A well regulated Militia,

Well, adult males and females in the National Guard, anyway --

And most ladies are out of luck, under that definition.

Truth of matter is gun fanciers need to learn to read.

That honestly makes no sense to me. I tried grammatically shuffling it a few dozen ways and it still doesn't

Are you suggesting men over the age of 45 are not allowed to own guns? If so you would be mistaken. Seeing as the militia supplies its own firearms there has to be a ready supply. In order for there to be a ready supply "the right of THE PEOPLE to keep and bear arms shall not be infringed."

Further constitutional citations would soon make it apparent that the people cannot be divided by age or other class. And now that the prohibition to women serving in combat military occupations has been lifted I would expect that the law will be amended to encompass all women 17 to 45.

are not in militia unless in National Guard.

Second, apparently that is what you meant and I explained why your selective reading does not hold.

The militia has always been all males ~17 to 45 and at no point in history has the accessibility to guns been denied to men 46 and older or women. Again, as the militia arms itself it must have a ready supply and a ready supply means ready access for purchase and trade.

Annie Oakley. She hunted (with a gun) to help feed her family. She was also known of course for her sharp shooting skills.

She couldn't be in a militia. But she could own a gun. Then there was Ann Hennis Trotter Bailey.

Looking around one finds:
http://www.womenandguns.vcu.edu/

citing u.s. code is interesting and relevant but not a compelling argument regarding constitutional interpretation.

obviously, congress can't make an end-run around the 13th amendment by defining "slavery" in such a way as to make it effectively meaningless, for instance.

They can obviously define who can be in the militia, i.e. age, gender, etc. I think they would be hard-pressed to argue it should be so narrowly defined as to abolish it and I would imagine an outright effort to abolish all militia would raise too many suspicions. I doubt many governors would tolerate it, especially those with state guards.

With a citizen militia, you can still define criteria for exclusion from the militia. If you use drugs. If you ever beat your spouse or partner. If you're mentally ill. If you're a convicted felon. We use and fine-tune this criteria all the time.

Agreed,

So even if Congress somehow eliminated the federal militia law the state laws would still be effective.

so even if both the federal government and the state of massachussets decided to define the militia narrowly as members of the active national guard only; or for the federal government and the state of wyoming to define the militia broadly so as to include everyone, even fetuses; the supreme court would say, well, that's all well and good for you to use that the term "militia" in that way as it relates to federal and state law, respectively, but the term "militia" as it relates to the 2nd amendment is for us to determine, thank you very much.

So the Constitution trumps everything argument goes nowhere.

how is the constitutional interpretation of the word "militia" irrelevant, or somehow superseded by u.s. code and/or state law?

The federal constitution does specifically forbid states from possessing their own navies. Since the federal constitution does not forbid state militias and the states do have militais in-grained in their own constitutions repealing the federal militia law would do nothing on the state level.

I would further imagine it would inhibit the President from federalizing the state militias, if required. So perhaps that is why the statute remains.

the definition of "militia" in the u.s. code sheds little light on how to interpret the term "militia" in the u.s. constitution.

they might as well have used a different term.

But those who would make the argument that only those belonging to a militia tend to argue that not knowing Federal law defines militia in a way that supports their intentions. The closest I've seen to a rebuttal of the point is that our current militarized police forces are the militia thus obviating the allowance for a civil militia. I found the premise -- "interesting."

"arms" or the "militia" the constitution doesn't even specify firearms or any type of firearm. At the time the Constitution was written a single shot flintlock was the state of the art in firearms. Do really believe you are going to stand up to our military with your rifle, get real!

...but good luck getting an amendment passed.

I believe "well regulated" at the time and in the second amendment context was more synonymous with "well equipped". Since it would be necessary for militia members to furnish their own firearms it would be essential that "the people" own the firearms they would bring with them when forming a militia. At the time it makes perfect sense for the people to be guaranteed the right to own firearms if/when they were summoned to duty in the militia.

not some entity like the militia. The 2nd had both an "operative" clause (the peoples RKBA...), and a "justification" clause (well-regulated militia..). Several state constitutions use the same grammar to "justify" such rights as due process, assembly, freedom of the press, etc. without conditioning, modifying, or restricting the rights recognized in the operative clause.

Common practice when the documents were written.

what you have stated as a "fact."

http://www.nytimes.com/2014/05/27/opinion/nocera-right-to-bear-arms-means-this.html?ref=opinion

Interesting historical insight about citizen involvement with the militias. Rather than a right, it was an obligation, so the focus on the 2nd A as a matter of "rights" becomes another thing entirely...here is another take on what you call a "common practice."

