Second Amendment

[Curious George]

https://en.wikipedia.org/wiki/United_States_v._Miller

That was not reference to tommy guns, at least not according to the link. It was in reference to shotguns.

"United States v. Miller, 307 U.S. 174 (1939), was a Supreme Court case that involved a Second Amendment challenge to the National Firearms Act of 1934 (NFA). Miller is often cited in the ongoing American gun politics debate, as both sides claim that it supports their position."

AS BOTH SIDES CLAIM THAT IT SUPPORTS THEIR POSITION. Another vague verdict based on a vague amendment?

Sawed off shotguns and Tommy guns...I can double check the case, and you can edit the wiki if you want, but memory tells me Tommy guns as well.

 

[Curious George]

It comes down to many things, and many of those things, such as resources and training, are superior in the military. The French Revolution? The revolutionists, though many untrained, where still trained by people of the military who joined, organized militarily, and it was lead by generals such as Napoleon. The Viet Cong was using guerilla tactics, but they were a military, not a militia, and they had the advantage of fighting a poorly trained foreign military (thanks to the draft) that was in a very foreign land.

Then why was America not doing that well? The militias kept breaking the lines, failed to hold them, were largely poorly and under trained, and they couldn't even effectively retreat. Without the aid of the French military, America would have lost.

Without the British deciding it wasn't worth the trouble, they would have lost even with French aid. But that is neither here nor there. I was objecting to your assumption that the amendment wasn't put there with the idea that it would help against a hostile government.

 

[Curious George]

Are you referring to

Militia
2: the whole body of able-bodied male citizens declared by law as being subject to call to military service.​

?

If so, just what law declares able-bodied male citizens are subject to call to military service? And how would this cover 80 year-old, doddering, gun-toting rednecks who own AK-47s?

Moreover, you don't know that all gun owners are law abiding citizens, who respect the law and the constitution, and would answer the call. In fact, I would argue just the opposite. Not all gun owners are law abiding citizens, who respect the law and the constitution, and would answer the call.

Well, at the time the idea was that white men over the age of 21 should have guns, this was the militia. In order to ensure that we would have a well-regulated militia, you need enough people to draw upon. In order to do that, you do not infringe upon people's right to bear arms.

Now, don't misunderstand. The nation has changed. The reason for this was the nation did not have enough guns to go around. The idea here is that the government could use citizens with their own weapons. I imagine we have enough now. So, for well regulated militia purposes, the second amendment is certainly on shaky ground. But that is the purpose.

There were no militia specific regulations other that they answer to the commander in chief and follow orders when called upon.

But, while the wording may elaborate on the intent, you still must contend with the clause "the right of the people to keep and bear arms shall not be infringed." Either way we are left with the same conclusion, that the people specifically disallowed the government authority to infringe upon this right. So, as it sits, the government has no authority to do so, unless their reasoning can pass strict scrutiny. If the well regulated militia was a contingent then we would see language akin to that in the necessary and proper clause: language that such as "the right to keep and bear arms shall not be infringed" FOR "a well regulated militia." Clearly the forefathers new how to use the preposition "for," But they chose to specifically omit such language. They wanted an armed citizenry, they removed the ability of the government to disarm the people.

Now we can go into all sorts of discussion about what they contemplated, there is documentation. But, what we cannot deny is that they chose to specifically enumerate the right of the people to keep and bear arms. That is not something to take lightly.

And certainly not something to ignore just because a couple people question the validity of an armed citizenry and the militia today.

No, first we must constitutionally ammend this then we still must question whether there is an unenumerated right to bear arms as well.

I know guns scare people, and I know gun users have caused harm, but if there is truly a strong enough desire to grant authority to the government to disarm the people without having there reasoning subject to strict scrutiny, then there should be no problem getting the necessary legal changes to do so.

If however, a group of vocal anti-gun propagandists want to try to short cut the well reasoned laws, then they are going to have a little trouble doing so.

