2nd Amendment, Scalia and what the Founders meant: Commas, Common Sense and Justice. The question is how to interpret the comma after 'free state.'

[M14 Shooter]

It doesn't.
"The people" as in, all individuals, have the right to be in the militia.

The fact that a state can exclude anyone it wants from the militia proves otherwise.

 

[frigidweirdo]

No.

No.

Yes, and yes.

Anything that was available to the individual at the time of the founding of this nation is fair game to me. So cannons are ok.

Did militiamen have cannons?

The answer is no.

A militiaman's weaponry was a musket. Not a cannon.

 

[frigidweirdo]

The right of the people.
Not the militia.
Not the people in the militia.
The people.
As no one has a right to have any given association with the militia, the exercise of the right to keep and bear arms, as protected by the 2nd, must exist independent of a person's relationship with the militia.

Thus, you lied.
See how easy that was?

Did you read what I wrote? Clearly not, as you're telling me I said things when I said the opposite.

Try reading.

 

[frigidweirdo]

The fact that a state can exclude anyone it wants from the militia proves otherwise.

No, it doesn't.

Try reading about the part about the Dick Act of 1903.

They made the "organized militia" and the "unorganized militia" so they could have a professional militia in which individuals could not demand to be in, because the "unorganized militia" is where you go if you want to exercise your right to bear arms. And it's very unorganized.

 

[M14 Shooter]

Yes, but that is part of my point. The more a constitutional provision relies on centuries of litigation to determine its practical meaning, the stronger the argument that the text itself may be underspecified for modern circumstances.

Agreed. But that merely restates my concern. The scope is being defined primarily by judges rather than by constitutional text.

In this the 2nd is no different than the 1st 4th 5th and to some extent, Amendments 6-10.
Working as intended.

 

[M14 Shooter]

So, they can't prevent you from owning a gun. So, if they said "you can buy this and that and the other gun but you can't buy that gun over there", have they restricted you from owning a gun? No, they haven't.

Idiocy - this is no different than arguing a ban on Islam does not violate the 1st Amendment because you can still be a Jew or Christian.

USSC:
...the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
"All bearable arms" = banning any "bearable arm" violates the constitution, regardless of what "bearable arms" are still available.

 

[frigidweirdo]

Idiocy - this is no different than arguing a ban on Islam does not violate the 1st Amendment because you can still be a Jew or Christian.

USSC:
...the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
"All bearable arms" = banning any "bearable arm" violates the constitution, regardless of what "bearable arms" are still available.

Well, not really. I'd suggest that it'd be the same as a ban on native religions, and banning the Sundance.

Why was the Sun Dance banned? - The Institute for Environmental Research and Education

Why Was the Sun Dance Banned? A History of Suppression and Resilience The Sun Dance, a sacred and central ceremony […]

iere.org

"The Sun Dance, a sacred and central ceremony for many Plains Indigenous nations, was banned due to a complex interplay of governmental policies aimed at forced assimilation, misunderstandings of its spiritual significance, and prejudiced perspectives that deemed it “barbaric.” This article explores the history of that ban and the ongoing efforts to revitalize this vital tradition."

Which happened in the US.

The simple fact is that things are banned in the US. Imagine you made a gun that was inherently unsafe. One person shot the gun and ten people died. Then the government can ban that gun.

So, where's the line? The reality is the 2A says the government cannot stop you from owning "arms". But they stop you owning nukes, tanks, SAMs etc ALL THE TIME and the NRA does what about it? Sweet fukc all is what. Why?

No, the ownership of arms is the right to keep arms. It's not about bearing arms. Bearing arms is the right to be in the militia. Go read a previous post of mine that looks rather long to see the truth on that.

 

[M14 Shooter]

Did you read what I wrote?

I did. I then proved you wrong.
Try being honest.

 

[M14 Shooter]

Well, not really.

Yes, really - and you cannot demonstrate otherwise.

