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Sat May 28, 2022, 03:55 PM

The reality of the 2A, "well regulated" and the "individual right to bear arms"...

Last edited Sat May 28, 2022, 11:27 PM - Edit history (2)

I see a LOT of confusion on these things.

Scholarship has been focused on them for decades and I thought I'd like to clear up some of the nonsense.

1) What was the 2A and why was it included in the Bill of Rights and Constitution?

So it's 1789. The Constitution has been written and ratified by many States.

It's decided that a Bill of Rights be added that guarantees protections, aka taking power away from the Federal Gov't.

It's important to remember the world in 1789.

The fledgling USA was acutely aware and afraid of the ability for a tyrannical Federal Gov't to terrorize it's people.

The Bill of Rights is full of features to keep the Fed Gov't from doing just that.

The 2A was written. Here's the big line:

"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."

Now what does that mean and what was the context?

The document is obviously unclear so we head on over to Federalist #46 and hear from James Madison.

Madison clearly said (I paraphrase) If the Federal Gov't were to become tyrannical and turn on the American people, it would be the duty and obligation of the State militias to defeat them in combat if needed.

Full text below:

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

2) So what's a militia?

Think of the militia as our modern State National Guard. In 1789 it wasn't as formal and organized as it is today. The militia was just about every fighting age male, working on a farm or industry.

3) Well regulated?

The phrase had a meaning in 1789. It's used in contemporaneous documents and most certainly means "well trained, equipped and performing at a set standard."

4) Did the Constitution establish the "Individual Right" to keep and bear arms?

It did not. That was not adopted into law until 2008.






Key takeaways.

Note: I hadn't read any of these documents recently so this is just from memory and a t may need to be crossed or an i, dotted.



** The Constitution was written and the country founded with the intent to make the States serve as a check on the Federal Gov't and an adversary if necessary.

** This is ensured by the 2A, a requirement for States to have a well equipped and trained militia to serve in a "Break glass in case of emergency" to indeed battle the Federal Gov't if needed.

** There is no individual right to keep and bear arms in the Constitution? That is simply because the founders couldn't imagine a population without guns as in the 18th Century was a necessary and vital tool in each and every house.

Having said that, there is nothing standing in the way of States an/or the Federal Gov't enacting laws and regulation of guns.

It may take a Constitutional Amendment or a new SCOTUS though...

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Response to WarGamer (Original post)

Sat May 28, 2022, 04:07 PM

1. Good stuff. This clause from your post is a good argument against...

the strict constructionists who believe the Constitution should be interpreted as written.

"** There is no individual right to keep and bear arms in the Constitution? That is simply because the founders couldn't imagine a population without guns as in the 18th Century was a necessary and vital tool in each and every house."


Even the second sentence works against their stance that the Constitution has to be taken at its word as written.

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Response to brush (Reply #1)

Sat May 28, 2022, 04:10 PM

2. +1000 nt

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Response to WarGamer (Original post)

Sat May 28, 2022, 04:26 PM

3. The Constitution says what the Supreme Court says it does.

 

If Congress passes laws that it sees as going too far in barring firearms, it will just deem those laws as unconstitutional.

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Response to asa4ever (Reply #3)

Sat May 28, 2022, 04:31 PM

4. yup...

Which is why I finished up with:

It may take a Constitutional Amendment or a new SCOTUS though...

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Response to WarGamer (Original post)

Sat May 28, 2022, 05:00 PM

5. Two questions for ya':

If the founders had written the 2nd as a suicide pact, why does Article 1 section 8 allow the very government you think the militia was designed to overthrow to call it up?

If the founders wanted the militia to take over the government by force why does Article 3 section 3 define that very act as treason?

On a practical note there would have been 13 separate militias. What are the odds that all 13 would be willing to commit treason? Did the founders intend a constant civil war?

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Response to AndyS (Reply #5)

Sat May 28, 2022, 05:06 PM

6. There's a lot of gray area in the Constitution...

Don't forget, even at that time we were split between Federalists and anti-Federalists.

So you'll see seemingly contradictory things that exist because anti-Federalists wouldn't go along without something added.

Clearly it was thought that if the Federal Gov't became the tyranny they feared... that would override laws re: treason, etc. because the Fed Gov't no longer adhered to the Constitution and at that point was a break-away entity.

Think of it as good gov't/bad gov't

When the Fed gov't is good... the militia serves it and can be called up to protect the nation.

When/If the Fed gov't goes bad... the same militia can march AGAINST the Federal Gov't.

Think in an 18th Century context.


Let's just say... in 1798 a new President allied with England again and sought to return the country to England. They assembled a standing Federal Army... then the militias are obliged to line up against the standing army.

The treason argument is moot.

I used the "Break glass in case of emergency" example earlier... I think it is accurate. You can't break the glass for fun or pull the alarm lever to watch the fire trucks drive around... it's a last ditch measure.