It would be interesting to have Nocera's piece posted in both gun fora and see what ensues.

The op-ed relies on a peculiar method. It acknowledges the clause, "the right of the people to keep and bear arms" but then breezes past without explaining why "the right" is not really a right. He proclaims the concept is wrong and then runs away.

Instead the op-ed focuses on argumentum ad anno (arguing to the year/time). Yes, we have a professional army. No, we do not currently rely on citizen militias. However, unorganized militias do figure into federal law and the writers cannot speak to all time nor the desirability of the current system. We, as a nation, may yet come to move away from a professional standing army, either from expense or some other practical matter. We may decide we want to adopt a system such as the one employed in Switzerland.

The article, and presumably the book it cites, refuse to acknowledge the fact that for a militia to supply itself, as it did, then all citizens needed a readily available commercial trade with its manufacturing, distribution and retailing infrastructure. If the militia were to be provided for the citizenry as a whole had to have a market to support. A piecemeal, single purpose system that supplied the militia exclusively would not suffice. This is born out by the fact that laws did not forbid non-militia from the purchasing arms. Hence, "the RIGHT of the PEOPLE to keep and bear arms shall not be infringed."

But that's the part that keep being ignored.

I don't know how "settled" the law was since through much of the first 2 centuries since the revolution there have been fewer than than a dozen SCOTUS cases that even mentioned 2A.

He didn't mention the Miller case in his militia clause argument, but the ban on short-barreled shotguns came as a result of government counsel's argument, and not of defendant Miller: He was dead and his lawyer a no-show when the case was heard.

Not much argument about the militia service requirement he references, don't know what is "surprising" there. But that does not impinge on the RKBA being retained by "the people" unless, as he seems to imply once again, that the "justification" clause conditions the "operative" clause. It does not.

I can't link on this hand-held, but Eugene Volokh in his essay "The Common Place Second Amendment" (google this) makes a sound argument that "justification" clauses did not impinge in "operative" clauses, nor cause a right to "expire" once the justification (militia) no longer exists; it is merely a justification.

Tellingly, Volokh cites several state constitutions which use the same justification-operative language structure when listing Other rights. Who would argue that such justifications condition civil rights in those states? Nocera's views on 2A are outliers when compared with the bulk of scholarly work on 2A.

http://www2.law.ucla.ed

But that's why we have a Supreme Court, to interpret constitutionality. My ultimate point is that if we elect another President for 8 years in 2016, there's a good chance that we'll get to appoint one or more SCOTUS justices. If that is the case, he or she will appoint their replacements...and so far, of the last two Dem presidents who got to nominate SC justices, they all do not agree with the interpretation you lay out here, the "bulk of scholarly work on 2A" notwithstanding.

Gun control might prevent some tragedies (but very few, I would argue). At the same time, it will drive a lot of men (and the women who love them) into the waiting arms of the NRA and the GOP.

It's just not worth it in this political climate. The Democratic Party is already perceived as "feminine" (aligned with feminists and GLBT advocates) while the Republican Party is perceived as masculine (aligned with the masculinist NRA and patriarchal fundamentalist Christianity). If we want more men (and the women who love them) to vote for Democrats, we need to abandon gun control. It's a "boys and their toys" issue. Don't separate the two unless you are prepared to experience the backlash that will result.

My goal is to get a lot of people to stop voting against their best interests. Gun control (as a party platform plank) hurts Democrats in large swaths of the country. We need to get those people to vote for Democrats, and advocating gun control pushes those same people into the waiting arms of the Republican-aligned NRA.

-Laelth

little leery of the "feminine-masculist" dichotemy, as it is posed using gun issues. The precipitous increase in armed women, IMO, is breaking down that stark stereotype. Otherwise, I'm on board with your main objective.

The whole thrust of my latest thread, here, is that the feminine/masculine dichotomy of which you are leery is the central and controlling issue that best explains politics both here in the United States, in the Middle East, and in other Western countries (where we are now seeing the re-emergence of fascism). I understand and appreciate your caution, but I think it all comes down to gender and the massive and unprecedented changes that the West has undergone over the past hundred years in terms of gender power relations.

I have no better explanation for why so many people vote against their best interests.



-Laelth

more. I have a simultaneous attraction to and a cautiousness of theories-of-everything. But you have a serene ability to go about, short-circuiting everyone's billboard, and that will always get my attention!

