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.

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  • 101 thoughts on “Militia Clause In The Second Amendment

    1. 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

        1. 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.

    2. 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 1959 when Alaska and Hawaii joined the Union they each copied the Second Amendment in this form…

      “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.” It seems simple and straight forward, I’ve understood it for over 60 years.

      But to make it easier to understand, try this very slight change which does not change the amendment in any way other than clarification.

      A well regulated militia being necessary to the security of a free state ? [Yes, obviously therefore]
      “The right of the people to keep and bear arms shall not be infringed.”

      1. 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

    3. 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 way, such as “well trained”, the words “well regulated” have no grammatical connection to the rest of the sentence and could be left out without changing the meaning, the condition of which cannot Lawfully belong to the Constitution:

      U.S. Supreme Court
      Holmes v. Jennison, 39 U.S. 14 Pet. 540 540 (1840)
      In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added. The many discussions which have taken place upon the construction of the Constitution have proved the correctness of this proposition and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning,Page 39 U. S. 571
      https://supreme.justia.com/cases/federal/us/39/540/case.html

      1. 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.

        1. 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 the militia shall not be infringed.
          However, the Second Amendment was written with two clauses and one comma. In 1959 when Alaska and Hawaii joined the Union they copied the Second Amendment with one comma.
          To clarify the meaning I’ve made a small change that makes the meaning clear.
          A well regulated militia being necessary to the security of a free state ? [yes, therefore]
          “The right of the people to keep and bear arms shall not be infringed.”

          1. 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.

            1. 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” sites reporting the Supreme Court show summaries and later revisions after the Courts learned that Mr. Miller was dead.
              This might help http://www.stephenhalbrook.com/law_review_articles/2nd.amendment.supremecourt.pdf
              The important parts of MILLER are the dicta [ conversational trivia ] where the Court said they did not know enough to decide the case saying “it was not within judicial notice [legalese” , for there is no transcript and sworn testimony] whether possession of a sawed off shotgun has any military purpose.”
              The one thing the SCOTUS was sure about was that when a militia was called the men were expected to appear bearing “their private arms” of current type and kind.
              It is troubling that the MILLER case is being edited to try and justify “gun control”. It stinks like Orwell’s 1984 government history revisions.

      2. 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., makes the most sense.

    4. 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 have committed treason on multiple occasions. Free food, free housing, free education, open borders, and sanctuary cities are a recipe for total destruction from within. Look at Venezuela and their crashed economy. So, are they really that stupid, or do they have a plan? Remember, Clinton signed the Bank reform bill that did away with Glass Steigal act which resulted in the 08-09 stock market crash. Clinton signed the 94 assault weapon ban. Clinton signed the communications reform act that allowed 5 corporation to control all media in the USA. Don’t forget Obama (Barry Soetoro) added ten trillion to the debt, and let in millions of Muslims. Run for office, and put a stop to the madness.

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

      1. 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?

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

          1. 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.

    5. 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. Stevens clips two sentences from a George Mason speech in the 1788 Virginia State Ratifying Convention dealing with the militia powers amendment. He then argues that the amendment proposal relevant to Mason’s quoted argument was instead the Second Amendment predecessor. Anyone looking at the entire short speech will see that Mason specified a militia powers amendment at the end of his speech and noted it was the only amendment necessary to that part of the Constitution. The militia amendment actually stated by Mason had nothing whatever to to do with the Second Amendment’s predecessor or the proposed Bill of Rights, and the fact that it was the only amendment proposed relating to the militia powers means the Second Amendment predecessor was not related at all to that subject as understood by Mason, who was the author of both proposals.
      Justice Stevens’ dissent includes an extensive circular argument based upon his assertions regarding the intent of the “well regulated militia” language in the Second Amendment, which is the point in dispute. To prove his assertion correct, Stevens quotes numerous other Founding Era “well regulated militia” language examples, all of which are essentially disputed points themselves. Some of these other quotes contain language directly contradict Stevens’ assertions regarding the well regulated militia language.
      For the documented historical evidence see Justice Stevens’ Train Wreck Of American History, which is Part 1 of a six part series entitled District of Columbia vs Heller Dissent at On Second Opinion Blog.
      http://onsecondopinion.blogspot.com/2014/02/the-district-of-columbia-vs-heller.html

      1. 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

    6. 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.

    7. 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 Regulated” while the “General Militia” was the armed populace. I took this interpretation from a book called “The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792

      1. @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?

        1. 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 will become of your freedom?”

          1. @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?