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Response to WarGamer (Reply #6)

Sat May 28, 2022, 06:05 PM

9. I disagree. This entire bull shit about overthrowing the government is NRA

fiction. The second doesn't mean any of the crap that the gun culture has imbued it with. Nor does it, as Scalia ruled, contain anything about an individual right. The right wing side of the court is prone to read into the Constitution anything they want. Like women's rights or lack thereof and a right to privacy that seems to wax and wane.

The founders did not want a suicide pact. The militia acts of 1775 and 1786 gave the federal government the power to conscript citizens into the militia and made any soldier involved in rebellious behavior liable to court martial. I've cited article 1 and 3 that place the militia under the power of the federal government.

Reinforcing the craziness of the NRA interpretation of the 2nd is akin to sedition.

You describe a List of Suggestions of the United States, not a Constitution.

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Response to AndyS (Reply #9)

Sat May 28, 2022, 06:22 PM

11. again...

Last edited Sat May 28, 2022, 11:38 PM - Edit history (4)

Once a Federal Gov't "goes rogue"article 1 and 3 go out the window. I gave you a perfectly clear example about a fictional 1798 coup attempt and you ignored it and then threw in crap about the NRA.

The 2A refers to militia in a way... reinforced by writings by Madison and others...

The militia is a tool of the Federal Gov't AND IF that Fed Gov't goes bad... turn against the Founding principles and becomes treasonous itself... the militia is charged to defeat it... because at that time it's NO LONGER the legal acting gov't of the US, it's an attacking entity.




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Response to WarGamer (Reply #11)

Sat May 28, 2022, 07:34 PM

13. One more time slowly right back at ya'

I've read Hamilton and Madison. I've read all the federalist papers. I have read our history. My take away is completely foreign to yours, so, yeah you would have to spell it out.

That said I don't have a degree in Constitutional law. I'm curious if you have one. If so I'll defer to you. If not my interpretation is as valid as yours.

My interpretation is that there was a concern in some quarters that a militia organized at the state but placed under the control of the Federal would be no different than a standing army. Hamilton's defense was, in current lexicon, 'Don't be silly. The militia is your fellow state citizens and wouldn't surrender the nation's states to a corrupt central power.' I haven't found any evidence that the founders, Hamilton or others, saw the 2nd as a suicide pact.

I have pointed out things embedded in the Constitution itself that counter the idea that the founders, any of them, planned to have the militia rebel against the newly established Federal government. In return I've been given hypothetical scenarios and speculation on what they really meant.

I submit that you should keep in mind that the Constitution was not written to diminish the government's power but to enhance it. After all they had just come from the Articles of Confederation, that 'government that governed least didn't govern well'. Great pains were taken to delineate the margins of power but make no mistake, the convention was called to correct the lack of central control. Put your head in a 1787 kinda' place after ten years of state bickering in the face of foreign avarice.

I am not a moron and am well educated. I do not appreciate your approach to disagreeing with me.

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Response to AndyS (Reply #13)

Sat May 28, 2022, 08:29 PM

15. This could be a "key takeaway," as the OP says

Sez the OP:

Key takeaways.

Note: I hadn't read any of these documents so this is just from memory and a t may need to be crossed or an i, dotted.


I think it's within the realm of possibility that the OP maybe should have read any of those documents to refresh his recollection.

It appears to me that, more than the odd crossed T or dotted I, the OP might need a whole new alphabet.

I'm not quite sold by the OP's argument.

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Response to dpibel (Reply #15)

Sat May 28, 2022, 11:23 PM

18. Even that I typed incorrectly...

Note: I hadn't read any of these documents recently, so this is just from memory and a t may need to be crossed or an i, dotted.

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Response to AndyS (Reply #13)

Sat May 28, 2022, 11:21 PM

16. My apologies... I warned you guys about my recall or lack thereof!

I meant Madison and Federalist 46...

Other than that... my opinion and analysis still stand.

Again... sorry for the "brain-fart"

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Response to WarGamer (Original post)

Sat May 28, 2022, 05:23 PM

7. California has a volunteer militia called the California State Guard...

part of which is organized separately from the National Guard, with the governor acting as the commander-in-chief.

Although its purpose is mainly to protect citizens in times of disaster or unrest, I would think this could be a modern day version of what the 2nd Amendment addresses. In case a tyrannical president should decide to invade and attack citizens for some reason, I would think a state militia could act in defense.