You are very kind. Thanks.



-Laelth

-Laelth

and write in "slavery",
Your message would result in the exact same meaning, right down to the "boys versus their toys" line.

But I don't think our lack of "more stringent" gun control laws is as morally and ethically repulsive as slavery.

A difference of several degrees, I think.

-Laelth

The Republicans are portrayed doing "masculine" things, and the Democrat is portrayed doing something ... well ... not so masculine (though quite useful).

-Laelth

the matter is not as clear cut as you perhaps think it is.

Assuming the MIC wouldn't throw a fit.

Which would my preference.

Welll, American people. Others aren't that dumb or passive.

that line seems to say it all.
I am in full support of background checks, and waiting periods, before you just hand over a gun to an angry person or a convicted felon, but that is up to the states to make those rules.
If you don't agree with the laws in your state, you can to move to another one, that's the great thing about living here.
I also support hefty jail sentences for anyone in possession of a gun who isn't properly licensed. If they let out all the marijuana related prisoners, we should have plenty of room for the people that actually belong there.
I think trying to get the federal government to outlaw guns is a losing battle, not going to happen, because we have that pesky line in the constitution "the right of THE PEOPLE to keep and bear arms shall not be infringed."
My two cents.

nice try ... but fail

Let's start with what you believe to be the definition of a "well-regulated mailitia". I am guessing, but i assume your example of that would be the National Guard, which by the way was not in existence when the amendment was written.
Right off the bat I would ask, why does the government need an amendment to the constitution to guarantee itself the right to allow a soldier to carry arms? Doesn't make sense to me.
Every amendment in the bill of rights is there to protect the rights of the people, all people, from an overbearing government. So why should the second amendment be any different that the rest? I don't believe it is.

That's what the NRA does ... at their headquarters you will see inscribed only PART of the Second Amendment.

A well regulated militia, being necessary to the security of a free State is replaced with an an ellipsis. (Actually, not even a full ellipsis ... just two dots.)

the other 9 amendment of the BoR...Methinks it speaks to the founders desire to avoid a standing army, which they saw through the lens of the 18th century. Well, we got the standing army anyway. Good thing, too, or otherwise our goose would have been cooked, not to mention the west not won...

This is the basis of all the debate, right? All we know is what they wrote, but they were quite brilliant in their wording, leaving things open for interpretation. These posts are my interpretation, right or wrong that's how I see it.
I certainly don't think they wanted to avoid having standing army though, never heard that one before.
It's called the bill of rights, I don't think they intended to guarantee all citizens of the United States 9 rights, and one right only if you are in the US army, or National Guard.
Again, just doesn't make sense to me.

a standing army could be a threat to individual rights.So take the standing army out of the equation. Now you have the people defending their rights with militias. I think that's where the militia language comes in.

constitutional interpretation is heavily about weighing the competing clauses in the constitution.

the first amendment preserves free speech, yet speech is limited in many circumstances. one classic is yelling "fire" in a crowed theater (or course they always forget to mention "falsely". it may simply be the "promote the general welfare" part of the preamble that gives the government the right to prohibit this notwithstanding the first amendment.

and it also prohibits establishment of religion, yet belief in god is enshrined on our currency. what competing clause enables this i have no idea, but i'm consistently told my concerns here are laughably trivial.


in any event, yes, of course, the second amendment talks the right of the "people", but reasonable interpretation of the second amendment cannot be done without paying close attention to the rest of the constitution, and in particular, the "well-regulated militia" part of the same amendment.

time neutrality (no chants of "Schweiz! Schweiz! Schweiz!"; and their basic "European-ness," which does not include our "Wild West" national psyche.

http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland

I read that link to gun politics in Switzerland and it listed some interesting restrictions...maybe they were thinking about that "civilized" piece...

private citizen to own guns in this country?

(Don't give me D.C. Or Chicago, I am referencing the nation.)

This is a well regulated Militia

This is not a well regulated Militia

This was a well regulated Militia

This is not a well regulated Militia

This was a well regulated Militia .

This is not a well regulated Militia

Any Questions?

Wolf

True, I hear comments like "oh wow look how big it is" and "ohhh...what a cold hard barrel", but those people are just insecure. I on the other hand, am proud to be able to show it off on the outside...er...a proud second amendment patriot!

That'll regulate 'em.

Clearly the intent was for guns for a militia, not individuals, gun nuts be damned.