For more on my take:

https://www.democraticunderground.com/126213972

The 2A is not about the militia according to Bernie, HRC, and President Obama. When Obama ran for office the Democratic Party platform explicitly stated that the 2A protects the individual right to own guns.

https://www.democraticunderground.com/126213972

a view in line with American history, both legally and culturally.

Unless you can show me all those laws that explicitly linked gun ownership to militia service. Can you show me a single case where someone had their guns taken away because they were not in a militia?

The simple fact is that in America, gun ownership has never been tied to militia service. Never.

Gun ownership has never been tied to organized militia service. In practice gun ownership has required that one: a) not be a prohibited person (per the FBI NICS) and b) be at least 18 years old and c) have a pulse.

Can you show that men over 45 ever had to surrender there weapons?

Can you show that women were ever barred from owning weapons?

Hence my point that militia service has always been irrelevant to gun ownership in America.

...I have no information on anyone being denied possession under any federal restriction other than being a prohibited person. My attempt was to amplify that in practice every adult is a de facto militia member which comports precisely with the language of the 2A. The fact that today there is a standing Army, Navy and Air Force is immaterial to any claim that we no longer have a militia.

I also consider that those who deliberately ignore the context of the 2A being part of the Bill of Rights have their heads in the sand.

It would also considerably hinder the collective effectiveness of the average rifle company in the service today.

and directly linking it to the right to keep and bear arms?

Remember that the founders made no provision for a standing army.

...at the time "well regulated" often meant effective. It would be impossible to have an effective militia that possessed no standard arms. I would also point out that the Founders made no federal provision for standing army nor did they prohibit the states from doing just that.

and each State has its National Guard, which eliminates the need for any unregulated militias.

The idea that a need leads to a right is not a principle that guided the Founders. Most basically the RKBA is accepted as an individual right by many leaders in this country including those Democrats identified elsewhere in this thread.

I point where this sub-thread started was questioning whether the right was or wasn't attached to militia membership. It's been pointed out that, in the letter of the law, militia membership has included men 17 to 45. In the hundred plus years were women have been able to vote, own property and fill any role in any service branch, I suggest that women are included now as well. As hack89 has pointed out there are no precedents for people having arms confiscated because they're aged out or due to being a woman.

In judicial operation in the US firearm ownership has been treated as an individual right.

Basic rights are not arrived at by convention or agreement of a majority. Neither can they be removed other than by due judicial process.

Well, he claimed to do so.

First, a right is right. Also, hidden? Who hid a right? A right which is in good company in an internationally studied Bill of Rights really can't be considered hidden.

Finally, I know he authored the opinion but as far as I have read the dissent by Justice Stevens does not contend that the RKBA isn't an individual right.

What is it you're implying?

https://judicature.duke.edu/articles/stevens-j-dissenting-the-legacy-of-heller/

I have no idea where you found your information about Justice Stevens, however, it is incorrect.

As I read this what I see is that Stevens acknowledges an individual RKBA but disagrees that the amendment is a general protection for it. How very states' rights of him.

I look at the Founders intent of a federal union among the states. The people had faith and loyalty for their respective states. They endured 15 plus years working and fighting to remain free of the type of government above their state governments which they found so oppressive. Their interest was to not create another institution that would grow to be as oppressive as the British government had become. The 18th century American people had state and local governments to mediate the disputes and crimes among the individual residents. An area of law that, with the exception of interstate commerce, the federal government had no nexus. Today, crimes among individuals are generally not pursued by the FBI or other federal law enforcement.

If you briefly word search the entire dissent of Justice Stevens, you will find no references to the petitioner, Heller. Nor is Heller referenced indirectly therein by the term petitioner. Stevens does not counter the court's decision that Heller did have a right to have his gun in his home in use as personal defense. As I read the dissent, its substance is an objection to finding an existing federal protection of an individual RKBA, a disparagement of the majority opinion in that majority's slight mention of reasonable laws and restrictions on the right but an acceptance by the minority, as Stevens was joined by the other minority justice's, of the right's existence. Arguing for a more comprehensive judicial explanation of reasonable restrictions of a right cannot logically comport with denying the right's existence.

Have a nice weekend.

From the same excerpt:

The meaning was considered settled.

Until Scalia pretended to find the hidden meaning by dismissing half of the Amendment.

Have a great day.

...the meaning of the RKBA or the meaning of the 2A?

Considering the Bill of Rights was added as an limit on government power and were explicitly understood to be individual rights, the proper focus should be the right to bear arms.

The fact that no state ever actually wrote any laws linking weapon ownership to militia service is a pretty clear indication that it was not their intention when they wrote the 2A.

guillaumeb wrote: Then what was the point of specifically referring to a "well-regulated militia", and directly linking it to the right to keep and bear arms?