No, the ownership of arms is the right to keep arms. It's not about bearing arms. Bearing arms is the right to be in the militia.

You're lying.

 

[jotathought]

The subject of the sentence?

"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."

That's the subject in orange.

The verb is "shall not be infringed".

In modern language is would be read without the comma. It's weird.

It's like writing:

"John, swims"

The first part of the amendment:

"A well regulated Militia, being necessary to the security of a free State,"

Doesn't have have a subject-verb-object.

"being" is a verb without a time. There's no past, no future, no present, no always, no conditional either.

In the modern era we'd probably have used the present tense and written:

"A well regulated militia is necessary for the security of the a free state".

Which would then have "A well regulated militia" as the subject, "is" as the verb and "necessary" another verb.

But the thing is, that all the Constitutional rights written in the Constitution, are powers taken away from the government. The government can't do this, the government can't do that.

The right to bear arms prevents the govt from stopping people from being in the militia.
The right to keep arms prevents the govt from stopping people from owning militia type weaponry.

The first part of the sentence, aside from being written archaically, doesn't take any power away from the government. Therefore it's not a right, therefore it doesn't mean anything.

Had they written only the latter part, it would have meant the same thing. They probably put it there to give the sentence context, to make sure that people knew they were protecting the militia, as stated in article 1 section 8, by preventing the US govt from taking away the right of INDIVIDUALS to be in the militia, and by preventing the US govt from taking away people's guns when they joined or left the militia (both in terms of being federalized and in terms of just "well, you're not in the militia so you don't get the right"), or if they weren't in the militia.

You’re arguing about grammar and trying to translate it .

 

[Stryder50]

From a constitutional and jurisprudence standpoint, no rights are absolute.

Weasel words. Try writing intelligently, you'll feel better in the long run.

So in your mind the Declaration of Independence, what it states and stands for is fantasy ?
Our Constitution isn't the ideals of the DoI embodied as government and Law ?
I mentioned that governments can ignore/abolish human rights.
Try becoming intelligent and learn to read beyond 8th grade level.

 

[westwall]

Did militiamen have cannons?

The answer is no.

A militiaman's weaponry was a musket. Not a cannon.

Yes, they did. As I detailed above. The very first artillery unit in the USA was the PRIVATE organization The Ancient and Honerable Artillery Company of Boston.

Add to that the Letters of Marque that were handed out to revolutionary, War of 1812, and Civil War seamen, who sailed PRIVATELY owned vessels armed with CANNON, and you are clearly ignorant of history.

Try again.

 

[Rumpole]

Yep, not a single right is absolute, especially in the US with the death penalty where you're literally taking away all rights from a human being when they are killed.

I am against capital punishment.

 

[Rumpole]

Thus the SC ruled that the only weapons that are protected are those that are useful for MILITARY purposes.

So handguns, machineguns, sniper rifles etc. are all protected by the 2nd and not to be interfered with by the government.

Your welcome.

You’ve actually just proven my original point: the Second Amendment is a complete textual and historical anachronism.

Your argument tries to straddle a 1789 military framework and a 2026 technological reality, and the gears are grinding. When the amendment was written, a civilian firearm and a military firearm were exactly the same thing: a single-shot flintlock musket. Because the Founders relied on citizens to form temporary state militias rather than keeping a massive standing army, the "militia context" made sense.

But that world is dead. We now have a massive professional military, and the gap between civilian self-defense weapons and military-grade hardware is a canyon.

Because the amendment contains absolutely no mention of scope or limits, it leaves us in a ridiculous logical loop. If we accept your reading of Miller--that the Constitution protects any weapon with "military usefulness"--then private citizens have a constitutional right to fully automatic M4s, sniper systems, and shoulder-fired missiles.

No court accepts that because it’s insane. Instead, modern courts have to ignore the "militia" text entirely and invent brand-new legal tests (like Heller's "common use" standard) just to keep the amendment functioning in a world the Founders never envisioned.

