Abatis
Platinum Member
Why do I have to cite the SCOTUS?
Because they the part of government that has the power to interpret and declare what the law is and apply the Constitution and its principles to operations of the Legislative and Executive branches.
It's a group of men and women with an opinion. The only difference is they get to put it into law, I don't.
Correct.
I think the right to form a militia that can bear arms is the point of the 2nd.
No.
The 2nd Amendment does not speak to militia in any legal manner, shape or form. The 2nd Amendment has never been examined to inform on any aspect of militia organization or control.
The authority to call-up, organize and command the citizens as militia is enumerated in the Constitution's grant of powers to Congress in Article I, Section 8, clauses 15 & 16 and Article 2, Section 2, clause 1 of the Constitution, establishing the President as Commander in Chief of the part of the militia in actual service to the nation.
That Congress shall have Power . . . to provide for calling forth the Militia . . . and provide for organizing, arming, and disciplining, the Militia, means nobody else can decree who among the citizenry is obligated to serve in the militia, or how enrollment will occur, or call-up the militia into service, or set the structure of militia organization and command, or declare how the militia is armed and what kinds of arms are appropriate for service, or to establish the regimen of training for the militia.
Legally, the 2ndA has no action or effect regarding militia; there is no right to form militia recognized in the 2ndA for anyone (the people or a state); militia formation is exclusively a power conferred to the federal government (for as long as he Constitution is in force).
Otherwise, why mention militia at all.
The first half of the 2ndA, the "declaratory clause" is a statement of principle. It only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a dangerous 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).
Why not just say "Hey, guys, this amendment says you can carry your peashooter anywhere you want, any time of day and have it on your persons all the time if you want"?
Actually, the people possess the right to keep and bear arms even if the 2nd Amendment wasn't there. I do not point to, or refer to the 2ndA for my right to arms because the right to arms is not granted, given created or established by the 2ndA, which means the RKBA is not in any manner dependent on the Constitution to exist.
The right to arms exists and is possessed by the citizen because "We the People" did not grant any power to the federal government to allow it to have any interest in the personal arms of the private citizen. To put it another way, all the 2nd Amendment "does" is redundantly forbid the federal government to exercise powers it was never given -- and now we are back to the principle of inherent, pre-existing rights.
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