How the NRA Rewrote the Second Amendment

[JAMESBJOHNSON]

The 2nd Amendment hasn't been altered so the definition of MILITIA remains what it was when the 2nd Amendment was ratified.

 

[RjThoughts]

The 2nd Amendment hasn't been altered so the definition of MILITIA remains what it was when the 2nd Amendment was ratified.

Meaning only those ready to serve in the militia should have guns

 

[RjThoughts]

Meaning no women should have guns
Meaning no black men should have guns
Meaning no, non-land owning men should have guns


Okay, I can play this game, too.

 

[Mr_Jon_Thon]

Meaning no women should have guns
Meaning no black men should have guns
Meaning no, non-land owning men should have guns


Okay, I can play this game, too.

You just eliminated almost all shootings in Chicago.

 

[unregistered]

 

[Amberchgo]

Actually the Second Amendment says the same thing today as when it was passes in 1791.

It hasn't been rewritten by anyone.

 

[Colonel Hogan]

The point is, the 2nd Amendment when enacted had nothing to do with home defense, or fighting crime, or hunting, or gun-collecting, or target-shooting as a hobby, and certainly nothing to do with facilitating armed insurrection. It was rooted in fear of federal tyranny, yes -- but specifically the fear of a large national standing army, which early Americans feared because of their experience with the Redcoats. The point of the 2nd Amendment is to make a large standing army unnecessary by making sure the state militias (when brought into federal service under the President's command) will always be armed and ready to fight.

Which makes it completely irrelevant now. We have long, long since made our collective national decision to rely mainly on regular, professional forces for national defense, calling the National Guards (themselves no "militias" in the traditional sense) into service only in times of severe manpower-shortage. We have made that decision and, so far as the armed forces being a threat to domestic liberty is concerned, we have never had reason to regret it.

Obviously, you and Waldman don't understand the use of the comma and what it means. You would have us believe that the federal government through the vehicle of the Second Amendment recognizes and secures the right of citizens to bear arms in self-defense of their corporate organization as a state or nation while simultaneously withholding the right to bear arms in self-defense of themselves individually from wherever illegal aggression may come. This seems legally rational to you and fully in keeping with the specific intent of the Amendment's authors? A legal right to bear arms in defense of the state to the point of death, but not so to defend self, home or family?

If that be the case, then perhaps you could tell us how it came to be that every single state managed to codify an individual right to self-defense, including the circumstances justifying the infliction of deadly force, in such a blatant contradiction of the Constitution and the Bill of Rights.

You clearly need some assistance from the Supreme Court via Heller:

"The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.

***************

a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.

*********************

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment : Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”

**********************

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed.

***********************

3. Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.

**********

Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.

**********

It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.

As the Supreme Court unmistakably held in Heller, Michael Waldman’s assertion that the “Founders never intended to create an unregulated individual right to a gun” is, while technically correct, legally irrelevant. As SCOTUS makes clear, that which was understood, accepted and unquestioned, did not require “creation.” Of all the perfectly legal applications for which personal firearms may be put to use, the Second Amendment sought only to emphasize the legal sanctity of one – the right of the people to keep and bear those same arms for the purpose of maintaining state militias – while nonetheless affirming the individual right to use individually OWNED firearms for any number of other perfectly legal purposes. It is precisely for this reason that the operative clause of the second half of the Amendment DOES NOT grammatically or in any linguistic context link the infringement prohibition to the single effect of supporting and maintaining militias.

The operative clause is seemingly vague not by error but for a purpose. Neither the codification of the right nor the presumption of individual gun ownership as the vehicle by which the militias would be armed was intended by Constitutional framers to alter or even remotely address the thoroughly irrelevant issue of gun ownership itself. And while few Founders may have envisioned “the people” failing to exercise their right to establish and maintain state militias, the right was theirs to do with as they wished. Certainly none but the most legally myopic would suggest that the failure to exercise one pre-existing right of gun ownership automatically negates all other pre-existing legal rights of gun ownership through the application of no logical, rational thought whatsoever. Lest there be any misunderstanding on this issue, the infringement prohibition was articulated with the obviously broadest possible intended application.

Once codified and protected from infringement, the individual right does not stand for the right of “freedom” from all reasonable government regulation. But does it really need to be argued that the fundamental role of government should be to protect and expand freedom to the greatest extent possible and that restrictions by government upon individual freedoms in the interest of public safety be compelled by the most extreme circumstances rather than mere legislative or law enforcement convenience?

