What if the Second Amendment Were Repealed?

[Curious George]

Am I? The article is taken as a whole for inclusion into the National Guard, covering men of those restrictions and including women of voluntary enlistment.

Yes, you are mistaken. If you take note there is an “of” separating each part of the list. The modifying phrase beginning with “who” would only modify the object(s) of the previous preposition.

No, it really isn't. As "regulated" means - since the 15th Century - having organizing rules and regulations. It literally means "to control by rules". Being "unorganized" is the furthest thing from being regulated, much less well-regulated.

Hey you don’t have to believe me, it won’t change how you are wrong. You cannot construe two different words, written by different legislatures, in different time periods, in different documents as the same. In fact, such a reading would make the national guard unconstitutional.

 

[Subduction Zone]

What law?
I don't like red flag laws.

As states ban abortion, the Texas bounty law offers a way to survive legal challenges

 

[Shaul]

UGH again with the bloody Amendment Violations...

1. No it wouldn't. Absolutely nothing in the 2nd Amendment says anything about ammunition, nor the arms that are being "kept and bore" being functional. Especially in terms of private ownership. Technically private ownership isn't even covered as it's a "well-regulated militia" that's mentioned, not "Jim Bob with his shooty stick".
2. The topic here is about the 2nd Amendment being repealed. If the 2nd were to be repealed, "violations against the 2nd" would be null and void.
3. The question then was how to handle the excess of guns in private ownership. Well, stop selling ammo. Once it's all used up, enjoy your excessively large paperweight.

What you describe would clearly impact bearing arms. That would be an infringement. The second amendment prohibits infringing on bear arms, not just the ability to own them. You are misunderstanding.

 

[Shaul]

Given the premises, it would not give the Federal government the power to restrict the citizens from bearing arms. The Constitution, in Amendment X, states "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." Since there is no explicit power given to the Federal government to restrict guns they would not have any authority to do so, even if Amendment II was repealed. It could be argued that the individual states might, though. However, even the repeal of Amendment II would not eliminate the precedents that the right to bear arms was one of "the people" and not of the states.

Beyond these there is another argument. That is that Rights derive from the Creator, not from the Constitution. The Constitution is a social contract that codifies the rights, it doesn't establish them. The Body Politic, that is the people, have the final authority on what are their rights.

 

[We Never Know]

Suppose the Second Amendment were repealed tomorrow. The stars align and Congress, the SCOTUS, and the White House all agree that gun ownership shall no longer be a constitutional right.

What would then happen to the millions of guns currently in possession of American civilians? Would they be retroactively confiscated (which would probably be impossible to enforce reliably), or would they be grandfathered in?

In short, a war.

 

[Revoltingest]

LOL! No, which is probably a good thing for all mullet wearing citizens. Though the streets of my town would be safe from the wild sarcasm of Joe Dirt and his kind.

Anti-mullite!
As @Shadow Wolf knows, be cautious
when dissing someone's mullet.

 

[lewisnotmiller]

That view doesn't reflect historical use of the term,
"militia"...
Militia (United States) - Wikipedia
Excerpted...
Constitution and Bill of Rights (1787–1789)[edit]
The delegates of the Constitutional Convention (the founding fathers/framers of the United States Constitution) under Article 1; section 8, clauses 15 and 16 of the federal constitution, granted Congress the power to "provide for organizing, arming, and disciplining the Militia", as well as, and in distinction to, the power to raise an army and a navy. The US Congress is granted the power to use the militia of the United States for three specific missions, as described in Article 1, section 8, clause 15: "To provide for the calling of the militia to execute the laws of the Union, suppress insurrections, and repel invasions." The Militia Act of 1792[30] clarified whom the militia consists of:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-


OK.

The Militia Act of 1865 amended the qualification clause to include all males, regardless of race, between the ages of 18 and 54.
The Dick Act (1903) was the one which basically established the modern National Guard, which (at least initially...I think still?) technically makes individual guardsmen both state militia and federal (as a way of dealing with some of the constitutional and practical issues of federal vs state rights).

The Dick Act separated Organized militia from Reserve militia, with the reserve militia becoming all able-bodied males between 17 and 45.