 

[Skwim]

In the USA it is called Selective Service

No it isn't. As explained in the Wikipedia article on the Selective Service:

"The Selective Service System is an independent agency of the United States government that maintains information on those potentially subject to military conscription."
​

Get it? It ONLY maintains information on those potentially subject to military conscription.

 

[freethinker44]

As it stands, it is the LAW, and thus a non-issue. If it becomes an issue at a later date, we'll cross that bridge when we get there. I don't concern myself with "what ifs."

You realize laws can change right? And since this is a law people want changed, it kind of makes it an issue. But that's fine by me, if you don't want to concern yourself with "what if's" the law is the law and it's currently on your side, then great. Don't worry about those "what if's", even as they're being used to argue against the LAW.

Let's be honest here though, falling back on "it's the law" is really just an "appeal to tradition" fallacy. We're not arguing what the law is, we're arguing what the law should be. So what the law currently says is irrelevant to the discussion.

 

[Neo Deist]

We're not arguing what the law is, we're arguing what the law should be.

You're right, the law should be mandatory gun ownership for any US citizen over the age of 21, that does not have a criminal conviction, and has been found to be mentally stable.

 

[Skwim]

Well, at the time the idea was that white men over the age of 21 should have guns, this was the militia. In order to ensure that we would have a well-regulated militia, you need enough people to draw upon. In order to do that, you do not infringe upon people's right to bear arms.

Now, don't misunderstand. The nation has changed. The reason for this was the nation did not have enough guns to go around. The idea here is that the government could use citizens with their own weapons. I imagine we have enough now. So, for well regulated militia purposes, the second amendment is certainly on shaky ground. But that is the purpose.

There were no militia specific regulations other that they answer to the commander in chief and follow orders when called upon.

I seriously doubt this. I'm fairly certain the states constructed specific regulations for regulating their militias.

But, while the wording may elaborate on the intent, you still must contend with the clause "the right of the people to keep and bear arms shall not be infringed."

Contend in what manner? I readily admit that the right of the people to keep and bear arms shall not be infringed in order to form a well regulated militia.

Either way we are left with the same conclusion, that the people specifically disallowed the government authority to infringe upon this right.

Yup.

If the well regulated militia was a contingent then we would see language akin to that in the necessary and proper clause: language that such as "the right to keep and bear arms shall not be infringed" FOR "a well regulated militia."

Just like the present wording in the Amendment. Consider: You say to your four-year old daughter,

"In order to go to the grocery store, so as to buy a loaf of bread, you may cross the street."

Think she should take this as permission to cross any street whenever she wished?

 

[Sees]

interesting article on the topic http://www.lectlaw.com/files/gun01.htm

 

[freethinker44]

You're right, the law should be mandatory gun ownership for any US citizen over the age of 21, that does not have a criminal conviction, and has been found to be mentally stable.

That's the spirit.

 

[esmith]

We didn't have MIGs or even an American president during the Revolutionary war.

made the assumption that you were talking about the Vietnam War......my mistake

 

[Shadow Wolf]

You're right, the law should be mandatory gun ownership for any US citizen over the age of 21, that does not have a criminal conviction, and has been found to be mentally stable.

Why? More guns is not going to fix our gun problem, and if someone doesn't want a gun they shouldn't be forced to have one.

 

[Curious George]

I seriously doubt this. I'm fairly certain the states constructed specific regulations for regulating their militias.

Contend in what manner? I readily admit that the right of the people to keep and bear arms shall not be infringed in order to form a well regulated militia.


Yup.

Just like the present wording in the Amendment. Consider: You say to your four-year old daughter,

"In order to go to the grocery store, so as to buy a loaf of bread, you may cross the street."

Think she should take this as permission to cross any street whenever she wished?

Except there is no prepositional phrase "in order to..." or "for ..." Yet we see the drafters knew and utilized these phrases, so that they did not in this instance is significant.

Your sentence would look like this

Purchasing a loaf of bread, being a necessary stop of a grocery outing, I will never prevent you from crossing the street.

that your daughter has now for years cooked bread at home, and you never stopped her from crossing the street throughout that time on her trips to the grocery indicates that it was not just for the bread that you would prevent her from crossing the street. But your analogy is off. For the militia still exists. The government does not have the authority to create or destroy the militia. And we are not talking about the several militias as in the several states, we are talking about the militia that is composed of citizens of the u.s.

The right of the people to keep and bear arms shall not be infringed. the militia was obviously motivation for such refusal of authority, but the authority was never taken up, and the declaration that such authority would not be taken up was documented in the constitution. To counter such a declaration, made for whatever motivation, one would need a constitutional amendment. Otherwise, we would see limiting language such as the prepositional phrases you would like to insert... Yet we don't see such phrases.

 

[Shadow Wolf]

I was objecting to your assumption that the amendment wasn't put there with the idea that it would help against a hostile government.

It wasn't. It was put there so cities wouldn't be entirely helpless against the various threats that could arise, especially considering the military probably wouldn't be able to show up in time to aid in the defense. To take care of our own government we were given things such as elections, staggered elections of those in power, impeachments, encouragement to periodically review and adjust the constitution as needed, and the ability to amend the constitution. The Second wasn't put there to fight against the state, but as a necessity of security for the state.
http://constitutioncenter.org/interactive-constitution/amendments/amendment-ii

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.


This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.


Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.


The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.


Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

 

[esmith]

It wasn't. It was put there so cities wouldn't be entirely helpless against the various threats that could arise, especially considering the military probably wouldn't be able to show up in time to aid in the defense. To take care of our own government we were given things such as elections, staggered elections of those in power, impeachments, encouragement to periodically review and adjust the constitution as needed, and the ability to amend the constitution. The Second wasn't put there to fight against the state, but as a necessity of security for the state.
http://constitutioncenter.org/interactive-constitution/amendments/amendment-ii

From the Idaho Constitution Article IX. This article is still in effect today.
SECTION 1. PERSONS SUBJECT TO MILITARY DUTY. All able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years, shall be enrolled in the militia, and perform such military duty as may be required by law; but no person having conscientious scruples against bearing arms, shall be compelled to perform such duty in time of peace. Every person claiming such exemption from service, shall, in lieu thereof, pay into the school fund of the county of which he may be a resident, an equivalent in money, the amount and manner of payment to be fixed by law.

SECTION 2. LEGISLATURE TO PROVIDE FOR ENROLMENT OF MILITIA. The legislature shall provide by law for the enrolment, equipment and discipline of the militia, to conform as nearly as practicable to the regulations for the government of the armies of the United States, and pass such laws to promote volunteer organizations as may afford them effectual encouragement.

SECTION 3. SELECTION AND COMMISSION OF OFFICERS. All militia officers shall be commissioned by the governor, the manner of their selection to be provided by law, and may hold their commissions for such period of time as the legislature may provide.

SECTION 4. PRESERVATION OF RECORDS, BANNERS, AND RELICS. All military records, banners, and relics of the state, except when in lawful use, shall be preserved in the office of the adjutant general as an enduring memorial of the patriotism and valor of the soldiers of Idaho; and it shall be the duty of the legislature to provide by law for the safekeeping of the same.

SECTION 5. NATIONAL AND STATE FLAGS ONLY TO BE CARRIED. All military organizations under the laws of this state shall carry no other device, banner or flag, than that of the United States or the state of Idaho.

SECTION 6. IMPORTATION OF ARMED FORCES PROHIBITED. No armed police force, or detective agency, or armed body of men, shall ever be brought into this state for the suppression of domestic violence except upon the application of the legislature, or the executive, when the legislature can not be convened.

 

[Skwim]

Purchasing a loaf of bread, being a necessary stop of a grocery outing, I will never prevent you from crossing the street.

