The 2nd Amendment and following laws clearly draw the line as to what classes of arms are protected.

[johnbraun]

The 2nd Amendment very clearly protects militia arms (that is, individual weapons) as laid out in the Militia Act of 1792 that specified EXACTLY what a militia member should provide for himself - that is, a standard caliber modern military rifle with sufficient ammunition. The modern day equivalent is the M16 and a load of 180 rounds in magazines. Therefore, it is indisputable that the 2nd protects all standard issue individual weapons of the US armed forces, and not howitzers, tanks, or atomic weapons. I hereby declare this line of specious anti reasoning dead, and will refer to this thread when disproving weak arguments of the form:

("Well, I'll just go out and buy a nuke for my garage! The 2nd protects my right to have a nuke, right? Who are you to say that the 2nd doesn't protect nukes? It's not written down anywhere! Ha ha!")

Ah, but you are wrong. It is written down very clearly what arms are protected under the 2nd:

http://www.constitution.org/mil/mil_act_1792.htm

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

"But but but no one came to my house and told me I'm in the militia! So there!"

Sigh. You're already enrolled in the militia by law if you're a male 17-45 and not already in the armed forces according to USC 10.311:

http://www.law.cornell.edu/uscode/10/311.html

§ 311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Therefore, the 2nd Amendment protects the right for free citizens (felons excluded as they are not free even after being released from jail) to own individual weapons suitable for militia service. This means all weapons identical or similar to the current Army issue to the individual soldier:

M16 rifle
M249 machinegun
M240 machinegun
M60 machinegun
M203 grenade launcher
LAW antitank weapon
AT4 recoilless rifle
M9 pistol
M40 sniper rifle
M1014 sem-auto shotgun

The government may provide at its discretion the following weapons and enact strict licensing and control of them, because they are not weapons issued to individual soldiers:

M2 heavy machinegun
M119A1 105mm howitzer
M110 personnel carrier with 20mm cannon
M1A1 main battle tank with smoothbore 120mm main gun
W88 475kT nuclear warhead
FIM-92A anti-aircraft missile (though it can be operated by one man, it is issued to a 2 person team. Hence, not a militia weapon.)

Additionally, the ownership of the following civilian arms is not explicitly protected (but not forbidden), as they are not similar to issue weapons:
AR-15 semiauto rifle
SSR-85C semiautomatic AK-47 copy
Most hunting rifles
All revolvers
Most shotguns

[fascisthunter]

1. "Militia Arms"

but thanks for the interpretation.

[jody]

2. OP is interesting however SCOTUS may answer all questions re the 2nd in D.C. v. Heller. n/t

[johnbraun]

3. God I hope so.

Then some of these troublesome and hurtful to the Dem party questions will go away. As, hopefully, will their proponents. I can't wait to WIN a Dem presidency again where the winner didn't say squat about gun bans!

[GodlessBiker]

4. Where do you come up with these things?

Why do you think that The Militia Act of 1792 - an act of Congress - takes precedence over a Constitutional provision?

I don't agree that you can validly support your interpretation of the Constitution by pointing to a law passed by Congress. Congress makes mistakes and sometimes passes unconstitutional laws.

[johnbraun]

8. It doesn't take precedence over it, it is a law passed within the bounds already set.

The 2nd limits the government from regulating militia arms. The Militia Act specifically says what arms they are talking about - individual modern weapons. Not ordnance.

[GodlessBiker]

11. Says you. And yet, you seek to move beyond the arms that they talk about.

Muskets for everyone (at least white males between 18-45)!

The rest of you, well, you get bupkis.

[johnbraun]

12. The point is that nukes are *not* protected. What weapons *are* protected is incidental.

[unpossibles]

15. I only see the phrase "modern individual weapons" in your posts.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act(1). And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock(2), a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

(1) I have not been properly enrolled.

(2) that definitely says "musket or firelock"

I am not anti-gun ownership at all, I just think your argument is lacking.

[johnbraun]

16. You are enrolled automatically if you are a non-army male between 17-45.

And a "good musket" today is an M16.

(note that the Act also says that militia arms shall be free from taxes too.)

:)

Again, the point is that the 2nd only protects individual arms that can be used as militia weapons, not ordnance like nuclear weapons.

[unpossibles]

28. no, if we're going to read it as law, then we must read it as written

it says that men between 17-45 "shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside." That sounds to me like someone will do the actual enrolling, but I won't argue that point.

It does say musket or firelock, not "whatever gun happens to be used at the time" if I am not mistaken. I am unfamiliar with the definition of "musket" which includes non-smoothbore rifles or machine guns. Do you have a link for that definition?

[johnbraun]

29. Right. And we updated that by splitting into the organized and unorganized militia

the latter of which you are automatically enrolled in.

Look, the main point is that the strawman argument (however fallacious) that the 2nd protects nuclear weapons is not valid - because the "militia" context means that only small arms are referred to in English common law, the Militia Act, etc. The militia act doesn't say that people shall bring cannons or other ordnance. It says muskets - individual arms not ordnance.