This is without question for rights uniquely protected by the Constitution. They cannot be merely regulated out of existence as the District of Columbia attempted to do within its jurisdiction. Even the most pedestrian of activities such as the production and consumption of alcoholic beverages, once banned by Constitutional amendment, could only be reinstituted by the same. The District’s ban of handgun ownership within one’s home clearly exceeded the lawful scope of reasonable regulation and unlawfully infringed upon the pre-existing right of self-defense on an individual’s property and within his very domicile where that right should be most pre-eminent.

As you and others have correctly argued, the Second Amendment did not CREATE the PRE-EXISTING RIGHT of individual gun ownership, but neither did that right expire with the apparent passing need for citizen militias.

And neither you nor any MAJORITY (much less a minority) of fellow citizens may infringe upon that now CONSTITUTIONALLY CODIFIED and protected right under the guise of "regulation," but only by the CONSTITUTIONAL AMENDMENT PROCESS stipulated by the document itself.

 

[Liar]

The libbies lost. Get over it.

Ah, like the conservatives should get over Roe v Wade, you mean?

 

[JAMESBJOHNSON]

Meaning only those ready to serve in the militia should have guns

I think the 14th Amendment Equal Protection Clause expanded the militia pool to include women and blacks and Indians and Micks.

 

[about_average]

We have made that decision and, so far as the armed forces being a threat to domestic liberty is concerned, we have never had reason to regret it.

Read about the Bonus Army.

I've often wondered why there would only be one place in the Bill of Rights where "the people" refers to everyone as a whole, while everywhere else "the people" refers to individuals.

 

[4est_4est_Gump]

Jesus fucking Christ...


The idea that Americans can bear arms predates the NRA by about 200 years...


Christ on a cracker.

 

[KingOrfeo]

The libbies lost. Get over it.

Lost what? You know this is not a set of issues one court case or election or whatever can settle. If such went against the gun-rights crowd, you think they'd accept the whole thing as settled and shut up?!

 

[RobDownSouth]

"Guns embiggen the smallest of men" - Abraham Lincoln

"....technically correct, but legally irrelevant..." - Colonel Hogan

 

[KingOrfeo]

Any of you libtards care to explain where the Selective Service Act draws its draftees?

Nowhere, any more, it's an all-volunteer force, as you know.

 

[BotanyBoy]

Oh, by the way fucknuts, I KNOW how to poperly shoot AND care for a gun. I just chose NOT to. Why? Because what I have for possessions are not worth killing over.

That's great for you, totally not the subject.

And don't bring in the "Protect your family from intruders and rapists" nonsense.

That's your opinion, tens of thousands of violent crimes thwarted by showing some thug the bidnizz end of a hand cannon or 12ga every year however is not opinion and they say otherwise, if you got beef with that take it up with the DOJ/FBI.

First, they'll have to get into the doors, secondly, they'll have to ascend a staircase...thirdly, as a former cook/chef, I have knives all over the place, honed well, and ready to use.

Rely on a chicken shit door for sekurity then bring a knife to a gun fight.....brilliant.

I'm talking about the suburban gun fucknuts, not the people that ACTUALLY live on farms, far into the woods, or in Alaska or other places with sparse populations. There are places in my state where a rifle is needed: black bears are not as scared of humans as they once were.

Humans are by far the deadliest animal threat to other humans in rural, suburbia and urban America. Soccer mom central by far more dangerous than rural Muricuh and it isn't because of the bear invasion. Like it or not if you want to be prepared to handle a worst case scenario defense situation (dealing with an armed assailant) you need a gun and you need to know how to use it like a bawss or hire someone who does. Otherwise it's an irrefutable fact that you are simply ill-equipped to manage a personal/familial security threat.

You know those type of people, the small-dicked wannabe warrior who needs the gun because "the gummermint might come and take him away for speaking out against it," or the "total mental case" that things it's cool to shoot 80+ round/second.

Now arming oneself for the purposes of insurrection are pretty bat shit...but that's truly a microscopic population of fringe nuts, and you along with a few others I'm sure, are trying to paint gun owners (far more than the handful of cray cray who deserve it anyhow) with that brush and I'm calling you full of shit for it.

I bet the number of civilian individuals that actually own 80rnd/sec guns can be counted on 1 hand if any exist at all. The anti gun loons freak harder over a gun's looks more than they do it's function, or even how big of a public threat they are. Assault rifles for example....Ak's and AR's are about as big of a public health threat as faulty vending machine accidents and peanuts, not even a joke. You should be more concerned about E.coli at your favorite eats spot, it's like a billion fucking times more likely to kill you than crazy with an "assault" weapon.

Small cal handguns however...that's a whole diff bag of cats.

 

[KingOrfeo]

The 2nd Amendment hasn't been altered so the definition of MILITIA remains what it was when the 2nd Amendment was ratified.

Certainly it has. There is a federal statute defining the militia.

10 U.S. Code § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

This is the Militia Act of 1903 -- enacted long after the 2nd Amendment.

I've done some research, and apparently the "unorganized militia" part has never, ever been used for any purpose; I wonder why it's in there at all.

 

[KingOrfeo]

Obviously, you and Waldman don't understand the use of the comma and what it means. You would have us believe that the federal government through the vehicle of the Second Amendment recognizes and secures the right of citizens to bear arms in self-defense of their corporate organization as a state or nation while simultaneously withholding the right to bear arms in self-defense of themselves individually from wherever illegal aggression may come.

No, not withholding; just not granting or guaranteeing, either.

 

[KingOrfeo]

I think the 14th Amendment Equal Protection Clause expanded the militia pool to include women and blacks and Indians and Micks.

Not women; see post #41.

 

[KingOrfeo]

Read about the Bonus Army.

Read about Zucotti Park; it does not take an actual army to disperse a crowd of demonstrators, ordinary police will do. Until you're ready to abolish those, don't bitch about it.

I've often wondered why there would only be one place in the Bill of Rights where "the people" refers to everyone as a whole, while everywhere else "the people" refers to individuals.

Actually the word "people" is used in its collective sense practically everywhere in the Constitution, from the Preamble to the 10th Amendment. Sometimes the individual sense is also implied, but it's always used collectively first and foremost.

 

[Colonel Hogan]

No, not withholding; just not granting or guaranteeing, either.

Again, per the analysis of SCOTUS in Heller, the Second Amendment does not "grant" anything, but it most certainly AFFIRMS the PRE-EXISTING RIGHT of gun ownership and by implication all of the legal uses of such ownership including that of self-defense.

Affirmation of a pre-existing right by a government constitution is about as close to a "guarantee" as legal philosophy can get.

 

[RjThoughts]

That's great for you, totally not the subject.



That's your opinion, tens of thousands of violent crimes thwarted by showing some thug the bidnizz end of a hand cannon or 12ga every year however is not opinion and they say otherwise, if you got beef with that take it up with the DOJ/FBI.



Rely on a chicken shit door for sekurity then bring a knife to a gun fight.....brilliant.



Humans are by far the deadliest animal threat to other humans in rural, suburbia and urban America. Soccer mom central by far more dangerous than rural Muricuh and it isn't because of the bear invasion. Like it or not if you want to be prepared to handle a worst case scenario defense situation (dealing with an armed assailant) you need a gun and you need to know how to use it like a bawss or hire someone who does. Otherwise it's an irrefutable fact that you are simply ill-equipped to manage a personal/familial security threat.



Now arming oneself for the purposes of insurrection are pretty bat shit...but that's truly a microscopic population of fringe nuts, and you along with a few others I'm sure, are trying to paint gun owners (far more than the handful of cray cray who deserve it anyhow) with that brush and I'm calling you full of shit for it.

I bet the number of civilian individuals that actually own 80rnd/sec guns can be counted on 1 hand if any exist at all. The anti gun loons freak harder over a gun's looks more than they do it's function, or even how big of a public threat they are. Assault rifles for example....Ak's and AR's are about as big of a public health threat as faulty vending machine accidents and peanuts, not even a joke. You should be more concerned about E.coli at your favorite eats spot, it's like a billion fucking times more likely to kill you than crazy with an "assault" weapon.

Small cal handguns however...that's a whole diff bag of cats.

Unlike you, I don't live in fear of the government OR the boogie man coming to get my stuff. I live and not cower.

 

[about_average]

Actually the word "people" is used in its collective sense practically everywhere in the Constitution, from the Preamble to the 10th Amendment. Sometimes the individual sense is also implied, but it's always used collectively first and foremost.