The first half of the 2ndA -- the declaratory clause -- is an inactive, dependent statement of principle, a maxim of our republic. The wording of the amendment conforms with the varying proposals from the states which mirrored the provisions in their own constitutions. In their constitutions the states lumped themes with similar objects (intents) together in their bills of rights. Most of the states had a provision that had the intent of binding government powers of force. These provisions had three prongs:

a) The citizens retained the right to arms
b) standing armies in time of peace were dangerous to a free state and not to be maintained
c) the military should always be subordinate to the civil authority.

Here are some examples of state provisions that were in force through the Revolutionary War and the enactment of the federal Constitution and the Bill of Rights:

1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. . . .


1777 Vermont: That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

1780 Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

1790 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.

The separate prongs of these directives were never considered interdependent (that all must exist for any to be actionable, i.e., that if a national standing army does exist, the right to arms of the citizens of that state can be extinguished.

Actually, it is clear that the standing army declarative clauses can never actually be brought to fruition. They are merely declarations of inactive / legally inert principle. It can't possibly refer to state action because the states are forbidden to keep troops by the federal Constitution and it certainly can not be interpreted to prevent the federal government from exercising its supreme and preemptive Art I, § 8, cl's 11, 12, 13 & 14 powers to organize and direct national armed forces.

The declaration in the federal 2nd Amendment, "[a] well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment . . .

The declaratory clause of the 2nd Amendment only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).

If you really need the dependent declaratory clause to say something (or do something) it can only be read to be a declaration of why the AMENDMENT exists and as such it does not create, qualify, condition, modify or constrain the pre-existing right; it only states one particular political reason why the fully retained right is being forever shielded from government interference . . . To allow an organized militia to be formed calling the citizens to action.

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And what does "well-regulated" mean?

I addition, one responder wrote:

The point is that Scalia was determined to find what was never found prior to his claim that he someone knew the real intent.

Many folks here don't like the NRA either.

The target right being discussed is keep and bear arms. The 2A was ratified to prevent the folks who would be typically needed in militia service from being prohibited having the arms they would need for that service. Several State Constitutions specifically mention an RKBA and keeping arms is not required of an organized army as the army would be the arms keeper.

Well regulated means well equipped and trained.

The phrase “to bear arms” comes directly from the British Bill of Rights of 1689, which was the model for our BOR. Has nothing to do with military service, just language they were familiar with.

Well, we're about to lose Roe v. Wade due to the stupid anti-gun stance of the past 33 years, and it looks like democracy will die in.2024, latest.

Thanks for getting rid of bayonet mounting lugs on semi-automatic rifle, though. TOTALLY worth it.

Culture-war bullshit completely and totally backfired is into fucking BUSH and TRUMP.

Idiocy. And probably fatal. But "gunzzzzzzzz"!

You're like a pizza cutter: all edge and no point.

And among that minority, many support more regulations.

My father and uncles hunted with bolt action rifles, and were successful doing so, but many who claim to be hunters profess a need/want/desire for weapons with large magazines and "sexy" looks.

I will not profess an opinion about the psychology behind that, but we have all seen the effects of 400 million guns in this country.

LGTBQ
Blacks
Asians
Jews
Muslims
Hindus
Atheists
Military veterans
Union members

They want more regulations, huh? Then maybe they should try passing regulations that WORK, instead of stupid and useless "culture war" crap that appeals to ignorant snowflakes and motivates Republicans to vote. There's an idea, right?

And of course, your grandpa and great-uncle hunted with muzzle-loading rifles, and their fathers hunted with archery... and if you go back far enough they were all using the thighbone of an antelope to bash out the brains of zebras on the African savannah. Technology advances. Things change. Get over it.

In addition, people that abide by magazine limits for hunting don't want that limit imposed while not hunting. The three-round limit for migratory waterfowl is not something I want on my home-defense gun. Unreasonable, isn't it?

You need to reach back a little further in history. Our homicide rate was much higher from the late 60's to the early 90's, and there were far fewer guns per capita back in those days.

Not only were there fewer guns per capita, the guns that were around were far less likely to be magazine-fed semiautomatics! And the semi-automatic handguns were far less likely to have double-stack "high capacity" magazines or to use hollowpoint bullets.

As usual, the "good old days" were horseshit.

You want lower crime rates? We need progressive social and economic policies in place periods of time longer than an election cycle, and we can't get that if we keep voted out of political majorities because Democrats cling to stupid gun-control ideas!

In 2018 there were mass protests by gun owners in Virginia because of the gun-control agenda that state Democrats wanted to pass... including an "assault weapon" ban and magazine capacity limits. Fast forward 4 years, and a regressive idiot won in a state Biden comfortably won a year ago.

It. Fucking. Mattters!

...what determines a "hardcore gunner".

I get that the Wayne and Ted types fill the bill.

Last edited Fri Dec 10, 2021, 01:10 PM - Edit history (1)

Scalia overturned 400 years of precedent to get to an individual right.

Gorsuch, Kavanaugh, et.al overturned 50 years of precedent to kill Roe.

Looks like they're going to do it again ref. NYC gun laws.

Seems overturning decisions is a thing nowadays.

