Abatis
Platinum Member
So, here it is. It's long but it is a comprehensive answer . . .
The first half (declaratory clause) of the 2nd Amendment is an inactive, dependent statement of principle, a maxim of our republic.
Now, "inactive" does not mean meaningless . . . I say "inactive" because the declaratory clause has never had any legal action; it has never been examined or held to inform on any aspect of militia powers or organization or control. It commands nothing, it demands nothing it creates no new structure of organization or control nor does it expand any powers beyond what is enumerated in Article 1, Section 8, clauses 15 & 16 of the Constitution (which SCOTUS has said is the full explanation of Congressional militia powers).
The wording of all the Amendments were carefully considered and represents and conforms with the varying proposals from the states which mirrored the provisions in their own constitutions. In their constitutions the states lumped themes with similar objects together in their bills of rights. Most of the states had a provision that had the intent of binding / restricting government powers of force. These provisions had three prongs:
Here are some examples of state provisions that were in force during the enactment of the federal Constitution and the Bill of Rights:
The separate prongs of these provisions were never considered interdependent (that all must exist for any to be actionable, i.e., that if a standing army does exist, the right to arms of the people doesn't).
Actually, it is clear that the standing army declarative clauses can never actually bind action; that they are merely inactive statements of principle.
Those clauses can't possibly refer to state powers to create a standing army because the states are forbidden to keep troops by the federal Constitution and certainly those clauses can not be interpreted to prevent the federal government from exercising its supreme Art I, § 8, cl's 11, 12, 13 & 14 powers.
Considering that the wording of the 2nd Amendment was drawn from similar provisions and the framers were well accustomed to such constructions, one can't really say that the 2nd Amendment is unique or clumsy, ambiguous or confusing without announcing their ignorance and lack of understanding.
The declaration in the federal 2nd Amendment, "[a] well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment.
The declaratory clause of the 2nd Amendment only re-affirms what once was a universally understood and accepted maxim; that an armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).
So, without a doubt the inactive, dependent declaratory clause of the 2nd Amendment can only be said to be a statement of why the 2nd AMENDMENT exists, and as such it does not, CAN NOT qualify, condition, modify or constrain the pre-existing right; it only states one reason (the political one) for why the fully retained right is being forever shielded from government interference.
The belief / position that the declaratory clause conditions / qualifies / modifies / restricts the right to arms has no support in the philosophical, historical or legal foundation or action of the Constitution. It is an early 20th Century theory that was created for one purpose, to support an anti-individual right political agenda and to extinguish claims of rights injury by citizens in the courts .
.
The first half (declaratory clause) of the 2nd Amendment is an inactive, dependent statement of principle, a maxim of our republic.
Now, "inactive" does not mean meaningless . . . I say "inactive" because the declaratory clause has never had any legal action; it has never been examined or held to inform on any aspect of militia powers or organization or control. It commands nothing, it demands nothing it creates no new structure of organization or control nor does it expand any powers beyond what is enumerated in Article 1, Section 8, clauses 15 & 16 of the Constitution (which SCOTUS has said is the full explanation of Congressional militia powers).
The wording of all the Amendments were carefully considered and represents and conforms with the varying proposals from the states which mirrored the provisions in their own constitutions. In their constitutions the states lumped themes with similar objects together in their bills of rights. Most of the states had a provision that had the intent of binding / restricting government powers of force. These provisions had three prongs:
a) The citizens retained the right to arms
b) standing armies in time of peace were dangerous to a free state and not to be maintained
c) the military should always be subordinate to the civil authority.
b) standing armies in time of peace were dangerous to a free state and not to be maintained
c) the military should always be subordinate to the civil authority.
Here are some examples of state provisions that were in force during the enactment of the federal Constitution and the Bill of Rights:
North Carolina: That the people have a right to bear arms, for the defence of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. . . .
Vermont: That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.
Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.
Vermont: That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.
Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.
The separate prongs of these provisions were never considered interdependent (that all must exist for any to be actionable, i.e., that if a standing army does exist, the right to arms of the people doesn't).
Actually, it is clear that the standing army declarative clauses can never actually bind action; that they are merely inactive statements of principle.
Those clauses can't possibly refer to state powers to create a standing army because the states are forbidden to keep troops by the federal Constitution and certainly those clauses can not be interpreted to prevent the federal government from exercising its supreme Art I, § 8, cl's 11, 12, 13 & 14 powers.
Considering that the wording of the 2nd Amendment was drawn from similar provisions and the framers were well accustomed to such constructions, one can't really say that the 2nd Amendment is unique or clumsy, ambiguous or confusing without announcing their ignorance and lack of understanding.
The declaration in the federal 2nd Amendment, "[a] well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment.
The declaratory clause of the 2nd Amendment only re-affirms what once was a universally understood and accepted maxim; that an armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).
So, without a doubt the inactive, dependent declaratory clause of the 2nd Amendment can only be said to be a statement of why the 2nd AMENDMENT exists, and as such it does not, CAN NOT qualify, condition, modify or constrain the pre-existing right; it only states one reason (the political one) for why the fully retained right is being forever shielded from government interference.
The belief / position that the declaratory clause conditions / qualifies / modifies / restricts the right to arms has no support in the philosophical, historical or legal foundation or action of the Constitution. It is an early 20th Century theory that was created for one purpose, to support an anti-individual right political agenda and to extinguish claims of rights injury by citizens in the courts .
.
Last edited: