More Bill of Rights

[gallo]

Now that the discussion about the religious clauses of the 1st Amendment has been settled, perhaps some of you would like to discuss the following.

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.

It seems to me that any discussion need determine the meaning of "Militia," most especially a "well regulated" one, and what effect that clause has on the meaning of the 2nd Amendment as a whole. In other words, in your opinion, if that clause is removed, does it change the meaning of the rest of the Amendment.

Also, what does the Constitution mean when it mentions "the people?" Is that a reservation of a right to the people as a whole, the states, or does it reference individuals?

Keep in mind that the 2nd Amendment, unlike the 1st Amendment and others, has never enforced against the states under provisions of the 14th Amendment. The Supreme Court has never declared that the right to bear arms is a privilege or immunity that may not be abridged by the state.

The Supreme Court hasn't considered 2nd Amendment questions very often.

United States v. Cruikshank, 92 U.S. 542 (1875)
Presser v. Illinois, 116 U.S. 252, 265 (1886)
Miller v. Texas, 153 U.S. 535 (1894)
Robertson v. Baldwin, 165 U.S. 275 (1897)
United States v. Miller, 307 U.S. 174 (1939)
Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943)
United States v. Bass, 404 U.S. 336 (1971)
Barrett v. United States, 423 U.S. 212 (1976)
Scarborough v. United States, 431 U.S. 563 (1977)
Lewis v. United States, 445 U.S. 55, 65 n.8 (1980)
Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)
Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied 117 S. Ct. 276 (1996)
United States v. Gomez, 92 F.3d 770, 775 n.7 (9th Cir. 1996)

[Milton Bradley]

My two observations are the use of the word "arms" where many contend it implies "guns", and that the use of the term "people" applied to all citizens. After all, if the "people" are keeping the arms, they are clearly not being stored in an armory to be "regulated" by the Governor, and dispensed to the "militia".

[G. Adams]

As I see, if we explode the amendment it means that in order for a militia to be raised in times of crisis, the right of the people to keep and bare arms shall not be infringed.

As for the meaning of well-regulated militia, if it were meant to be the 2state approved" militia, then surely you wouldn't need the amendment at all. Weapons would be dished out as needed to those the state called to arms. Why, we could just call it a conscript army, as that's what it would be if it we're under direct political control. A militia is a locally raised force that is not under such control, if it were then it would just be another unit of the military. The "well-regulated" part suggests to me the framers were being cautious over their ability to stop uprisings, Shay's rebellion in mind. By saying "well-regulated" they were preventing any mob from claiming to be a rightful militia.

[Milton Bradley]

Quote by: G. Adams By saying "well-regulated" they were preventing any mob from claiming to be a rightful militia.

Ah, a good choice of words. I always have trouble articulating that particular thought.

[Jack]

I believe to the founding fathers, "the people" generally meant adult white male property owners. Those were the only people that were allowed to vote and hold office. It stands to reason they would never have imagined women or slaves taking up arms.

[gallo]

For information as to what was meant by "Militia," probably the best definition can be found in the 1776 Virginia Constitution.

Sec. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The Supreme Court has stated that the militia is composed of "'...civilians primarily, soldiers on occasion..." In one case did the Supreme Court voice the opinion that the 2nd Amendment applied to individuals only in the context of the maintenance of a militia or other such public force. Other cases haven't been so clear. Nevertheless, the prohibitions of the 2nd Amendment are a bar only to federal action. But the federal government can and does restrict the ownership of "arms" by individual citizens, and does intervene in cases in which states and cities restrict ownership by citizens.

[gallo]

Quote by: Isherwood I believe to the founding fathers, "the people" generally meant adult white male property owners.

True. But is there a context in the Constitution in which "the people" means each person individually, or does it carry the meaning of all persons collectively? For example, "We the people of the United States...", "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States...", "...the right of the people peaceably
to assemble...", "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...", "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people", and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It seems to me that the "right of the people to be secure" could be taken to be applicable to each individual. I'm not so sure about the others.

[gallo]

Quote by: G. Adams As for the meaning of well-regulated militia, if it were meant to be the "state approved" militia, then surely you wouldn't need the amendment at all.

Sure you would. The amendment prevents the federal government from infringing on the right of the state to maintain a militia.

Weapons would be dished out as needed to those the state called to arms.

Actually not. At the time the Constitution was written, the members of the militia furnished their own arms. You're confusing it from the modern day militia that we call the National Guard.

Why, we could just call it a conscript army, as that's what it would be if it we're under direct political control. A militia is a locally raised force that is not under such control, if it were then it would just be another unit of the military.

But it is and it was a military unit, and it was, by definition, meant to be "...in all cases...under strict subordination to, and governed by, the civil power." It was a state military unit, under the control of and regulated by the state. There was a great fear of standing armies back then. That fear carried well into the first days of our country.

The "well-regulated" part suggests to me the framers were being cautious over their ability to stop uprisings, Shay's rebellion in mind. By saying "well-regulated" they were preventing any mob from claiming to be a rightful militia.

Or, they were saying that the militia should be "trained to arms." One problem with the Continental Army during the Revolutionary War was that the militia units generally weren't good soldiers at first. They tended not to work well with other units of the Army, and tended not to follow orders well. But they were quite effective when deployed as irregular units.

[Jack]

"The right of the people to be secure in their persons, houses, papers

Since women and slaves owned neither houses or papers, I stick by my opinion. Our country was founded by, and intended for the use of, white male property owners. Not too much has changed.

[gallo]

Quote by: Isherwood Since women and slaves owned neither houses or papers, I stick by my opinion. Our country was founded by, and intended for the use of, white male property owners. Not too much has changed.

But I'm not debating that. In fact, you state the reason that the Pledge of Allegiance did not contain the word "equality." What I am asking is whether "the people" referred to each individual who had rights, or to all as a group. I am not implying that everyone was equal and had equal rights.

[G. Adams]

Quote by: gallo Sure you would. The amendment prevents the federal government from infringing on the right of the state to maintain a militia. Actually not. At the time the Constitution was written, the members of the militia furnished their own arms. You're confusing it from the modern day militia that we call the National Guard. But it is and it was a military unit, and it was, by definition, meant to be "...in all cases...under strict subordination to, and governed by, the civil power." It was a state military unit, under the control of and regulated by the state. There was a great fear of standing armies back then. That fear carried well into the first days of our country. Or, they were saying that the militia should be "trained to arms." One problem with the Continental Army during the Revolutionary War was that the militia units generally weren't good soldiers at first. They tended not to work well with other units of the Army, and tended not to follow orders well. But they were quite effective when deployed as irregular units.

If the state maintains the militia, it is not a militia, but a state army. A militia is self-supporting.

My comment as to weapons being dished out was part of the overall criticism that a militia cannot be maintained or directed by a political power. The weapons of a militia are, as you said, privately owned. This must be true today also.

A militia is a military unit, one that can and typically does act in support of state forces, but it is not under direct military control. That kind of military forces is a reservist army, not a militia.

We can only guess and put forth our opinions on the real meaning of "well-regulated", but I stand by mine. It is of course preferable for militias to have trained, many did have training of sorts back at the time of the revolutionary war, but it is in the nature of militias to be quickly raised and heavily green.

[underbear1]

It probably would have scared the hell out of the founding fathers that non property owning white men could have arms, and the thought of women and non whites having guns would have been unthinkable to them.

[xyzer]

Ish posts.

I believe to the founding fathers, "the people" generally meant adult white male property owners. Those were the only people that were allowed to vote and hold office. It stands to reason they would never have imagined women or slaves taking up arms.

reflecting his usual excellent perception.

He failed to add, that the founding fathers didn't specifically exclude or include any portion of the citizenry in their words! Thus it follows that the interpretations(and methods of interpreting) have been consitituionally perscibed and left to the electorate and ultimately the people.

Customs,mores and social norms/approachs change and the founders wisely recognized this.

[zynner]

People tend to look at the 2nd Amendment and ignore the 9th Amendment. That's a mistake.

The fundamental question is: Does an individual have a right to self-defense?

Yes.

Does that individual have a right to use tools in his attempt at self-defense?

Yes.

He therefore has a right to a firearm for use in self-defense.

Does an individual have a right to eat?

Yes.

Does he have a right to shoot an animal for food (as thousands of men did, no doubt, in 1787)?

Yes.

He therefore has a right to own a firearm for survival, as well as self-defense.

The founders understood this fundamental principle.

They also understood history. History is full of examples where a king or other government person claimed a right to rule over other men. They understood that would-be tyrants always demanded that the people disarm. They also understood that foreign invaders might be able to surprise attack somewhere before a military could be organized to defend the territory.

So, in writing the US Constitution, they defined the powers of the federal government and split up the powers of the federal government and the state governments.

The Bill of Rights were demanded by many people to amend that document because many people were suspicious of this new federal government. They wanted it made clear that the feds' powers were in fact limited. Each item is a limitation on the feds' powers. They knew from history that the nature of government is to abuse power.

The 2nd Amendment was a limitation on the powers of the federal government, disallowing it to prohibit firearm ownership of militia members.

This did not in any way kill off the fundamental right of self-defense or of taking actions to secure food for survival. The 9th Amendment is the most overlooked amendment but it is the most important to individual liberty. I would argue that it is the most overlooked because it is the most important to individual liberty -- which means it is the most vile to would-be tyrants, whether they are elected to office or appointed to a bench (or live in bureaucrat land).