That basically leaves the US definition of militia as follows, in a legal sense;

10 U.S. Code § 246 - Militia: composition and classes | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)

It's funny, though. If we're suggesting that the right to bear arms is tied in any way to militia standing, we run into an issue. Even allowing for the reserve militia to be counted in relation to the 2nd amendment (basically, ignoring the 'well regulated' part of the amendment), then we're left with no justification for allowing women or old folk to have the same rights towards arms as able-bodied men who are actually legally militia in American terms.

That's where I get a little confused by claims around 'militia'. Whilst I don't personally agree with interpretations that see the 2nd Amendment is intended to enshrine access to weapons for (basically) all, that is a more coherent and consistent interpretation than suggesting the militia referred to is equivalent to 'The American People'.
(Basically, just ignore 'militia' entirely)

 

[lewisnotmiller]

Anti-mullite!
As @Shadow Wolf knows, be cautious
when dissing someone's mullet.

Come to Australia and about 50% of the young men (teens) in my area are mullet wearers. They spend a lot more time and money on them than the dirty old mullets of my day (or Joe Dirt would) but still...
Australia is mullet central, and this time around it seems to cross socio-economic barriers.

 

[Revoltingest]

Whilst I don't personally agree with interpretations that see the 2nd Amendment is intended to enshrine access to weapons for (basically) all, that is a more coherent and consistent interpretation than suggesting the militia referred to is equivalent to 'The American People'.

While we can agree that gun possession is best
for both men & women, original intent could be
best seen as for men only. The Constitution
doesn't always mean what we want.
However, expansion of the 2nd Amendment under
the 9th to all genders would do the job because
expanding rights doesn't require formal amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

[lewisnotmiller]

While we can agree that gun possession is best
for both men & women, original intent could be
best seen as for men only. The Constitution
doesn't always mean what we want.
However, expansion of the 2nd Amendment under
the 9th to all genders would do the job because
expanding rights doesn't require formal amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Agreed (in a constitutional sense) that expanding rights beyond the group whose rights are enshrined works.

 

[The Kilted Heathen]

The Supreme Court in their 1939 decision were rather clear and if one looks at it without a strong anti-gun bias. the intent is clear.

And then it was overruled in another Supreme Court case in 2008. And that's somewhat the issue; the amendment is vague enough that it can be argued either way, and it has. The intent is far from clear. And because our culture is so over-concerned with Tradition and gun ownership, we're clinging to a 200 year old law that ill applies to a modern landscape that is radically different.

Can you find examples of "militias" from that time who's guns were provided by the government?

Where their guns were provided? No, I cannot, nor would it have been feasible at the time; our government had literally just started. But what was expected of the National Guard was to report for training and organization, and faced punitive action if their equipment was not up to regulations or they disobeyed command or orders. It wasn't just a bunch of Good Ol' Boys getting together at the lodge, "takin' it to tyrants" or what have you.

And your dating is slightly off on the language. This would be the language of the 1790's, after the Revolution, not before. That was when the Constitution and the Bill of Rights were written.

No, the language would not be off; the meaning of "militia" has not changed so drastically since it's implementation in the 15th Century, nor would it have radically changed in 10-20 years.

 

[The Kilted Heathen]

What you describe would clearly impact bearing arms. That would be an infringement. The second amendment prohibits infringing on bear arms, not just the ability to own them. You are misunderstanding.

You are misunderstanding the thread as a whole; What if the 2nd Amendment were repealed?

 

[Stevicus]

That's where I get a little confused by claims around 'militia'. Whilst I don't personally agree with interpretations that see the 2nd Amendment is intended to enshrine access to weapons for (basically) all, that is a more coherent and consistent interpretation than suggesting the militia referred to is equivalent to 'The American People'.
(Basically, just ignore 'militia' entirely)

I think the whole "militia" angle is a bit vague anyway. I don't think the Second Amendment was written to establish the government's right to set up and organize a militia. That right is already inherent. Any sovereign government can establish an armed force whether they have a constitution which allows them to or not. It doesn't appear logical that the Second Amendment would be written to establish the government's right to own weapons, since they already have that right. The amendment specifically mentions "the right of the people."

Maybe they should have put more thought into it. In a country where the founding principles were dictated by slaveowners who wanted to be free, things are bound to get a bit mucked up as we struggle to interpret what the founders' intent actually was. It seems that they left it vague, open to interpretation, and mutable so that future generations would have the freedom and ability to be able to figure things out for themselves. But if we can't figure it out now, it may not be because the amendment is flawed, but we are.

