The real meaning of the 2nd Amendment

[woodwork201]

Not so much.

Five types of gun laws the Founding Fathers loved

A leading historian of constitutional thought says the contemporary Second Amendment debate is founded on serious misunderstandings.

theconversation.com

2aguy did a great job on this, and perhaps may others since I am responding without having read later posts in the thread, but let me add my 2 million dollars worth.

#1 - Registration
Being required to own a gun that met the requirements of the militia is not registration. Most, if not all, guns didn't have a serial number. There was no requirement to notify the government if you transferred a firearm.

Having to report for muster with an appropriate firearm is not registration. What if a person owned 50 guns? Was there someone at their door counting them all, marking them all, and tracking every movement or transfer?

#2 - Public Carry
The article linked starts its public carry section by talking about laws in London and in Britain. It refers to the States adopting the British common law rules on many things including gun control. For instance, there's this quote in an article linked from SavannahMan's link:

As a North Carolina jurist, James Davis, put it in 1774:​

Justices of the Peace, upon their own View, or upon Complaint, may apprehend any Person who shall go or ride armed with unusual and offensive weapons, in an Affray, or among any great Concourse of the People, or who shall appear, so armed, before the King’s Justices sitting in Court.​

What this reference proves is that the British law restricted the right to keep and bear arms which was one of the very things that led to the revolution and is one of the key reasons why the 2nd Amendment explicitly states that the right to keep and bear arms shall not be infringed - very explicitly to make sure that these same rules from Britain did not happen in the United States.

Another one, proving the British gun control laws before the Revolution and before the Constitution, and, once again, the very reason why the 2nd Amendment says, "shall not be infringed":

Writing at the close of the eighteenth century, the author of The Grammar of English Law , echoed this account by confidently asserting that “no man, great or small, shall go or ride armed, by night or by day, with dangerous or unusual weapons, terrifying the good people of the land.” J.P. Gent’s A New Guide for Constables (1705) averred that the Statute of Northampton prohibited riding or going “armed offensively” before the “King’s Justices” or in “Fairs or Markets.” Additionally, Joseph Keble, author of another popular guide to the law, warned that if anyone was so “bold as to go or ride Armed, by night or day, in Fairs, Markets, or any other places,” constables could disarm him and “commit him to the Goal.”

These references from SavannahMan prove that it was the explicit intent of the Founders to overturn and end these very gun control laws restricting public carry.

#3 - Stand-your-ground laws
Stand your ground laws aren't gun control laws; they're defense of life and property laws. But that's OK, we can rip you on that one, too.

First, what 2aguy said is important. Zimmerman was not a stand-your-ground case. Obama through that into the mix only out of opportunity to try to get more submission by Americans to the force of criminals designed to destroy America through empowering the government as our only authorized "protectors".

Regarding stand-your-ground, Blackstone says:
[T]he law requires that the person, who kills another in his own defence, should have retreated as far he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that, not fictiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood. And though it may be cowardice, in time of war between two independent nations, to flee from an enemy; yet between two fellow subjects the law countenances no such point of honor: Because the king and his courts are the vindices injuriarum [avengers of injuries], and will give to the party wronged all the satisfaction he deserves.

Yeah, because we all know how well that whole idea of the wronged party getting all the satisfaction he deserves works out, don't we?

But, in actuality, English law did allow stand-your-ground very similar to its use today in the United States. If you are the aggressor or equally share the aggression then stand-your-ground would not save you. The article mentions two scenarios, one where stand-your-ground would not be defensible and one where it would.

If you agree to fight someone and then he basically kicks your ass but then he goes beyond kicking your ass and is now going to kill you. The law would allow a self defense argument only if you did everything possible to retreat and found yourself with no possible retreat. In other words, winning a fist fight does not give you the right to kill your opponent. But it also does not give your opponent the right to kill you. If your opponent appears now to be determined to kill you, run. If he catches you, defend yourself.

In the other scenario, you did not equally or originally start the aggression but someone attacks you with intent, as you believe, to kill or seriously injure you, then in English law you did not have to retreat.