You are trying to force a 230-year-old law designed for citizen-soldiers with muskets to act as a blank check for modern weaponry, ignoring that its core premise (the militia) and its scope are entirely obsolete. And this is why I advocate a revision of the anachronistic second amendment.

 

[Rumpole]

In this the 2nd is no different than the 1st 4th 5th and to some extent, Amendments 6-10.
Working as intended.

No, repurposed under Heller. If any ruling proves second amendment is an anachronism, it is Heller.

You are equating smooth constitutional adaptation with radical textual surgery. The 1st, 4th, and 5th Amendments have evolved via extrapolation; Heller proved the 2nd Amendment could only survive via re-purposing.

When the courts apply the 1st Amendment to the internet, or the 4th Amendment to cell phone data and thermal imaging, the underlying principle doesn't change. "Speech" remains speech, and "papers and effects" remain personal data. The text doesn't break down; it just scales up.

Heller did the exact opposite. It didn't scale the text up--it had to legally lobotomize it.

To manufacture an individual right completely decoupled from militia service in 2008, the majority had to spend dozens of pages explaining why the first 13 words of the amendment ("A well regulated Militia...") were essentially a decorative preamble with no operative power. Why? Because if the Court had actually enforced the text as written, the amendment would be a glaring, unusable anachronism in a world with a professional standing army and National Guard.

If a right requires the Supreme Court to perform semantic gymnastics to read half of its words out of the equation just to keep it functioning in the 21st century, it isn't "working as intended." It's an anachronism that had to be artificially re-engineered to survive.

 

[westwall]

You’ve actually just proven my original point: the Second Amendment is a complete textual and historical anachronism.

Your argument tries to straddle a 1789 military framework and a 2026 technological reality, and the gears are grinding. When the amendment was written, a civilian firearm and a military firearm were exactly the same thing: a single-shot flintlock musket. Because the Founders relied on citizens to form temporary state militias rather than keeping a massive standing army, the "militia context" made sense.

But that world is dead. We now have a massive professional military, and the gap between civilian self-defense weapons and military-grade hardware is a canyon.

Because the amendment contains absolutely no mention of scope or limits, it leaves us in a ridiculous logical loop. If we accept your reading of Miller--that the Constitution protects any weapon with "military usefulness"--then private citizens have a constitutional right to fully automatic M4s, sniper systems, and shoulder-fired missiles.

No court accepts that because it’s insane. Instead, modern courts have to ignore the "militia" text entirely and invent brand-new legal tests (like Heller's "common use" standard) just to keep the amendment functioning in a world the Founders never envisioned.

You are trying to force a 230-year-old law designed for citizen-soldiers with muskets to act as a blank check for modern weaponry, ignoring that its core premise (the militia) and its scope are entirely obsolete. And this is why I advocate a revision of the anachronistic second amendment.

As usual, you're wrong. The 2nd Amendment is a safeguard against a corrupt government.

As a good friend of mine described the Bill of Rights, they are "nine limitations on government power, and one final option".

Because we all know that governments all go corrupt, and when they do they turn evil. Thus you harp about our frime stats, but European governments have murdered more people in 150 years, than all other murders combined over 2000 years.

And it isn't close.

Our 2nd Amendment exists to ensure that we American citizens don't suffer the same sort of fate as you subjects.

 

[Rumpole]

So in your mind the Declaration of Independence, what it states and stands for is fantasy ?
Our Constitution isn't the ideals of the DoI embodied as government and Law ?
I mentioned that governments can ignore/abolish human rights.
Try becoming intelligent and learn to read beyond 8th grade level.

You are fundamentally confusing a philosophical manifesto with binding statutory law.

The Declaration of Independence, the letter to King George III, is a brilliant rhetorical justification for revolution, but it carries zero legal authority. It cannot be cited in a court of law, it grants no actionable legal rights, and it governs nothing. The Supreme Court has made this explicitly clear for over two centuries.

