What Do The Words "A Well Regulated Militia" Mean?

[M14 Shooter]

Heller was decided 5 to 4; it is no more decided law than was Dred Scott

I'm sorry -- is this an admission that Heller is indeed the law of the land?

If the carnage continues, and the NRA and its followers continue on the path of zero tolerance for gun control, we might very well see a new SC decide a gun control law using common sense.

No wonder you get all giddy when you hear about a school shooting.

 

[skookerasbil]

Fringe sentiments on the Second Amendment are ghey >>>

Support for gun ownership at the highest level since.......ready for this..........1959!!!



Gallup Poll: Support for gun control is waning, opposition to handgun ban at all-time high

 

[Wry Catcher]

Heller was decided 5 to 4; it is no more decided law than was Dred Scott.

That's true. Justice Scalia pointed out in the decision, that this decision would not address the issue of "reasonable restrictions" now, and so those could stand for the present.

But he plainly intended to leave room for "reasonable restrictions" to be re-examined and (finally) adjudicated in a future case.

I'm sure he did that because he is starkly aware that the 2nd amendment leaves NO room for "reasonable restrictions", no matter how much various leftists and big-govt pushers wished it did.

I have no idea what Scalia believed. I'm not an authority on the NRA, but in my experience the NRA and its followers have yet to proffer any form of gun control. They and its followers on this forum argue that any form of gun control will ultimately lead to confiscaton [a logical fallacy known as the Slippery Slope].

Time will tell if this SC or a future SC will find the tipping point, what is a reasonable restriction and what is an enfringment. The gun lovers above find any effort to achieve some gun controls as the first step in taking away all the guns.

 

[M14 Shooter]

Heller was decided 5 to 4; it is no more decided law than was Dred Scott.

That's true. Justice Scalia pointed out in the decision, that this decision would not address the issue of "reasonable restrictions" now, and so those could stand for the present.

But he plainly intended to leave room for "reasonable restrictions" to be re-examined and (finally) adjudicated in a future case.

I'm sure he did that because he is starkly aware that the 2nd amendment leaves NO room for "reasonable restrictions", no matter how much various leftists and big-govt pushers wished it did.

I have no idea what Scalia believed. I'm not an authority on the NRA, but in my experience the NRA and its followers have yet to proffer any form of gun control.

That's because you wallow in ignorance. and enjoy the smell.
Ask yourself: Why do we have instant background checks at the federal level?

They and its followers on this forum argue that any form of gun control will ultimately lead to confiscaton [a logical fallacy known as the Slippery Slope].

This is, of course, an outright lie.

 

[Kondor3]

Benefiting the Gun-Rights folk... the Constitution guarantees the Right to Bear Arms.

Benefiting the Gun-Grabber folk... the Constitution is silent regarding the details.

So far, this has been left largely to the control of the individual States.

In some States, that's working out just fine.

In some States, they couldn't handle this properly if they tried.

And, the citizens of the United States are faced with 50 or more diverse and inconsistent sets of rules, guidelines, vetting, licensing, etc.

But sufficient precedent exists, to allow the Feds to step-in with an overarching policy.

Let's just make sure we have a Conservative government in-place when the Feds try to define such a policy.

It's becoming increasingly clear that something must be done on the national level.

But Liberals cannot be trusted with so important a task.

Better that it be done while the Conservative folks are running things, in order to find a better balance, and to get the buy-in of a larger percentage of the American gun-owning public.

Even though it might cost them at the ballot box, first election after any such effort.

 

[Skull Pilot]

And why do RWers and other Republicans like to ignore it?

It doesn't mean government controlled.

It has been pointed out many times here that the 18th century usage of well regulated meant well equipped, organized or disciplined.

Meaning of the phrase "well-regulated"

The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it

 

[Wry Catcher]

Benefiting the Gun-Rights folk... the Constitution guarantees the Right to Bear Arms.

Benefiting the Gun-Grabber folk... the Constitution is silent regarding the details.

So far, this has been left largely to the control of the individual States.