Thus, under the English rule, as articulated by Edward Coke, a person was justified in using deadly force against another, even to the point of killing the other, if threatened with imminent death or grave injury for which the defendant bore no responsibility or blame. In other cases where the defendant and the deceased mutually came to blows and the embroglio reached the point where the defendant found it necessary to kill the other rather than die, the defendant could only claim self-defense if the defendant had first attempted to retreat; in other words, if the defendant's "back [was] to the wall" before using deadly force against the other person. Thus, in his 1628 treatise Institutes of the Laws of England, Lord Coke wrote:​

Some be voluntary, yet being done upon inevitable cause, are no felony. As if A be assaulted by B, and they fight together, and before any mortal blow be given, A giveth back [retreat] until he cometh to a hedge, wall, or other strait, beyond which he can not pass; and then, in his own defense and for safeguard of his own life killeth the other; this is voluntary, and yet no felony . . .Some, without giving back [retreating] to a wall, etc., or other inevitable cause, as if a thief offer to rob or murder either abroad or in his house, and thereupon assault him, and defende himselfe without giving back, and in his defense killeth the thiefe, this is no felony; for a man shall never give way to a thiefe, ect., neither shall he forfeit anything.​

So it is quite clear that English stand-your-ground was, in actuality, very close to modern stand-your-ground in the United States. It is those states who do not recognize the rights of liberty and pursuit of happiness, including private property rights, that argue against, and legislate against, stand your ground.

#4 - Safe Storage Laws
Massachusetts is one of the states that didn't insist on a gun rights amendment in the Constitution. In fact, Massachusetts didn't ratify the Bill of Rights until 1939.

So Massachusetts had a different outlook on liberty than did the other states. That didn't matter, though; their law that forbid the storage of a loaded musket or rifle in the home, referenced in the article you SavannahMan posted, was created in 1783 before the Constitution and before the Bill of Rights.

When the Bill of Rights was ratified in 1791, even though not by Massachusetts, Massachusetts was still obligated by it. As far as I can find, that law was never challenged so we don't have contemporary writings on the application of that law.

As for storage of powder, that didn't infringe on the right to keep and bear arms. At 100 grains per round, that's 70 per pound, so about 2100 rounds in at home storage of a very dangerous compound wasn't considered an infringement. Modern powder is not explosive and modern ammunition doesn't represent the same fire risk.

And, in fact, as 2aguy mentioned, men were required to keep ammunition on hand - powder and ball for a minimum of 16 rounds.

#5 - Loyalty Oaths
Obviously that has nothing to do with gun control. The loyalty oaths, though, were during the revolutionary war. You don't necessarily keep armed enemies around during a time of war. It certainly wasn't unconstitutional because the Constitution didn't exist at the time.

It would be an interesting topic if it came up today. Of course we know that the Democrats would be all for it, as they were when they put Japanese Americans in prison camps during WWII.

 

[woodwork201]

The democrat party was created by two slave owners……according to your very own standard that makes them slave rapists…since the democrat party started the war to keep slaves….they started the war to keep raping their slaves……just following your beliefs…

And, in fact, the Democrats are still the party of slavery and the party of rape and the party of slave rapists. Just look at the southern border and all of the women and children raped and molested and sold into slavery in the United States.

 

[woodwork201]

None of the firearm regulatory measures proposed by Democrats are un-Constitutional and do not violate the Second Amendment – including UBCs, AWBs, and magazine capacity restrictions, having never been invalidated by the Supreme Court.

Such measures are perfectly consistent with current Second Amendment jurisprudence.

Conservatives are lying when they claim that such measures ‘violate’ the Second Amendment.

Jurisprudence is an interesting concept; I use the word (and the theories) a lot myself. But jurisprudence, just like the decisions of the Supreme Court, just offers interesting input to help understand the Constitution but neither jurisprudence nor the Supreme Court prove the constitutionality or unconstitutionality of anything.

But jurisprudence isn't what empowers or limits our government; the Constitution does that. And the Constitution says the right of the people to keep and bear arms shall not be infringed.

 

[woodwork201]

The liberties enshrined in the Bill of Rights are neither unlimited nor absolute.

Government has the authority reflecting the will of the people to place limits and restriction on our rights consistent with applicable case law – including the Second Amendment right.

Where do they get that authority? If they can get the representatives of 75% of the States they can do the things you suggest. Otherwise, they have absolutely zero authority to act outside the Constitution.

 

[JoeB131]

Wrong….you keep voting for the slave rapist party, then pretend to hold the moral high ground….

I vote for the party that doesn't support killer cops, arming the gangs like soldiers, and screwing the working man to benefit the rich.

 

[JoeB131]

Actually, the Third Amendment has nothing at all to do with militias.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
During times of peace, the only people who are Federal soldiers are the standing army. The militia are only Federal soldiers when called up in a very short, explicit, set of circumstances outlined in the Constitution.