 

[Wandering Monk]

I'd quibble on them being seen as 'The Militia' in any singular sense, but perhaps you meant it as a collective term.
But whilst you're right about the formative years of the militia, there was no National Militia, nor indeed a nation to connect it to in 1636. You're talking more about the ability to draw a line from those early colonial militia through to the National Guard. Worth noting, then, that 1787 was a key year in that the anti-Federalists wanted to ensure militia control remained where it had been to that point...with the states. They also wanted to ensure there was no standing Army, somewhat as a direct consequence of the impact Cromwell's standing army had allowed in England (more the dictatorship part than the deposing of Charles, of course).

As a compromise position, and over time, various Militia Acts were passed, extending the ability of the President (for example) to directly access state militia for various purposes with less impediment, and to set guidelines over which citizens were mandated to join militia, and which were excused.

Who controlled the militia (plural), what expectations there were on the 'well-regulated' considerations, and whether these were in place of, or as a suppliment to a federal standing army were major discussion point, and points of controversy.

Having done some family history, it seems that militias were formed by the individual states. For instance, the 53rd Regiment of the Kentucky Militia.

 

[amorphous_constellation]

Any sovereign government can establish an armed force whether they have a constitution which allows them to or not. It doesn't appear logical that the Second Amendment would be written to establish the government's right to own weapons, since they already have that right.

And then, from there, if only a government can be armed, then the citizens of any nation would have to then put their sole assurance of security in that government to protect them. Does that always work? I am almost through this book about the Rwandan genocide. My takeaway from that, seems to be how shockingly quick a corrupt and butcherous internal militia can rise into action. I would have to read more on it to learn more, but it kind of seems to me that the poor souls weren't able to offer much resistance?

 

[Rival]

I'm not bothered about the Second Amendment, but I do love it when someone uses the conditional sentence properly.

 

[Stevicus]

And then, from there, if only a government can be armed, then the citizens of any nation would have to then put their sole assurance of security in that government to protect them. Does that always work? I am almost through this book about the Rwandan genocide. My takeaway from that, seems to be how shockingly quick a corrupt and butcherous internal militia can rise into action. I would have to read more on it to learn more, but it kind of seems to me that the poor souls weren't able to offer much resistance?

Yes, that's one of the arguments from the other side, since there's the perception that taking away weapons from honest, law-abiding citizens means that they would be unarmed and vulnerable against those who might do them harm. The police can't always protect them, and most of the time, they don't.

And if the government goes rogue, then a single firearms owner is not going to stand much of a chance against the entire apparatus of the state anyway. We've had rebellions in the past, such as the Whiskey Rebellion - and the Civil War, of course.

When it comes to situations like Rwanda, it seems there might have been bigger issues in play, although I'm not aware of what their laws might have been on private citizens owning weapons. But yes, it was a tragic, horrific atrocity which never should have happened. I don't recall the logistics of whether the Tutsis had any capability of establishing an armed defense. I've noticed that a lot of these civil wars in Africa may have been influenced or have indirect causes tracing back to the colonial era. Or it could still be due to active interference from outside powers. The U.S. is a big weapons exporter, but we're not the only ones. We send weapons to many countries so they can remain "free."

 

[lewisnotmiller]

I'm not bothered about the Second Amendment, but I do love it when someone uses the conditional sentence properly.

Heh...if grammar is your thing, check out the variation between the original handwritten amendment and the version ratified by some states.

Pesky commas appear and disappear, depending on which state ratification you're looking at.

 

[lewisnotmiller]

Having done some family history, it seems that militias were formed by the individual states. For instance, the 53rd Regiment of the Kentucky Militia.

For the most part.
Some militia forces were effectively organised independently of the state, and then presented themselves to the state as a group, but they ultimately them became part of the state militia.

All 50 states currently prohibit private paramilitary activity, interestingly.

 

[Curious George]

It's funny, though. If we're suggesting that the right to bear arms is tied in any way to militia standing, we run into an issue. Even allowing for the reserve militia to be counted in relation to the 2nd amendment (basically, ignoring the 'well regulated' part of the amendment), then we're left with no justification for allowing women or old folk to have the same rights towards arms as able-bodied men who are actually legally militia in American terms

while it is true that the militia was originally considered all white able bodied men, the right to keep and bear arms was noted as the people’s right. People as you know includes women.