Every individual has a fundamental right to own the tools of self-defense and survival. These are fundamental rights that existed way before the Constitution. In addition, each individual also has a fundamental right to join a militia. The only restriction is that the federal government is expressly prohibited from prohibiting militia members from bearing arms (which is exactly what tyrants attempt to do).

Any government that does not respect these basic principles is a government that does not respect liberty.

~ zynner

[zynner]

Quote by: Isherwood I believe to the founding fathers, "the people" generally meant adult white male property owners. Those were the only people that were allowed to vote and hold office. It stands to reason they would never have imagined women or slaves taking up arms.

That's not true.

The US Constitution (as originally written, before the amendments) said nothing about sex or race. It left the question of who could vote (and hold office) to the states. In fact, women did vote in some states, as did free blacks.

It's also true that the rights of women and blacks (in non-slave states, of course), where upheld in courts. The point is, these things were left to the states. Some states were plainly racist and sexist. Some were not.

~ zynner

[Milton Bradley]

Personally, I think there needs to be more focus on the definition of the word "arms".

[gallo]

Quote by: G. Adams If the state maintains the militia, it is not a militia, but a state army. A militia is self-supporting.

Not necessarily. That definition may be fitting for groups like the Michigan Militia, who dressed in camouflage and ran around calling each other "general" and "colonel", but that isn't what the framers of the Constitution had in mind.

First, is the definition of militia from the Virginia Constitution of 1776 that I quoted before. Clearly, that is not a reference to the militia that you propose.

Next there is the matter of what is said about the militia in the Constitution.

Quote by: Article I, section 8: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Quote by: Article II, section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

Clearly the framers of the Constitution meant another definition of militia from yours. Clearly they envisioned a militia that is supported by the state and subject to the call of the state.. Clearly they meant the primary definition of militia, an official reserve army, composed of citizen soldiers.

Quote by: G. Adams My comment as to weapons being dished out was part of the overall criticism that a militia cannot be maintained or directed by a political power. The weapons of a militia are, as you said, privately owned. This must be true today also.

Actually, when I mentioned that the militia units of the Revolutionary War furnished their own weapons, I was speaking historically. Obviously that was not the intent of the framers of the Constitution since they specifically specified that the militias were to be armed by the federal government, as well as organized and disciplined. And while training was to be prescribed by Congress, the responsibility for carrying out the training was the states.

Quote by: G. Adams A militia is a military unit, one that can and typically does act in support of state forces, but it is not under direct military control.

Again, you use a non-standard definition. A militia is a military unit of a state and it is subject to the call to active duty by Congress. That pretty much describes the National Guard.

Quote by: G. Adams That kind of military forces is a reservist army, not a militia.

Yes. Indeed. One definition of a militia, an official reserve army, composed of citizen soldiers.

Quote by: G. Adams We can only guess and put forth our opinions on the real meaning of "well-regulated", but I stand by mine.

Personally, I think that the Constitution specifies what was meant by well regulated, i.e., organized, armed and disciplined by the federal government, trained by the state according to Congress' prescription. I think that "well regulated" excludes organizations like the Michigan Militia from consideration as a militia according to the Constitution.

Quote by: G. Adams It is of course preferable for militias to have trained, many did have training of sorts back at the time of the revolutionary war, but it is in the nature of militias to be quickly raised and heavily green.

Historically, Revolutionary militias were not very good military units. They functioned better as irregulars. One example is that action of the Massachusetts Minute Men at Lexington and Concord. Rather than stand and fight like regular armies of the time, they gave ground, established a defensive position on high ground, channeled the opposing army to a single narrow front, and then harassed the retreating regulars from all sides with quick hit and run attacks.

All in all, if we are to establish what right the 2nd Amendment guarantees, then we must also understand what the framers of the Constitution meant by Militia.

[zynner]

Quote by: gallo All in all, if we are to establish what right the 2nd Amendment guarantees, then we must also understand what the framers of the Constitution meant by Militia.

I generally agree with your analysis. However, it is important to note that the Bill of Rights do not grant any rights to individuals. Rather, each amendment is a limitation on the powers of the federal government. The rights of the individual pre-existed any government (see Locke, etc.).

Regarding the 2nd Amendment, the federal government has no lawful power to pass any law that disallows individuals the right to keep an bear arms. While a state might organize, set rules of engagement, train, etc. the members of their milita, the right to bear arms itself is one that belongs to the people -- which is to say, individuals -- and not the state governments.

It does not matter that the state government employees have failed to or refused to do their duty vis-a-vis their militias. The fact remains: the right belongs to individuals, not the government.

Furthermore, none of this has anything to do with the right of gun ownership for self-defense, since the federal government has no lawful authority to restrict gun ownership for self-defense in any way.