[unpossibles]

30. ok, that part I agree with completely

I own weapons, and am not trying to be a jerk. I just wasn't totally in agreement about what the law says and why, and in some ways was being a smart-ass or a devil's advocate. I'm also not a hardliner though, in the sense that I think better education, safety measures, and licensing is not inherently a bad thing. Sure, it could be abused, but overall I'd like to see guns viewed more rationally by everyone on both sides.

[GodlessBiker]

19. Perhaps nukes are not protected only because they didn't exist in 1792.

[johnbraun]

20. Then the Internet isn't protected either for the same reason.

Not the best argument there.

[GodlessBiker]

23. So, then, we can possess both the Internet and nukes. We should treat them equally.

[johnbraun]

26. Straw man.

[ManiacJoe]

31. Not even close.

Nukes are not protected arms because (1) they are not weapons used by an individual, and (2) their mere existance outside a proper storage facility is a safety hazard to the general public.

[beevul]

21. Says the framers as well.

It would appear that your reply was to this:

"The 2nd limits the government from regulating militia arms."

The framers made it quite clear what the bill of rights - including the second amendment - is, as well as its purpose, and function.


"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"

www.billofrights.org


I have yet to see anyone attempt to refute that beyond simple claims. Have you anything beyond that to offer?


The poster you replied to was incorrect in stating that its militia arms that are forbidden from being regulated. It is the RIGHT of the people to keep and bear arms, that shall not be infringed.

The rest?

I'll see your "Muskets for everyone" and raise you one "hand cranked printing presses for all".

[EricTeri]

5. Try again N/T

[damntexdem]

6. So you're speaking of the 'well-regulated' militia?

If so, good -- let's regulate those weapons well.

[johnbraun]

7. You're already in a well-regulated militia - eg. a militia formed under law.

The 2nd says nothing about regulating weapons. It says regulating the militia. As the militia and your participation in it is codified under law, you are in a "well-regulated" militia.

[Elmer1007]

9. Well Regulated. ??

In the terms and usage of the times, may very well have ment
Well equiped and trained not controlled.

[johnbraun]

10. But the antis say "regulated" in the legal sense. So let's use their definition.

Because my participation in the militia is well-regulated ie. "codified in law", I am in a well-regulated militia and my right to own militia arms shall not be infringed.

[ayeshahaqqiqa]

13. Yep

The folks I really admire are the ones who still use the old flintlocks, either for target practice or hunting. Takes a lot of skill, imho, to use one effectively.

[johnbraun]

14. Well, flintlocks aren't protected anymore, because they're not modern individual weapons.

[laconicsax]

17. Sorry, but the Militia Act of 1792 is no loger valid.

The Militia Act of 1903, formed the National Guard from the militia and the National Defense Act of 1916 converted the militia into the Army Reserve.

[johnbraun]

18. Both these Acts had nothing to do with the unorganized militia.

And can you tell me what the Dick Act did to the unorganized militia?

What about the National Defense Act? What did it do to the unorganized militia?

We're not talking about the organized militia, we're talking about the unorganized militia.

And neither of these Acts either said that nuclear weapons are protected under the 2nd. Even now, nuclear weapons are in control of the formal armed forces and not the National Guard or Army reserve.

Again. The point is that the Militia Act said that "militia weapons" means individual small arms, not ordnance. No subsequent act redefined this.

[laconicsax]

27. Which isn't even a part of the original Militia Act!

Nowhere in the entire Militia Act of 1792 is there any mention of an organized and unorganized militia. There is a reference to a singular "militia." In fact, the only mention of any unorganized militia anywhere in US law is in the part of Title 10 that you posted.

Seems to me that if anything, the "unorganized militia" is the Reserves.

Check out Subtitle E, Chapter 1003, subsections 10102 and 10103. They certainly show that the reserves fit the bill of what the "unorganized militia" is for and is supposed to do--help fill the ranks in times of emergency.

How about you define the "unorganized militia" with active statues. 216 year old acts that are no longer in effect don't count anymore. I want to see active statutes that define the "unorganized militia" in term of purpose, jurisdiction, etc.

[jmg257]

24. It is clear from the Act of 1792 what the INTENT was. THAT is usually the subject when discussing

a reading of the Constitution.

The National Guard Acts were a usurption - no power was granted to the congress to create a new "militia", or to redefine or recreate what THE Militias of the several States were - or to limit the people's duty/role to serve in it. But since the new definition does provide for an unorganized militia, the people's role in the Militia of the UNITED States - this new entity - is still mandated.

Even though the feds usurped further power with the Warner Act and currently made the calling forth of the unorganized militia in federal service a non-issue, our role in said Militia, and our right to arms long secured for duty in that militia, are still protected.

[jmg257]

22. But it was the intent that the people ALWAYS be able to out-gun the army, so now what??

Also, the 2nd puts NO limit on firearms the people have a right to own. The militia observation does specifically secure the right to those military arms in common use from ALL infringement (there is NO compelling interest worth weakening the militia - effective militias are too important to the constitution and our freedoms - they are necessary in fact). Further - the 2nd does not limit the right to private property individuals are able to keep and bear for their own uses.

Access and use of that property (the means to the right involved) can only be suspended via due process. (i.e. felons)

Any attempts at further restriction must meet strict scrutiny

[johnbraun]

25. The main point is that antis can't possibly use the argument that the 2nd protects nukes.

That's all. The rest is just a bonus.