But sufficient precedent exists, to allow the Feds to step-in with an overarching policy.

Let's just make sure we have a Conservative government in-place when the Feds try to define such a policy.

It's becoming increasingly clear that something must be done on the national level.

But Liberals cannot be trusted with so important a task.

Better that it be done while the hands-off folks are running things, in order to find a better balance, and to get the buy-in of a larger percentage of the American gun-owning public.

Why would conservatives allow the Federal Government to decide the issue? Wouldn't a conservative support the right of each state to determine its policy on guns? And if a state were able to decide on such an important issue wouldn't each county, parish, city or town have the right to restrict or require gun ownership?

BTW, aren't gun free zones an enfringment on one's right to keep and bear arms? We know how might Scalia decided that issue? Would other future justices agree?

 

[Skull Pilot]

Benefiting the Gun-Rights folk... the Constitution guarantees the Right to Bear Arms.

Benefiting the Gun-Grabber folk... the Constitution is silent regarding the details.

So far, this has been left largely to the control of the individual States.

But sufficient precedent exists, to allow the Feds to step-in with an overarching policy.

Let's just make sure we have a Conservative government in-place when the Feds try to define such a policy.

It's becoming increasingly clear that something must be done on the national level.

But Liberals cannot be trusted with so important a task.

Better that it be done while the hands-off folks are running things, in order to find a better balance, and to get the buy-in of a larger percentage of the American gun-owning public.

Why would conservatives allow the Federal Government to decide the issue? Wouldn't a conservative support the right of each state to determine its policy on guns? And if a state were able to decide on such an important issue wouldn't each county, parish, city or town have the right to restrict or require gun ownership?

BTW, aren't gun free zones an enfringment on one's right to keep and bear arms? How might Scalia decide that issue?

The Constitution supersedes states laws insofar as what is enumerated in the Constitution.

Tell me would you want states to individually determine their own free speech laws or civil rights laws as well?

 

[Kondor3]

Benefiting the Gun-Rights folk... the Constitution guarantees the Right to Bear Arms.

Benefiting the Gun-Grabber folk... the Constitution is silent regarding the details.

So far, this has been left largely to the control of the individual States.

But sufficient precedent exists, to allow the Feds to step-in with an overarching policy.

Let's just make sure we have a Conservative government in-place when the Feds try to define such a policy.

It's becoming increasingly clear that something must be done on the national level.

But Liberals cannot be trusted with so important a task.

Better that it be done while the hands-off folks are running things, in order to find a better balance, and to get the buy-in of a larger percentage of the American gun-owning public.

Why would conservatives allow the Federal Government to decide the issue? Wouldn't a conservative support the right of each state to determine its policy on guns? And if a state were able to decide on such an important issue wouldn't each county, parish, city or town have the right to restrict or require gun ownership?

BTW, aren't gun free zones an enfringment on one's right to keep and bear arms? How might Scalia decide that issue?

The idea of Conservatives leading the charge to gun-control makes sense, actually; serving-up a modicum of fresh overarching policy, so as to silence the Opposition for a generation or two.

Then again - just like the Liberals - I seriously doubt that Conservatives had the intelligence and willpower to get out ahead of the issue, do something substantial, while leaving Rights intact, and to put the issue to bed for a few decades.

 

[Wry Catcher]

Benefiting the Gun-Rights folk... the Constitution guarantees the Right to Bear Arms.

Benefiting the Gun-Grabber folk... the Constitution is silent regarding the details.

So far, this has been left largely to the control of the individual States.

But sufficient precedent exists, to allow the Feds to step-in with an overarching policy.

Let's just make sure we have a Conservative government in-place when the Feds try to define such a policy.

It's becoming increasingly clear that something must be done on the national level.

But Liberals cannot be trusted with so important a task.

Better that it be done while the hands-off folks are running things, in order to find a better balance, and to get the buy-in of a larger percentage of the American gun-owning public.