Give me an example in the Bill of Rights where "the people" doesn't 100% apply also to individuals.
The second amendment is the only one I know of where people argue it only applies collectively, to militia members.

 

[about_average]

Read about Zucotti Park; it does not take an actual army to disperse a crowd of demonstrators, ordinary police will do. Until you're ready to abolish those, don't bitch about it.

I was merely addressing your comment about the armed forces never being used against citizens, which wasn't a true statement. And it's happened more than once.

 

[cjh]

Again, per the analysis of SCOTUS in Heller, the Second Amendment does not "grant" anything, but it most certainly AFFIRMS the PRE-EXISTING RIGHT of gun ownership and by implication all of the legal uses of such ownership including that of self-defense.

Affirmation of a pre-existing right by a government constitution is about as close to a "guarantee" as legal philosophy can get.

Heller was a 5-4 opinion.

Not unanimous.

Not 8-1.

5-4.

As Justice Stevens noted in footnote 2 of his dissent in Heller:

Until the Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F. 3d 1161, 1164–1166 (CA10 2001); United States v. Napier, 233 F. 3d 394, 402–404 (CA6 2000); Gillespie v. Indianapolis, 185 F. 3d 693, 710–711 (CA7 1999); United States v. Scanio, No. 97–1584, 1998 WL 802060, *2 (CA2, Nov. 12, 1998) (unpublished opinion); United States v. Wright, 117 F. 3d 1265, 1271–1274 (CA11 1997); United States v. Rybar, 103 F. 3d 273, 285–286 (CA3 1996); Hickman v. Block, 81 F. 3d 98, 100–103 (CA9 1996); United States v. Hale, 978 F. 2d 1016, 1018–1020 (CA8 1992); Thomas v. City Council of Portland, 730 F. 2d 41, 42 (CA1 1984) (per curiam); United States v. Johnson, 497 F. 2d 548, 550 (CA4 1974) (per curiam); United States v. Johnson, 441 F. 2d 1134, 1136 (CA5 1971); see also Sandidge v. United States, 520 A. 2d 1057, 1058–1059 (DC App. 1987). And a number of courts have remained firm in their prior positions, even after considering Emerson. See, e.g., United States v. Lippman, 369 F. 3d 1039, 1043–1045 (CA8 2004); United States v. Parker, 362 F. 3d 1279, 1282–1284 (CA10 2004); United States v. Jackubowski, 63 Fed. Appx. 959, 961 (CA7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F. 3d 1052, 1060–1066 (CA9 2002); United States v. Milheron, 231 F. Supp. 2d 376, 378 (Me. 2002); Bach v. Pataki, 289 F. Supp. 2d 217, 224–226 (NDNY 2003); United States v. Smith, 56 M. J. 711, 716 (C. A. Armed Forces 2001).

http://www.law.cornell.edu/supct/html/07-290.ZD.html

Heller is the law of the land. I have no problem with that. The Court resolves disputes. And the truth is, it makes law. Including constitutional law.

It's disingenuous to suggest, though, that the Heller majority's conclusion is obvious, or not subject to debate, and is easy to find if only you know how a comma works.

Plenty of smart people who studied the history of the amendment and who parsed its language concluded differently from the Heller Court. Most, in fact.

 

[Colonel Hogan]

Actually the word "people" is used in its collective sense practically everywhere in the Constitution, from the Preamble to the 10th Amendment. Sometimes the individual sense is also implied, but it's always used collectively first and foremost.

Obviously then you believe the discussion in Heller as to the collective context of "the people" vs. the individual context to be in error.

Without re-arguing the merits of that discussion, could you provide an example (apart from raising and maintaining a militia) where the "collective" right of the people to keep and bear arms is NOT infringed by the government confiscating the firearms of all people individually? Whenever some abstract number of weapons has been confiscated, the right of the people "collectively" has been infringed. That is the simple mechanics of the matter however imprecisely the "collective" right may be defined.

Speaking of simple mechanics, this is also the mechanism by which we know that the INDIVIDUAL RIGHT of gun ownership pre-dated the Second Amendment. In colonial America and after establishment of the United States people owned guns individually and the people "collectively," including their organization into various governing bodies, did nothing to deny or restrict that ownership.

Thus, the pre-existing right of individual ownership was assumed and was further affirmed through the lack of government action to correct the situation. It was affirmed once again by the operative clause of the Second Amendment.