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

[meaner gene]

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.

I think this is where the interpretation of military weapon for the 2nd amendment should be limited to what the military would issue it's citizen soldiers to take home, to practice with on their own time, and to have at the ready when called upon.
This can include all modern military weapons, like cannon, and bazookas, and even nuclear weapons,
But be excluded because the military would never release them for the soldiers to possess privately.
Thus the military weapons would be limited to those the military deemed proper for their citizen soldiers to personally possess.

The historical concept is clear, that the US relied on militia like the minutemen to win the revolutionary war, and thus would enshrine their continued existence in the 2nd amendment.

 

[Dante]

/—-/ I once debated a gun grabber who claimed the comma in the 2nd Amendment was a typo.
Seriously, he thought the typist made a mistake when drafting the document b

hilariously funny, if it weren't so pathetic

 

[Dante]

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.

If the militia clause is obsolete, then half the amendment no longer performs its original explanatory function. Removing obsolete language may simplify the text, but it does not address the larger question of scope that dominates modern 2A litigation.

Those words identify the existence of a right, but they do not answer modern scope questions. Does "arms" include machine guns? Grenades? Stinger missiles? Nuclear weapons? If not, where is the limiting principle found in the text itself?

The fact that courts have spent decades debating those questions suggests the text does not resolve them.

Agreed. But that merely restates my concern. The scope is being defined primarily by judges rather than by constitutional text. Heller defined one version. A future Court may define another. That means the practical meaning of the right is increasingly dependent on Court membership rather than constitutional language.

As a purely illustrative example:

"The right of law-abiding citizens to possess and carry firearms for lawful self-defense, hunting, sporting, and other lawful purposes shall not be infringed, subject to reasonable regulations enacted to protect public safety."

Whether one agrees with that wording is beside the point. The point is that it expressly identifies both the purpose of the right and the existence of regulatory authority. The current text does neither, leaving courts to infer both.

My argument is not that my wording is necessarily correct. My argument is that a modern amendment should answer questions that presently require generations of litigation and often ideological, ad hoc judicial interpretation to resolve.

Retired U.S. Supreme Court Justice John Paul Stevens proposed a few realistic solutions

Retired Justice Stevens proposes this fix for the Second Amendment​

Expert Brief
The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.

Michael Waldman
Published May 20, 2014
U.S. Constitution

 

[Dante]

Yeah, it's a lie. It's fake news. It's TDS.

And it's so much of a lie that you debunked me with your sources and your facts.

And then I come along with.... the Founding Fathers and what they said and make you look like an idiot.

Amendment II: House of Representatives, Amendments to the Constitution

17, 20 Aug. 1789

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.""

The version of the future 2A that they were talking about on Aug 17th 1789.

It says "no person religiously scrupulous shall be compelled to bear arms"

Mr Gerry (of gerrymandering fame) said:

"Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."

Then he said :

"Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."

So, this is what they were talking about. Whether to have a religiously scrupulous clause in the future 2A. Mr Gerry felt that the govt would say "Mormons are religious scrupulous" and they could destroy the militia.

Then Mr Gerry said:

"Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head. "

So, he's talking about taking away to the "right to bear arms", and he's using the term "exclude those from militia duty" synonymous (which means it's being used to mean the same thing in case you don't know).

So why would he do this? Because it's pretty clear here that Mr Gerry thinks that "bear arms" means "militia duty".

Then:

"Mr. Jackson was willing to accommodate. He thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent.""

Ah, so they've gone from "compelled to bear arms" and they've changed it to "render military service".

Clearly Mr Jackson also thinks that "bear arms" is "render military service" or "militia duty".

Then:

"Mr. Scott objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; "

"called upon for their services" is the same as "bare arms"

It's pretty obvious that the Founding Fathers saw the "right to bear arms" as the right to be in the militia.

Even in the last century we see that this is the case.

The Dick Act of 1903

Militia Act of 1903 - Wikipedia

en.wikipedia.org

The Dick Act made the "organized militia" which is basically the National Guard. There was a problem. They needed a militia that could function, not like the militia where every man and his dog turned up and it didn't work.

So they made a more professional militia. But if it were the ONLY militia as stated in Article 1 Section 8 and the Second Amendment, then everyone would have been able to demand to join up. So they made the "unorganized militia" which still exists.

You turn up to the National Guard and demand to be in it, they say "well, you're in the militia already, you don't need to be in the militia to have your right to bear arms, you can do that in the "unorganized militia", so go away".

The Founding Fathers & the Militia Act of 1903

 

[M14 Shooter]

Retired U.S. Supreme Court Justice John Paul Stevens proposed a few realistic solutions

You are truly a stupid shit.

Toward that end, Stevens is proposing a change to the Second Amendment to clarify that it applies only to citizens’ right to keep and bear arms in state militias.

This requires an amendment.
You will never get 38 states to agree to an amendment to this effect.

Thus, the solution is not realistic.

 

[RetiredGySgt]

You are truly a stupid shit.

Toward that end, Stevens is proposing a change to the Second Amendment to clarify that it applies only to citizens’ right to keep and bear arms in state militias.