        2. 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 be kept well organized, armed, and …

          The Authentic Constitution: An Originalist View of America’s Legacy
          https://books.google.com/books?isbn=0875867065
          Arthur E. Palumbo – 2009 – ‎History
          Sec 311(a).1 During the years just prior to the ratification of the Constitution, the idea of a “select militia” was discussed quite often at the state ratification debates …

          A simple Google search

          1. @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.

            1. 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/

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

        4. 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.

          1. 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.

      2. 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 began:

        “17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state;”

        Thus, the Second Amendment’s immediate ratifying convention predecessor defined a well regulated militia as the body of the people trained to arms. How can that language possibly be understood as intending a “select militia”?

        The term “militia” always implied the body of the people unless “select” was added. In the Federalist #29, Alexander Hamilton described the militia as “the whole nation” and “the people at large”. He used “select corps” to describe militia consisting of less than all of the people.

        Well regulated militia simply meant the militia (the people) were capable of effective defense. This is Revolutionary Era language enshrined in early American bills of rights. The militia clause in Virginia’s proposal for the Second Amendment,above, is an exact quote of the militia clause from Virginia’s 1776 Declaration of Rights adopted prior to the Declaration of Independence.

          1. 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 Fourth through Eight Amendment related proposals Mason was referring to?

            These Bill of Rights protections, including armed population protections in the language of either one or the other clause of the Second Amendment, preexisted the writing of the U.S. Constitution in every Revolutionary Era state bills of rights. Mason had argued in the Federal Convention that it would only take a “few hours” to draw up a bill of rights for the U.S. Constitution “with the aid of the state declarations”. [OSA, p.12]

            What is the logical basis for interpreting something intended as a clear limit on Federal Government power, based directly upon a clear limit on state government power, instead as a “justification” for government power, while completely ignoring the plain “essential and unalienable rights of the people” language?

            Is is simply an inherent urge to troll?

            1. @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.

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

              WB,

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

              Garryowen

        1. 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 what a lot of (supposedly learned) judges have ruled.

          1. 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.

          2. 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 believe that Benjamin Disraeli offered the following, long after Madison had departed this veil of tears. “Brevity being the soul of wit, to wit be brief.” Sad to note Madison, who could have been, wasn’t.

    8. “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.

    9. 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

    10. 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 presented during case arguments.
      In the Second Amendment, it is the government “Militia” (as defined in the body of the Constitution) that is “well regulated” by the “People” that “keep and bear arms”. If this is not the factual meaning of the Second Amendment, I challenge anyone to show how the words “well regulated” in the text become anything but superfluous by any other rendering.

    11. 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 is necessary for B therefore it follows that C is essential. Or, “A well regulated militia being necessary to the security of a free state, The right of the people shall not be infringed.”
      The militia will always exist when the people are armed. The well regulation of the militia was standards of arms by caliber and equipment required that each citizen was required to possess.
      Today, each citizen should own a Militia Standard Rifle, wrongly called a modern sporting rifle.

        1. 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.

          1. @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?

            1. @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?

            2. 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.

            3. 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?

            4. 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.

    12. 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”.

      1. 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.

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

    14. 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 great
      mistake to suppose that the mere insertion of provisions to restrict and
      limit the powers of the government, without investing those for whose
      protection they are inserted with the means of enforcing their observance,
      will be sufficient to prevent the major and dominant party from
      abusing its powers. Being the party in possession of the government,
      they will … be in favor of the powers granted by the constitution and
      opposed to the restrictions intended to limit them. As the major and
      dominant parties, they will have no need of these restrictions for their
      protection. … The minor or weaker party, on the other contrary, would
      take the opposite direction and regard them as essential to their protection
      against the dominant party …. But where there are no means by
      which they could compel the major party to observe these restrictions,
      the only resort left them would be a strict construction of the constitution
      …. To which the major party would oppose a liberal construction-
      one which which would give to the words of the grant the
      broadest meaning of which they were susceptible. It would then be
      construction against construction-the one to contract and the other to
      enlarge the powers of the government to the utmost. But of what possible
      avail could the strict construction of the minor party be, against the
      liberal interpretation of the major, when the one would have all the
      powers of the government to carry its construction into effect and the
      other be deprived of all means of enforcing its construction? In a contest
      so unequal, the result would not be doubtful. The party in favor of
      restrictions would be overpowered …. The end of the contest would be
      the subversion of the constitution …. the restrictions would ultimately
      be annulled and the government be converted into one of unlimited
      powers …. Nor would the division of government into separate and, as it
      regards each other, independent departments prevent this result …. as
      each and all the departments-and, of course, the entire government-
      would be under the control of the numerical majority, it is too
      clear to require explanation that a mere distribution of its powers among
      its agents or representatives could do little or nothing to counteract its
      tendency to oppression and abuse of power.”