The Constitution is the actual supreme law of the land, and it does not treat rights as magical, boundary-free absolutes. If rights were absolute, the Supreme Court wouldn't spend its entire existence balancing them against compelling public interests. Under our constitutional framework, your right to free speech doesn't protect perjury, your right to free exercise doesn't excuse human sacrifice, and your property rights don't exempt you from eminent domain.

Even if we look at the natural rights philosophy you are attempting to invoke, John Locke and Thomas Jefferson both understood the concept of the social contract: you surrender absolute, unchecked individual liberty in exchange for ordered, protected liberty under a government of laws.

If you want to discuss legal jurisprudence, stick to the document that actually commands the force of law, that is, if your above the 8th grade level brain can grasp it.

 

[M14 Shooter]

No, repurposed under Heller.

This is a lie, as demonstrated in post #183, which you avoided.
For the Heller court to have "repurposed" the right to keep and bear arms to an individual right held without reference to the militia, the court would have to have previously held the opposite.
Not once has it done so.
Heller overturned exactly NO rulings from the USSC; the USSC has only ever held the 2nd protects am individual right unconnected to the militia.

You are equating smooth constitutional adaptation with radical textual surgery. The 1st, 4th, and 5th Amendments have evolved via extrapolation; Heller proved the 2nd Amendment could only survive via re-purposing.

q.v. above.

Heller did the exact opposite. It didn't scale the text up--it had to legally lobotomize it.

q.v. above.

To manufacture an individual right completely decoupled from militia service in 2008, the majority had to spend dozens of pages explaining why the first 13 words of the amendment ("A well regulated Militia...") were essentially a decorative preamble with no operative power. Why? Because if the Court had actually enforced the text as written, the amendment would be a glaring, unusable anachronism in a world with a professional standing army and National Guard.

This is a lie, as demonstrated in post #8

If a right requires the Supreme Court to perform semantic gymnastics to read half of its words out of the equation just to keep it functioning in the 21st century, it isn't "working as intended." It's an anachronism that had to be artificially re-engineered to survive.

Good thing that does not apply here.

 

[westwall]

You are fundamentally confusing a philosophical manifesto with binding statutory law.

The Declaration of Independence, the letter to King George III, is a brilliant rhetorical justification for revolution, but it carries zero legal authority. It cannot be cited in a court of law, it grants no actionable legal rights, and it governs nothing. The Supreme Court has made this explicitly clear for over two centuries.

The Constitution is the actual supreme law of the land, and it does not treat rights as magical, boundary-free absolutes. If rights were absolute, the Supreme Court wouldn't spend its entire existence balancing them against compelling public interests. Under our constitutional framework, your right to free speech doesn't protect perjury, your right to free exercise doesn't excuse human sacrifice, and your property rights don't exempt you from eminent domain.

Even if we look at the natural rights philosophy you are attempting to invoke, John Locke and Thomas Jefferson both understood the concept of the social contract: you surrender absolute, unchecked individual liberty in exchange for ordered, protected liberty under a government of laws.

If you want to discuss legal jurisprudence, stick to the document that actually commands the force of law, that is, if your above the 8th grade level brain can grasp it.

Yet Thomas Jefferson wrote in 1787 that he thought that a rebellion every 20 years would be beneficial to the tree of liberty.

Hard to do that if the government has your guns.

 

[meaner gene]

The simple fact is that things are banned in the US. Imagine you made a gun that was inherently unsafe. One person shot the gun and ten people died. Then the government can ban that gun.

Guns don’t have to meet mandatory safety standards; here’s why

Take a Stand Against Gun Violence

www.ceasefirepa.org

While the federal government can mandate recalls of items including unsafe toys, cars, or medications, it is unable to do so for defective firearms.

When the Consumer Product Safety Commission (CPSC) was created by Congress in 1972 to set safety standards for most consumer products, firearms were specifically excluded from CPSC’s jurisdiction.