There's no way to get to what you claim.

During that period, the militia, army and police were pretty much interchageable...

The fact that we have police armed like soldiers now kind of violates the principle of the third amendment.

 

[Blues Man]

The liberties enshrined in the Bill of Rights are neither unlimited nor absolute.

Government has the authority reflecting the will of the people to place limits and restriction on our rights consistent with applicable case law – including the Second Amendment right.

The second amendment is in itself limited.

You'll notice only the right to keep and bear arms is protected.

You have no right to fire that weapon wherever you want at whatever you want

 

[2aguy]

I vote for the party that doesn't support killer cops, arming the gangs like soldiers, and screwing the working man to benefit the rich.

You vote for the slave rapist party.......since you constantly condemn the Founders as slave rapists, voting for the political party that was actually created by slave rapists is just funny....

 

[RetiredGySgt]

You vote for the slave rapist party.......since you constantly condemn the Founders as slave rapists, voting for the political party that was actually created by slave rapists is just funny....

that is different of course, why? cause he says so that's why.

 

[JoeB131]

You vote for the slave rapist party.......since you constantly condemn the Founders as slave rapists, voting for the political party that was actually created by slave rapists is just funny....

Let me know when you have an original thought, buddy.

 

[2aguy]

Let me know when you have an original thought, buddy.

Yeah… that post hit you close to home

 

[JoeB131]

Yeah… that post hit you close to home

No, you just type the same crap, and I don't even think you comprehend the points being discussed... I halfway wonder if you are an NRA bot that no one bothers to check on.

 

[woodwork201]

During that period, the militia, army and police were pretty much interchageable...

The fact that we have police armed like soldiers now kind of violates the principle of the third amendment.

Wrong. The first police force in the United States wasn't formed until something like 1845. There was no interchangeable about it. The King's army was housed in the homes of the population. The Constitution expressly forbade that.

You leftists keep using what the British did as evidence of what the United States can do under the Constitution. You forget that whole revolution thing that happened in between. What the British did or did not do has no relationship to what went into the Constitution.

If you consider that the most important rights and limits on government went into the Constitution and the Bill of Rights, then you must also understand that it was their explicit intent to override the actions of the British King and his army.

Then, for those things that they did not mention in the Constitution and that they didn't write elsewhere from which we can ascertain original intent, then we may very well use common law, even going all the way back to the Magna Carta to try to understand original intent. But what you can't use as original intent are those very things that the British did as evidence when the Constitution expressly tells us otherwise.

The 3rd Amendment can not possibly mean what you said it means because the Federal Government had no authority over the militia in peace time.

 

[Bob Blaylock]

You leftists keep using what the British did as evidence of what the United States can do under the Constitution. You forget that whole revolution thing that happened in between. What the British did or did not do has no relationship to what went into the Constitution.

Much of went into the Constitution was in explicit rejection of how the British were doing things.

 

[Bob Blaylock]

The 3rd Amendment can not possibly mean what you said it means because the Federal Government had no authority over the militia in peace time.

There's an odd interpretation that has occurred to me, of the Third Amendment.

Back in 1791, we did not have any kind of electronic technology. No microphones, no surveillance cameras, no telephones to tap.

If the government wanted to spy on any individual, the only way to do so would be by putting a human being in a position to see and hear what that individual has been up to. Perhaps under the guise of compelling that individual to house a soldier in his home.

I think the Third Amendment is much closer than is obvious to most, to the Fourth Amendment, in intent and purpose. It's to protect the people from being spied on by agents of the government.

 

[beautress]

They need bodyguards because they are too cowardly to pass real gun reform to keep guns out of the hands of crazies.

Now, if we took the bodyguards away from them, imagine how fast they'd fix the problem.

Darn it, the Second Amendment really IS about militias, they'd all exclaim!

Sufficient laws have been passed and are currently being ignored, and nobody wants to rile an Aaron Burr.

 

[Open Bolt]

Why does one need military style weapons and large mag?

Why are you spouting nonsense about "need"? We aren't serfs and you are not our lord. It doesn't matter whether you think we need a certain weapon or not.

To kill.

That is incorrect. Self defense is about protection, not about killing.

Target shooting is about firing at inanimate objects.

 

[Open Bolt]

The original intent of the Second Amendment (and the Third Amendment) was to define and limit militias.

That is incorrect. The original intent of the Second Amendment was to mandate that the government always keep up a well-regulated militia, and to forbid infringement of the right of the people to keep and bear arms.