This requires an amendment.
You will never get 38 states to agree to an amendment to this effect.

Thus, the solution is not realistic.

furthermore not all states have militias.

 

[Dante]

You are truly a stupid shit.

Toward that end, Stevens is proposing a change to the Second Amendment to clarify that it applies only to citizens’ right to keep and bear arms in state militias.

This requires an amendment.
You will never get 38 states to agree to an amendment to this effect.

Thus, the solution is not realistic.

Stupid? You own that.

It is realistic. It is even possible, but not probable in the immediate future. But the Framers made it so. It was their belief that amendments should be a fight worth winning, not some populist plebiscite, fools like you always demanding. - Representative democracy and not Popular democracy was the vision, the goal.

 

[Dante]

furthermore not all states have militias.

The dissonance there is deafening,

 

[RetiredGySgt]

The dissonance there is deafening,

Just as soon as the mandate that all states have a militia you can ask for what you want.

 

[frigidweirdo]

I am against capital punishment.

So? What does that have to do with the topic? What does it even have to do with what I say?

Just because I wrote "capital punishment", doesn't mean this topic is now about capital punishment.

 

[frigidweirdo]

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.

And who said the US was fucked up? Well, they were right.

 

[frigidweirdo]

The Founding Fathers & the Militia Act of 1903

What kind of a ******* idiotic post is that? Do you want to have an adult conversation? Or are you at the kiddie table?

 

[frigidweirdo]

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.

But what you haven't said is who owned the cannon. You haven't provided the evidence for any of this.

And if you can find a person who isn't "clearly ignorant of history" because they don't know something about the history of the universe from day zero to today....

 

[M14 Shooter]

It is realistic.

Says the stupid shit.

See the map? Count the green and orange states until you get to 13.
Every time you do, your amendment fails.

 

[westwall]

But what you haven't said is who owned the cannon. You haven't provided the evidence for any of this.

And if you can find a person who isn't "clearly ignorant of history" because they don't know something about the history of the universe from day zero to today....

The rich people, obviously. Though these days a middle class individual can afford one.

And that is clearly a problem that you, and dainty, and bunghole have. You know virtually nothing about the subject, but lecture those of us who have studied it for DECADES!

 

[Rumpole]

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.

"Repurposed" may have been an imprecise choice of words. "Reoriented" would better capture my point.

My argument is not that Heller formally overruled a Supreme Court precedent holding that the Second Amendment protected only a collective militia right. Rather, Heller dramatically shifted the focus of Second Amendment analysis away from the prefatory militia clause and toward an individual self-defense right centered in the home.

Before Heller, the militia language occupied a far more prominent place in Second Amendment debates. After Heller, the dominant constitutional question became the scope of an individual's right to possess firearms for lawful purposes unrelated to militia service.

Whether one agrees with Heller or not, that practical reorientation is difficult to deny. Modern Second Amendment litigation is overwhelmingly about the boundaries of individual firearm ownership, not the preservation of state militias.

 

[Rumpole]

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.

No one is going to take away your right to self defense with fire arms. And once again you've abandoned law for political philosophy.

Jefferson also thought the Constitution should be rewritten every generation. Are we bound by that opinion as well?

The question was never whether Jefferson personally favored an armed populace. The question was whether his private correspondence carries the force of law. It does not.

More importantly, your argument proves far too much. If the purpose of the Second Amendment is to facilitate armed rebellion against the government, then you are conceding that the right exists for insurrectionary purposes, a proposition the courts have never embraced.

The Constitution created a republican system in which governments are changed through elections, legislation, impeachment, and amendment—not periodic armed uprisings. Whatever Jefferson may have mused about in a letter, the legal authority of the United States comes from the Constitution, not from selected quotations extracted from his personal correspondence.

In short, citing Jefferson's "tree of liberty" letter does not answer the legal question any more than citing Ben Franklin's jokes would answer a question about the Commerce Clause.

 

[Rumpole]

I think this is where the interpretation of military weapon for the 2nd amendment should be limited to what the military would issue it's citizen soldiers to take home, to practice with on their own time, and to have at the ready when called upon.
This can include all modern military weapons, like cannon, and bazookas, and even nuclear weapons,
But be excluded because the military would never release them for the soldiers to possess privately.
Thus the military weapons would be limited to those the military deemed proper for their citizen soldiers to personally possess.

The historical concept is clear, that the US relied on militia like the minutemen to win the revolutionary war, and thus would enshrine their continued existence in the 2nd amendment.

In any case, it seems evident, clear as day, that the second amendment, as written, is an anachronism and thus needs to be updated to reflect modern realities.

 

[Rumpole]

Retired U.S. Supreme Court Justice John Paul Stevens proposed a few realistic solutions

Retired Justice Stevens proposes this fix for the Second Amendment​

Expert Brief
The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.

Michael Waldman
Published May 20, 2014
U.S. Constitution

I'm familiar with Steven's treatise, but thanks.

 

[Rumpole]

So? What does that have to do with the topic? What does it even have to do with what I say?

Just because I wrote "capital punishment", doesn't mean this topic is now about capital punishment.

I was agreeing with you and I could have articulated the comment better.