Why would conservatives allow the Federal Government to decide the issue? Wouldn't a conservative support the right of each state to determine its policy on guns? And if a state were able to decide on such an important issue wouldn't each county, parish, city or town have the right to restrict or require gun ownership?

BTW, aren't gun free zones an enfringment on one's right to keep and bear arms?

The Constitution supersedes states laws insofar as what is enumerated in the Constitution.

Tell me would you want states to individually determine their own free speech laws or civil rights laws as well?

Of course not, but States Rights isn't a huge issue for me, it is for many in the Red States. Art. VI, sec. 2 is clear yet many from the Red States seem to want to make law on some issues - abortion, voting rights, regulations - to suit themselves.

 

[Wry Catcher]

bump

 

[Wry Catcher]

What do the words a well regulated militia mean? it means if you try to take away America's guns you're going to get a whole lot of spirit of 76 shoved up your ass.

You know that I know you're stupid; thus my answering your question is futile. Get a copy of the COTUS and read Article I, Sec. 8 and the 14th and 15 clause.

What I don't know is this: Has the Congress Organized, Armed and Disciplined the Militia?

 

[Little-Acorn]

Why would conservatives allow the Federal Government to decide the issue?

They don't.

Wouldn't a conservative support the right of each state to determine its policy on guns?

They did. By proposing a Constitutional Amendment (the 2nd) and sending it to each state for ratification. Each state made its own decision, which was to ban ANY government in the country from infringing the right of the people to keep and bear arms.

Hope that helps you understand.

BTW, aren't gun free zones an enfringment(sic) on one's right to keep and bear arms?

Mmm hmm.

 

[Unkotare]

My education far exceed [sic] yours.

 

[RetiredGySgt]

My education far exceed [sic] yours.

He is so educated he did not read nor understand the linked section to an explanation of what the 2nd says by a professor of the English language.

 

[Peach]

My education far exceed [sic] yours.

He is so educated he did not read nor understand the linked section to an explanation of what the 2nd says by a professor of the English language.

Those "activist" justices settled this long ago, the 2nd Amendment applies to individuals also(.)

 

[MarcATL]

And why do RWers and other Republicans like to ignore it?

[MENTION=20450]MarcATL[/MENTION] It's a prefatory clause. Not a part of the active part of the sentence.

a. Says who?

2. To what end?

III. What other parts of the Constitution can we find prefatory clauses?

[MENTION=43831]RKMBrown[/MENTION]

 

[Skull Pilot]

And why do RWers and other Republicans like to ignore it?

[MENTION=20450]MarcATL[/MENTION] It's a prefatory clause. Not a part of the active part of the sentence.

a. Says who?

2. To what end?

III. What other parts of the Constitution can we find prefatory clauses?

[MENTION=43831]RKMBrown[/MENTION]

J. Neil Schulman: The Unabridged Second Amendment

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a a distinguished 17-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publisher's Humanities Award.

[Copperud:] "The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

"In reply to your numbered questions:

[Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

[Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

[Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

[Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

 

[M14 Shooter]

And why do RWers and other Republicans like to ignore it?

[MENTION=20450]MarcATL[/MENTION] It's a prefatory clause. Not a part of the active part of the sentence.

a. Says who?

A group of people who are, collectively, the final authority on matters such as these.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .”

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”).

Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment , we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise … Armies”; “to provide … a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the 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.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).

b. “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story §208; see also 3 id., §1890 (in reference to the Second Amendment ’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—“each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution.

There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

3. Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) , petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment ’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.

DISTRICT OF COLUMBIA v. HELLER
DISTRICT OF COLUMBIA v. HELLER

You may not like it, but it you disagree, it means you choose to be wrong.

 

[Wry Catcher]

Is not the Preamble to the COTUS prefatory? Thus,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Reading the text as a vision statement one must conclude that the proliferation of guns do little to promote a more perfect union, establish justice or ensure domestic Tranquility. A Militia however, organized, armed and disciplined and whose officers are appointed by the several governments to will train a Militia would likely provide for the common defense and the general welfare of our citizens.