What is a militia?
Federal and state laws generally use the term “militia” to refer to all able-bodied residents between certain ages who
may be called forth by the government to defend the United States or an individual state. See 10 U.S.C. § 246.
When not called forth, they are sometimes referred to as the “unorganized militia.” A group of people who
consider themselves part of the able-bodied residents referred to as members of the militia under state or federal
law is not legally permitted to activate itself for duty. A private militia that attempts to activate itself for duty,
outside of the authority of the state or federal government, is illegal.
...
Does the Second Amendment protect private militias?
No. In fact, the Supreme Court decided in 1886—and repeated in 2008—that the Second Amendment “does not
prevent the prohibition of private paramilitary organizations.
” District of Columbia v. Heller, 554 U.S. 570, 621 (2008)
(citing Presser v. Illinois, 116 U.S. 252 (1886)).


https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2020/09/California.pdf

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Response to WarGamer (Original post)


Response to WarGamer (Original post)

Sat May 28, 2022, 06:12 PM

10. The rights under the 2nd Amendment should not infringe on our inalienable rights

to Life, Liberty and the Pursuit of Happiness. That should also apply to the 1st Amendment.


https://legaldictionary.net/inalienable-rights/

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Response to WarGamer (Original post)

Sat May 28, 2022, 06:53 PM

12. Did you overlook a cite?

You say:

The document is obviously unclear so we head on over to Federalist #29 and hear from Alexander Hamilton.

Hamilton spoke of King George III and the standing army of England used to subjugate citizens.

Hamilton felt that a Federal standing army posed a real threat to Liberty. And in the 18th Century... he was right.

Hamilton literally wanted the States to be able to go to war with the Federal Gov't if necessary.


It appears that you are saying that all that follows the first quoted paragraph can be found in Federalist 29.

It can't. None of it.

Not a mention of George III, neither by name nor by inference. No mention of the standing army of England.

No statement that a standing army posed a real threat to liberty.

And certainly nothing that remotely amounts to "literally wanted the States to be able to go to war with the Federal Gov't."

Read it for yourself:

https://founders.archives.gov/documents/Hamilton/01-04-02-0186

Where I come from, when you misrepresent a source that badly, you're well on your way to discrediting your whole argument.

Or did you pull all that stuff out of some source other than Federalist 29 and forget to cite your source?

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Response to dpibel (Reply #12)

Sat May 28, 2022, 11:22 PM

17. My apologies... I warned you guys about my recall or lack thereof!

I meant Madison and Federalist 46...

And re: KGIII and such things, elsewhere in the Federalist papers or even the Declaration of Independence.

Other than that... my opinion and analysis still stand.

Again... sorry for the "brain-fart"

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Response to WarGamer (Original post)

Sat May 28, 2022, 08:23 PM

14. A few things.

I'd say the BoR doesn't establish but enumerate already existing rights so that they will be noticed and observed.


Look at Cruikshanks, Presser, and and Miller (1875, '86, 1937, resp.).

The first said there was no individual right to bear arms, with the case being about whether a mostly black militia out to keep anti-Reconstruction Democrats from claiming office when they lost the elections. By saying there was no individual right, the brutal and harsh treatment of the mostly black militia at the hands of white anti-Reconstructionists was rendered legitimate.

Presser dealt with the rights of workers to organize, armed, to protect themselves against rent-a-cops like the Pinkertons. By reiterating that there was no Constitutional individual right to bear arms, the workers in this case were told that they had no right to armed self defense.

Until 1875 and the racism-soaked SCOTUS decision, allowing the states to regulate the crap out of firearm use (so blacks couldn't bear arms but whites could), there was no guiding interpretation. That's 86 years when it wasn't an issue. By and large states were mostly hands off in ways that the majority whites wanted, and very much hands-on in ways that the majority whites wanted. Presser just said that the ruling classes also controlled, and were typically content with, the states' regulation of firearms.

Miller involved an FDR law and it went awry because the plaintiffs didn't show up for arguments. In the end, no 2A individual right, except to the extent that the use of any weapon reasonably used in a state militia was covered. That meant there was no right to carry a sawed-off shotgun. (However, machine guns were reasonably used in a state militia--and now who knows what Miller would cover?)

It's been noted that if SCOTUS overturns Roe it would be the first time that it ruled to limit individual rights. Overturning Heller would accomplish the same roll-back on individual rights.

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Response to WarGamer (Original post)

Sun May 29, 2022, 07:28 AM

19. Placing an awful lot of emphasis on the State Militias vs the federal army,

And not enough on the State Militas being effecient enough to avoid the pretext for maintaining a large standing army in the 1st place.

Mr. Gerry.--This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary.
Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins



The whole purpose of the 2nd is to ensure the CONTINUED existence of THE militias and to secure the peoples’ role in them. {“Well regulated” “necessary” “not be infringed”} It was our right (and obligation) to possess and bear arms to make up effective militias. The new govt could not usurp or ignore their new powers re: the militias in any way that would make them ineffecient. They couldn’t disarm them they couldnt weaken them, etc. in fact, the roles assigned to the militias and the people should have already guaranteed their CONTINUED right to arms, but to be clear - the 2nd made it explicit.

Mr. Scott objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army.


The roles of the Militias was spelled out quite clealry, in the Constitution. We the people would CONTINUE to serve in the entities that would be the 1st line to secure our liberties, and assist the new govt when needed, to secure the freedoms that were guaranteed to us.

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