselves a militia.

citizen
Guest
citizen

You assume the “well-regulated militia” has something to do with the federal government. It does not. These are the peoples right to a regular militia that allow them to resist tyrannical government.

Laddyboy
Guest
Laddyboy

We the Second Amendment clarifyers ARE the Militia. The Second Amendment only RESTATES and CODIFIES that We the People have the RIGHT to possess WEAPONS for defense against Thugs and government IF and WHEN they become TYRANNICAL in nature. This is what the ‘bloombergs’, soros’ and other co-conspirators are proving with their supporting and paying the DOMESTIC TERRORISTS and their ilk.

Gil
Guest
Gil

A tyrannical, rogue government would have to legally abide by underground groups that conspire to overthrow them? Surrrrrrrrre.

Irontiger51
Guest
Irontiger51

No it doesn’t. You are making this crap up.

Leonard Jackson
Guest
Leonard Jackson

Amen! Someone else truly understands what the 2A is really about. The “well regulated militia” absolutely refers to those people able to assemble and fight against a tyrannical government. Hence, the right to keep and bear arms.

RM Molon Labe
Guest
RM Molon Labe

The Bill of Rights “gives” us NOTHING…These right are pre-existing, God given or natural rights we inherit at BIRTH. Proving once again…In a room full of IDIOTS…YOU are truly KING…

Garryowen
Guest
Garryowen

RM Molon Labe,

If you read/post here regularly, you would better understand why we call him GFYG. ‘Don’t feed the animals’ is our mantra. Just simply ignore him.

DrSique
Guest
DrSique

BINGO!!! Like every other leftist, Gil twists himself in knots attempting to make a cohesive argument. The militia was every adult able bodied male(this was pre womens rights movement) and was controlled locally, although during English rule they could be “pressed into service.” No other protected right in our Constitution is “collective” and one can be certain that our Founders didn’t expect “Life, Liberty and Happiness” to protect itself. These values needed a defense and that would come from an armed citizenry. Many believe that the 2A was meant to provide an armed resistance to tyranny and that is not… Read more »

Gil
Guest
Gil

Why should the government have the right to force anyone into military service? The 2A can’t be about freedom and rights if it allows for the draft.

Wild Bill
Guest
Wild Bill

@Anyone other than GFYG, First, the governments have no rights. Rights belong to people. The governments have powers and authorities. Second, the federal government still has the authority to draft people like you, to serve in the military against your will. The draft statute has never been repealed. What gives government the authority to draft people to serve in the military against their will? I don’t know. I volunteered. But I would think that people that look to government to solve all of their problems would know right off the top of their head.

citizen
Guest
citizen

The draft is slavery. Volunteerism should be the only way.

Gil
Guest
Gil

The government has no rights – except to enslave people into their military expeditions. Yeah right. Apparently slavery wasn’t really banned by Constitutional Amendments.

Scott
Guest
Scott

Once again, you haven’t read the article. The argument in the article nullifies your talking points. I’ve seen people tell you not to post here. I disagree with them. Keep posting. It’s a vital reminder that we must never be complacent in protecting our natural rights from Statists.

Garryowen
Guest
Garryowen

Scott,

None of the regular Ammoland commenters would ever ask GFYG to stop posting here. He has a right of speech, which as you know, comes before our right to keep and bear arms. But, we are also free to ignore, shun and/or vilify GFYG as an instigator of lies.

Garryowen. HooooRAH!

Heed the Call-up
Guest
Heed the Call-up

Gil, it’s amazing how you and the rest of us read the same article, but your posts are never on topic. This time you post about the militias being a “redundant” filler and that the 1A gives us the right to call ourselves militias. neither point being a topic of the article. The article explains how Stevens argued that the 2A isn’t about an individual or collective right, but about the right for the militia to exist, and, therefore, it must have arms in defense of State. The use of the term “well regulated” (sic) does not pertain to government… Read more »

Garryowen
Guest
Garryowen

Heed the Call… to ignore GFYG…

Wild Bill
Guest
Wild Bill

Yes, you are right, but that certain “he” is so hard to ignore. Much like the skunk that was run over on the county road, one just has to do something about it. I think that the best that I can do is refer to his nick name while discussing his propagandist blather with others.

Heed the Call-up
Guest
Heed the Call-up

WB, good analogy. Gil is also akin to target shooting, easy to hit, but one should stay in practice. If Gil was the best the antis has to offer, we’d not have to worry about our rights being revoked or illegally constrained. However, he is just a poser, and like a target, is two-dimensional, insentient, and harmless.