Not even a nice try. Removing your unnecessary parenthetical element, you get something like "So as to purchase a loaf of bread, I will never prevent you from crossing the street."
Think she should take this as permission to cross any street whenever she wished?

How about a classroom of kids who are told:

"So as to attend the football game today, you may leave class a half hour early."
​

Think the kids should take this as meaning they can leave class a half hour early whenever they wish?

that your daughter has now for years cooked bread at home, and you never stopped her from crossing the street throughout that time on her trips to the grocery indicates that it was not just for the bread that you would prevent her from crossing the street.

Nice of you to add to the story, but in as much as it makes it a different story, it isn't worth bothering with.

For the militia still exists.

Really! There are well regulated militias manned by people using their own weapons? Where?

 

[Curious George]

It wasn't. It was put there so cities wouldn't be entirely helpless against the various threats that could arise, especially considering the military probably wouldn't be able to show up in time to aid in the defense. To take care of our own government we were given things such as elections, staggered elections of those in power, impeachments, encouragement to periodically review and adjust the constitution as needed, and the ability to amend the constitution. The Second wasn't put there to fight against the state, but as a necessity of security for the state.
http://constitutioncenter.org/interactive-constitution/amendments/amendment-ii

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. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787)

That foreign hostile government would attack also provided more reasoning...

So yes, the it is there very much for defense against hostile governments. In fact that it exists at all is a declaration that the government will not touch this right without reasoning that can pass strict scrutiny.

 

[Curious George]

Not even a nice try. Removing your unnecessary parenthetical element, you get something like "So as to purchase a loaf of bread, I will never prevent you from crossing the street."
Think she should take this as permission to cross any street whenever she wished?

How about a classroom of kids who are told:

"So as to attend the football game today, you may leave class a half hour early."
​

Think the kids should take this as meaning they can leave class a half hour early whenever they wish?


Nice of you to add to the story, but in as much as it makes it a different story, it isn't worth bothering with.

Really! There are well regulated militias manned by people using their own weapons? Where?

Now are inserting "so as to" where it does not exist. I know they are small words, but those small words have meaning. Meaning which was specifically left out of the second amendment.

 

[Skwim]

Now are inserting "so as to" where it does not exist. I know they are small words, but those small words have meaning. Meaning which was specifically left out of the second amendment.

I did say "something like," because what followed as an attempt to make it read better, but go ahead and rephrase it yourself, just make sure it retains the same connotation:

Remove the nonessential parenthetical element, "being a necessary stop of a grocery outing," from "Purchasing a loaf of bread, being a necessary stop of a grocery outing, I will never prevent you from crossing the street," and make it read better. Or are you content to let it read

"Purchasing a loaf of bread, I will never prevent you from crossing the street,"
​

?

 

[Curious George]

I did say "something like," because what followed as an attempt to make it read better, but go ahead and rephrase it yourself, just make sure it retains the same connotation:

Remove the nonessential parenthetical element, "being a necessary stop of a grocery outing," from "Purchasing a loaf of bread, being a necessary stop of a grocery outing, I will never prevent you from crossing the street," and make it read better. Or are you content to let it read

"Purchasing a loaf of bread, I will never prevent you from crossing the street,"
​

?

Yes, because that is how nonsensical it would be if one took out the modifying gerund: "being necessary for.." of the second amendment. I do not disagree with you that the nominative absolute ( the noun and the gerund together) clearly indicates a relationship between the two, I disagree with the notion that this is limiting. If I say, "while I slept, they ate" the absolute does not limit the main clause. It modifies it by relating the main clause to something else.

You however are rewriting the sentence so it has a dangling modifier instead of an absolute.

 

[suncowiam]

Sawed off shotguns and Tommy guns...I can double check the case, and you can edit the wiki if you want, but memory tells me Tommy guns as well.

I don't need to edit the wiki. I only went searching for more info based on your comments.

But it did say some automatic weapons which I missed in my initial assessment. You could be correct.