The original intent of the Third Amendment was to prevent standing armies from using people's homes as housing.

The original proposed text of the Second also allowed for contentious objections on religious grounds for being conscripted into a militia.

That is incorrect. The original proposed text had the conscientious objector language as a stand alone amendment. It was blended into the text of the Second Amendment later on, before then being removed completely.

The third was meant to limit the militia... it wasn't just about putting soldiers in people's houses,

That is incorrect. They were thinking of standing armies. They never would have dreamed of militiamen taking over people's homes.

However, if any militiamen had tried to do that, I think that the courts would have ruled that militiamen were forbidden from doing it too.

it was about having a permanent militia presence in communities in peacetime.

That is incorrect. It was intended that there always be a well-regulated militia 100% of the time.

The problem, of course, is that these original intents have been lost,

There is good news. The Supreme Court has started partially enforcing the Second Amendment.

Of course, it was never about gun ownership.

That is incorrect. The Second Amendment protects the right of the people to keep and bear arms.

Guns are arms.

Gun ownership was actually relatively rare in colonial America.

That is incorrect. Guns were quite common in colonial America.

There wasn't even a domestic gun industry, firing mechanisms had to be imported from Europe.

That is incorrect. We had gunmakers in the colonies as early as 1719. There was quite a thriving gun industry in the colonies by the 1750s.

The founding fathers believed in Well-Regulated Militias, and at the time, each state had reams of laws defining the militia, with everything from uniforms to what the standard weaponry should be. (Again, you can't do logistics for a militia if everyone shows up with a different caliber gun). What they didn't believe in was angry mobs with guns, which is why "popular rebellions" like Shay's Rebellion and the Whisky Rebellion were put down.

The Founding Fathers also believed in individuals using their guns for private self defense.

So did the Brits back then.

 

[Open Bolt]

You are kind of making my point for me... that the concern when this was being written was defining militias, particularly at the state level, and NOT allowing every yahoo who wanted a gun to have one so he can form an angry mob and overthrow the local government.

Militias were already defined. They knew what a militia was. They were concerned about protecting militias, not defining them. And they also protected the right of all citizens to have guns.

They need bodyguards because they are too cowardly to pass real gun reform to keep guns out of the hands of crazies.

It's not cowardice. Leftists politicians would love to be able to violate our rights.

The reason why they do not do so is because the NRA will not allow them to do so.

Now, if we took the bodyguards away from them, imagine how fast they'd fix the problem.

There is no problem. Nothing needs to be fixed.

Darn it, the Second Amendment really IS about militias, they'd all exclaim!

Leftist politicians already claim that. No one listens to them because everyone knows that they are lying.

The Second Amendment is only partially about militias. It is also about protecting the right of the people to keep and bear arms.

Well, it's pretty clearly written to me... that it's about well-regulated militias, not gun ownership.

You are mistaken. It is only partially about well-regulated militias.

It is also about the right of the people to keep and bear arms.

The Founders didn't like angry mobs with guns, and frequently put them down with- wait for it - well-regulated militias.

They did however like individuals using their guns for private self defense.

Yes, if you want to tell yourself that... but no. The Second and Third are clearly about militias.

That is incorrect. The Second is only partially about militias. It is also about the right of the people to keep and bear arms.

The Third was about standing armies. No one even conceived that a militia would act in a way that would offend the Third Amendment.

Although if a militia did ever act in such a way, I suppose they would readily say that the Third covered militias as well.

 

[Open Bolt]

This is a lie.

No it isn't. woodwork201 is telling the truth.

The ‘left’ knows exactly what the Second Amendment means and supports Second Amendment jurisprudence

That is incorrect. The left continually tries to violate the Second Amendment because they hate our freedom. The 9/11 hijackers hated our freedom too.

unlike many on the right.

That is incorrect. Most people on the right support and uphold the Constitution.

What the ‘left’ is referring to is the Second Amendment prior to Heller, when for over 200 years the Amendment was interpreted as a collective – not individual – right.

That is incorrect. The Supreme Court has always ruled that the right to keep and bear arms is an individual right. Take the 1939 Miller ruling as one example of this.

Indeed, it’s conservatives who lie about the Second Amendment – their most idiotic lie is that the Amendment codifies insurrectionist dogma when in fact there’s nothing in the history, text, or caselaw of the Second Amendment that authorizes private armed citizens to ‘take up arms’ against a lawfully elected government reflecting the will of the people.

Conservatives are telling the truth when they say that there is an individual right to have guns and use them for private self defense.