~ zynner

[gallo]

Quote by: zynner People tend to look at the 2nd Amendment and ignore the 9th Amendment. That's a mistake.

That presumes that there is a direct connection.

Quote by: zynner The fundamental question is: Does an individual have a right to self-defense? Yes.

I think that the courts would agree with that.

Quote by: zynner Does that individual have a right to use tools in his attempt at self-defense? Yes.

As long as those tools are held and used in conformity with the laws of the federal, state, and local governments in which the citizen lives.

Quote by: zynner He therefore has a right to a firearm for use in self-defense.

Not a 2nd Amendment question. It is actually a 14th Amendment question, as to whether someone can be deprived by anyone of privileges and immunities without due process.

Quote by: zynner Does an individual have a right to eat? Yes.

Probably, but I have never heard of that being affirmed as a Constitutional right. Since it is not specifically mentioned, then if it is a right, it is retained by the people.

Quote by: zynner Does he have a right to shoot an animal for food (as thousands of men did, no doubt, in 1787)? Yes.

Just try shooting one of my cattle as see how that works out for you. In fact, if I shot you exercising your right, it is unlikely that I would be charged with a crime in my state/county.

Quote by: zynner He therefore has a right to own a firearm for survival, as well as self-defense.

Actually not true. While Congress may not infringe on the right of "the people", i.e., the states to bear arms, that doesn't seem to apply to the right of the states to limit your ownership of arms. For example, I believe that it is illegal to own a handgun in New York, whereas in my state I can carry a concealed weapon with proper licensing, and where I grew up it was legal to carry a non-concealed weapon.

Quote by: zynner The founders understood this fundamental principle.

I can't say if they understood it the way you seem to since they don't seem to have addressed that issue. And since they didn't, those questions are subject to legislation by states.

Quote by: zynner They also understood history. History is full of examples where a king or other government person claimed a right to rule over other men. They understood that would-be tyrants always demanded that the people disarm. They also understood that foreign invaders might be able to surprise attack somewhere before a military could be organized to defend the territory.

And history is full of cases of civilians falling before such invasion forces. Rarely were invading armies repelled except by regular military. Can you give an example of where it may have occurred? I recognize that it may be possible, I just don't know of any case off hand.

Quote by: zynner So, in writing the US Constitution, they defined the powers of the federal government and split up the powers of the federal government and the state governments.

You should have stopped when you got to the "and." They went farther in specifying that "...powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." If that's what you meant, then you are entirely correct.

Quote by: zynner The Bill of Rights were demanded by many people to amend that document because many people were suspicious of this new federal government. They wanted it made clear that the feds' powers were in fact limited. Each item is a limitation on the feds' powers. They knew from history that the nature of government is to abuse power.

I think that you are correct in this. The calls for a bill of rights came in the Constitutional Convention before it was finished. James Madison promised to make it the first priority if the Constitution should be ratified. He fulfilled that promise.

Quote by: zynner The 2nd Amendment was a limitation on the powers of the federal government, disallowing it to prohibit firearm ownership of militia members.

Well, yes. A limitation on the powers of the federal government (but not state governments). But it doesn't specify the right of ownership to individuals but to "the people."

Quote by: zynner This did not in any way kill off the fundamental right of self-defense or of taking actions to secure food for survival.

I don't think that anyone has claimed that it did.

Quote by: zynner The 9th Amendment is the most overlooked amendment but it is the most important to individual liberty.

For those who don't know it off the top of their head, the 9th Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Again, there is no mention of individual liberty but liberties of "the people," as in "We the people..."

Quote by: zynner I would argue that it is the most overlooked because it is the most important to individual liberty -- which means it is the most vile to would-be tyrants, whether they are elected to office or appointed to a bench (or live in bureaucrat land).

Except that you would have to show that the 9th Amendment is somehow a guarantee of individual liberty.

Quote by: zynner Every individual has a fundamental right to own the tools of self-defense and survival.

Except as limited by legitimate governmental powers.

Quote by: zynner These are fundamental rights that existed way before the Constitution.

I guess.

Quote by: zynner In addition, each individual also has a fundamental right to join a militia.

I think that you will find that you must meet certain qualifications of age, physical ability, mental ability, and criminal record, so I would think that it isn't a right.

Quote by: zynner The only restriction is that the federal government is expressly prohibited from prohibiting militia members from bearing arms (which is exactly what tyrants attempt to do).

Actually, the federal government is expressly required to provide for the organizing, arming, and discipline of the militia, as well as to prescribe training to be carried out by the states.

Quote by: zynner Any government that does not respect these basic principles is a government that does not respect liberty.

Except that I think that there may be some differing views about whether these are basic principles of government. I suspect that you might have a problem if you were attempting to exercise your right to hunt your food in the City of New York.

[gallo]