LongbowLance
Guest
LongbowLance

The “preamble” to the 2A states the reason that a natural, pre-existing, human right needed to be written​ into the bill of rights at all, and why it is “necessary” that “the right of the people” “not be infringed. I think that you, and most other gun control advocates know this Gil. I think that Justices Souter, Breyer, Ginsburg and Stevens knew this truth to be self evident. But, since they do not like it, and consider it to be an outdated, even a dangerously obsolete notion, they (and you) fight it with sophistry, since there is no way to… Read more »

Wild Bill
Guest
Wild Bill

@LL, Yes, you are correct and generous, too. Souter, Breyer, Ginsburg, Stevens, Kaygan, and Sotominor also know that if there were a successful elimination of the elite and return to the Constitution, they would not be on the bench, but rather on… the scaffold.

Alan
Guest
Alan

At the time of writing, and for a considerable period thereafter the term “well regulated” was generally taken to mean properly maintained, not bound up in endless bureaucratic edicts and baloney, a term I use to hopefully avoid offense to more delicate or sensitive readers.

Mjh
Guest
Mjh

“Well Regulated” was 17th century speak for “well trained”. Hence, the NRA’s original mission, training the citizenry in shooting proficieny, and it was supported by government in this mission.

Sarah
Guest
Sarah

The NRA is an organization that does not protect the 2A. The NRA protects the police surveillance state, not citizens rights. The NRA walks hand in hand with federal power. These arguments about the militia are deliberately framed in a way to keep the focus on the 2nd clause in the 2nd admendment. Individual rights. While ignoring the first clause in the 2nd admendment, or like this decision does, makes the each individual into militias. Gutting the actual power of the 2nd admendment. Which allowing the State’s defense, the militias, state guard, police, to remain under federal control. Why does… Read more »

Heed the Call-up
Guest
Heed the Call-up

Sarah, each one of us is part of the militia, we, the people, are the militia. The 2A isn’t toothless, and the only ones misrepresenting the 2A are those that are anti-rights. The first part of the 2A doesn’t state nor mean that the militia has the RKBA; it’s the second part that states the people have that right, *AND* that it “shall not be infringed.” The intent is quite clear to the honest and the sentient. Regardless of whether or not you believe the NRA is for or against the 2A, it is the only organization that has done… Read more »

Sarah
Guest
Sarah

I appreciate your thoughtful answer. I understand where you’re coming from. However I disagree with you in a couple of key points. I’m not trying to argue with you, I’m trying to define and explain my position better. I’m passionate about our constitutional rights and the only reason I’m going to law school is to fight the tyrannical federal government. Any feedback you can give me is appreciated. The 2A is extraordinary bc it is the only admendment that contains the word necessary. “A well regulated Militia being necessary to the security of a free State”. I interpret that part of the… Read more »

Heed the Call-up
Guest
Heed the Call-up

Sarah, I agree to an extent. As I previously stated, the NRA, as with any group, does not always act in one’s own personal self interest. I do not believe, based on their actions, statements and charter, and paid membership, that they are agents of the state acting against us. It is a large corporate entity. It is comprised of a board that is elected by its paid members, and many millions of paid members. The NRA is the largest group, but the only national group with paid membership, that is engaged in protecting our rights. Sometimes they get things… Read more »

Big Bill
Guest
Big Bill

Unfortunately, I think you’ve interpreted the 2A incorrectly, and here’s why: When the 2A actually gets down to saying there’s a right to keep and bear arms, it specifically assigns that right to the “people,” not the militia. If, in fact, the intent was to make sure the militia has arms, why use “people” instead of “militia”? Even back then, the two groups weren’t the same. Are we to assume the writers got confused? If so, couldn’t we all and each of us make the same conclusion about any part of the constitution we don’t like? As well, I believe… Read more »

Jim Macklin
Guest
Jim Macklin

As I seem to recall, either Cruikshank or Presser , 19th Century SCOTUS cases the Court said the right to keep and bear arms was not granted by the Second Amendment and it was not dependent on the amendment to exist. Even if the Second Amendment is repealed, ignored or otherwise interpreted by a court or legislature, the right still exists. Further, it seems to e, that since adoption of all ten amendments was a condition that was made to ratify the basic Constitution, amending or deletion of any part of the Bill of Rights nullifies the Constitutional Compact and… Read more »