    15. 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 is that the right of the people to keep and bear arms is central to the ability of the state (country) to defend itself.
      And, since the country as established (the USA) is made up of the people (we are, after all, a republic with the representatives and president democratically elected), that right to self-defense must also apply to the people, as the amendment itself says. Where the 2A says, “…the right of the people…”, the writers could have said “…the right of the militia…” but they instead used the word “people,” because that it what they meant. The choice of words was debated (we have contemporary writings to prove that), and carefully chosen. Therefore, the 2A rather obviously protects the right of the people (that’s all of us) the right to keep and bear arms. There is really no reason that should be in debate.
      As far as “infringed,” the word used here means attacked on it’s edges, because the root, fringe, is something that goes around the edge of something (“The surrey with the fringe on top”). To remove the fringe, you remove that which goes around the edge of something, in this case, the RKBA. The meaning is clear: This right is not to be attacked, even at its edges. Certainly not at its core.
      Yet, we have many people, elected and appointed, who have power over our lives, who simply ignore these facts, violate their oaths of office, and specifically the 2A, in order to please their ignorance and that of their “owners.”
      Gil is not one of these, but certainly would like to be, but he only shows his ignorance of history. If he were a little more educated (and it doesn’t take college, merely a desire to know instead of blindly repeating what he’s heard) he might actually understand what’s going on around him.

    16. @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.”

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

          1. @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.

            1. @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.

    17. 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.

      1. 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.

    18. 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.

      1. 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.

        1. 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.

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

        3. 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.

      2. 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…

        1. 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.

          1. 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 untrue. More though, our Founders believed that a right to arms would prevent tyranny from rearing it’s ugly head in the first place. They just never expected activist liberal justices, with lifetime appointments, who would try to turn the plain language in our Bill of Rights upside down.

            1. 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.

            2. @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.

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

      3. 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.

        1. 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!

      4. 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 rules or laws, but its ability to perform well.

        Stevens argument falls flat due to the fact that without people having arms, there can be no militia. I don’t see how a people can collectively have the right to arms without the individuals having the right to individually have arms. It would be like saying a house can have doors, but no room or entryway is allowed to have doors.

        Lastly, the Bill of Rights does not “give” us rights, it *guarantees* them. The 2A is the most strongly worded or them, “shall not be infringed”. What meaning do you take from those words?

          1. 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.

          2. 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.

      5. 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 simply strike down a portion of the Bill of Rights.

        1. @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.

      6. 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.

      7. “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.

        1. 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 this matter? Individual rights don’t threaten Fed power. State’s militas do. The militias were to protect state citizens from the federal government. Instead state’s citizens have no defense against the corrupt federal agencies doing the things they are doing, such as warrantless surveillance, drafting state’s citizens into the corrupt Federal government’s military, and Federal agencies such as the CIA, NSA, FBI and DHS can supersede the laws of state government and the will of the citizens in the state.

          The second admendment was quickly stripped of its power, which is why it was gutted in 1792. If the NRA actually protected the 2A, they would be at war with the federal government, not the weak controlled opposition that they are.

          The 2A is toothless due to the 1st clause being misrepresented by organizations pretending to champion it.

          1. 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 the most to protect our 2A rights. I agree that sometimes it isn’t quite right, but sometimes one must accept the least offensive option over the worst. Sort of like how we elect our presidents and other Congress critters.

            1. 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 2A as the is where the real power of the 2A is. Washington thought so as well, bc he quickly took the state’s militias away and put them under federal control. Leaving the state’s vulnerable to the tyranny of the centralized federal government, as the militia is “necessary ” for the free state to survive.
              In Federalist papers no 29, a militia is defined as a “uniformed group similar to that of an organized military.”
              The essay also indicated that each state will be responsible for having their own militia.

              Hamilton defined the militia, as “it is constituted directly of the people and managed by the states.” In fact a well orginazed militia is distinctly different from unorganized militia. An unorganized militia is closer to you what described in your answer.

              By quickly removing the militia from the individual states,, Washington correctly identified and neutralized the biggest threat to the newly formed federal government, and instead put the State’s militias under federal control.
              Thus rendering the 2A toothless.

              The government has successfully diverted attention away from the issue of the state’s right to be free from federal control, and instead put the attention on individual gun ownership.

              What will happen to you if you started legally stockpiling weapons and it flagged attention from the feds? You would most likely be charged with something bogus and your weapons taken. There are countless cases all over this country of the government doing just that.

              We have the individual right to own guns. Why? Bc individual gun ownership does not pose a threat to the government. The government has taken the part of the 1st, all of the 4th, and part of the 5th admendments from us. We no longer have the right to habeus corpus. The Fed uses the CIA, NSA, and the FBI to commit crimes with impunity against the citizens of this country. If that’s not a tyrannical government I don’t know what is. How is the individual right to own guns protecting us from that? We have the individual right to own a guns, so why have our rights been stolen from us? Bc it doesn’t protect us from the Fed. Contrast that with each state having an organised, well armed militia, such as the national guard to protect states citizens rights. Do you honestly think the Fed would be able to have passed the unconstitutional, grotesque, and Orwellian laws such as the patriot act or the 2012 NDAA? No.

              Lastly I understand the desire to defend the NRA for defending the 2A. And they have done a great job defending individual rights. But the NRA has distorted the public’s image of the 2A. They do not stand up to the government. They are complicit with the government.

              The NRA has spent the past 20 years pushing for the militarization of the police. The NRA have remained silent in many police brutality cases bc of their alliance to the police state. The NRA an enemy to the citizens of this country. The NRA is not protecting the constitution.The NRA is protecting state power against the citizens. And anyone who defends the police over the citizens does not protect constitutional rights.

            2. 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 wrong, and compromise where we would prefer to maintain our rights. However, sometimes they political winds are blowing so hard that getting a bad compromise is better than losing everything.

              Pelosi stated, back at the time of the Clinton passed “assault weapons” ban, that if she could have gotten 51 votes, she’d have banned all firearms. That is the end goal of those that are anti-rights. Occasionally they slip and state that. Bloomberg has been quoted as stating that as mayor, if he could have gotten firearms out of the hands of young black men, he would have.

              At some point, all nations fall. Ours has lasted quite long, and survived a brutal, costly – in many ways – civil war.

              Most that post on this site believe in our country, our Constitution, and our rights, and are active in rights groups, and contact our reps on issues of import.

          2. 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 you’ve misinterpreted the mission of the NRA. To say “If the NRA actually protected the 2A, they would be at war with the federal government…” is kinda going overboard. You offer nothing to support your assertion, so maybe you spoke off the top of yourhead, but missed the mark?

      8. 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 begins a verbal or shooting revolution as described in the Declaration of Independence.
        In the record ELLIOT’S DEBATES the Virginia Legislature was debating whether to ratify the new U.S. Constitution. It is too long to post here but I will copy and paste some critical parts
        http://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-vol-3#lf1314-03_head_003
        Mr. HENRY. Mr. Chairman, I am much obliged to the [44] very worthy gentleman for his encomium. I wish I was possessed with talents, or possessed of any thing that might enable me to elucidate this great subject. I am not free from suspicion: I am apt to entertain doubts. I rose yesterday to ask a question which arose in my own mind. When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing — the expression, We, the people, instead of the states, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England — a compact between prince and people, with checks on the former to secure the liberty of the latter?…
        …My great objection to this government is, that it does not leave us the means of defending our rights, or of waging war against tyrants. It is urged by some gentlemen, that this new plan will bring us an acquisition of strength — an army, and the militia of the states. This is an idea extremely ridiculous: gentlemen cannot be earnest. This acquisition [48] will trample on our fallen liberty. Let my beloved Americans guard against that fatal lethargy that has pervaded the universe. Have we the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress? The honorable gentleman said that great danger would ensue if the Convention rose without adopting this system. I ask, Where is that danger? I see none. Other gentlemen have told us, within these walls, that the union is gone, or that the union will be gone. Is not this trifling with the judgment of their fellow-citizens? Till they tell us the grounds of their fears, I will consider them as imaginary. I rose to make inquiry where those dangers were; they could make no answer: I believe I never shall have that answer. Is there a disposition in the people of this country to revolt against the dominion of laws? Has there been a single tumult in Virginia? Have not the people of Virginia, when laboring under the severest pressure of accumulated distresses, manifested the most cordial acquiescence in the execution of the laws? What could be more awful than their unanimous acquiescence under general distresses?…
        A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, [52] when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them….
        If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. I cannot with patience think of this idea. If ever he violates the laws, one of two things will happen: he will come at the head of his army, to carry every thing before him; or he will give bail, or do what Mr. Chief Justice will order him. If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of every thing, and being ignominiously tried and punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your [60] President! we shall have a king: the army will salute him monarch: your militia will leave you, and assist in making him king, and fight against you: and what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?…”

        Patrick Henry said far more than “give me liberty or give me death” yet that is about all most people know about this great man and patriot.

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