But forget all that for a moment. Read the Federalist Papers and glean from them what the founders really thought a militia was to be.

Once ignoring Stare Decisis becomes a regular occurrence we just might get back to what Madison really meant about a 'well regulated militia'. Or it could lead to a major restructuring of the Court. Or both.

Heller was actually 9-0 for the individual right; Breyer said he believed "the entire Court subscribes" to the individual right interpretation.

Justice Breyer says in his Heller dissent, that the individual right is represented in the Court's precedent and all three opinions issued that day in June 2008.

Breyer's dissent, which had the other 3 dissenting Justices concur, said (emphasis added):

"The Second Amendment says that: “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.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1)?The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting). . . . "

Justice Stevens said in the opening of his Heller dissent, (which the other three dissenting Justices concur), "[t]he question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. . . ."

Your "collective right" has been relegated to the dustbin of discarded anti-constitutional garbage.

So, the first thing you need to discard are the lies you have been told about what the Court said, and accept what the Court has actually said. Why haven't you done that in the last 13 years?

The Supreme Court has NEVER embraced any interpretation other than the 2nd Amendment recognizing and securing a pre-exsiting right, not granted, given, created or otherwise established by the 2nd Amendment thus in no manner dependent on the Constitution for its existence.

Supreme Court, 1876: "The right . . . that of 'bearing arms for a lawful purpose'* . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . ."

Supreme Court, 1886: "the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . "

Supreme Court, 2008: "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 . . . 1876 , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . .”​


* When the facts of the 1876 case are examined, the right specified, that of 'bearing arms for a lawful purpose' ​was the right of armed self defense, in public, exercised by two former slaves, (then citizens), against white rioters, in 1873 Louisiana, a state which had no militia, it being disbanded on orders of Congress -- see The Colfax Massacre

When the Supreme Court says that "neither is [the RKBA] in any manner dependent upon [the Constitution] for its existence", that ALSO means the RKBA can not be argued to be dependent upon a structure (the Art I, §8, cl's 15 & 16 organized militia) that is itself, ENTIRELY dependent upon the Constitution for its existence.

Arguing the right of the citizen to keep and bear arms is conditioned on, qualified by, or dependent upon a citizen's attachment to the organized militia, is a philosophical, logical, historical and legal impossibility.

The various "collective right" interpretations, (the "militia right" and "state's right" ) were creations of the lower federal courts, first inserted in the federal court system in 1942 to avoid enforcing SCOTUS in US v Miller (1939).

Yes, Heller did invalidate prior court opinion but not SCOTUS precedent; it was 66 years of lower federal court perversions of the Constitution which of course, SCOTUS had an obligation to strike down, not obey.

Those "collective right" lies died in 2008; you really should have weaned yourself off of them by now.



.

Far too many inconvenient facts in your post.

I think your conclusion has been proven correct!

AndyS wrote:But forget all that for a moment. Read the Federalist Papers and glean from them what the founders really thought a militia was to be.

Once ignoring Stare Decisis becomes a regular occurrence we just might get back to what Madison really meant about a 'well regulated militia'. Or it could lead to a major restructuring of the Court. Or both.

First thing to understand about the Federalist Papers and their explanations of militia, is they were explaining what the powers being granted to Congress in Art I, §8 were going to be . . . The discussions were not directed to what the retained right to arms of the people encompassed, people who were not under any impressment of (future) militia regulations, i.e., Militia Act of 1792. Of course explaining what the extent and ambit of powers are,informs us of what rights are . . . Everything not conferred to government is retained by the people.

None of what the Federalist Papers say helps the arguments of those who push the anti-individual-right and advocate for strict[er] gun restrictions.

On the specific point of what a "well regulated militia" is, that is more the work of Hamilton, not Madison and you should read Federalist 29 for that information.

Hamilton speaks directly on "well-regulated militia" and what that designation means and what the actual, insufferable repercussions would be of a government mandate that "all the militia" actually attain the level of expertness that would justify the awarding of the descriptor, "well regulated militia" (paragraph breaks added):

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.

To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States.

To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

From the start it is clear that "the project of disciplining" has more to do with -practice makes perfect- than -Congress shall have the power to regulate-. "Expertness in movements" is not something the militia can achieve by having a volume of regulations sent from Washington DC read to them.

The "yeomanry" was a class of citizen very familiar to those of British extraction. "Yeomanry" were the familiar English class of arms bearers and arms bearing was a "right" limited to those who were landholders. Hamilton's adding of, "and of the other classes of citizens" is a direct refutation and condemnation of the exclusions outlined in English common law and their bill of rights that the framers and Colonists held in contempt. That general inclusion, of every class of citizen, without regard for land ownership, (or religion or title of nobility), told the people that no exclusions or qualifications attached to a citizen's status were to be enacted or inferred by the proposed constitution on arms possession or use.

So, these people, presumably the farmers and carpenters and blacksmiths and butchers and bakers and candlestick makers who under law were obligated to enroll and present themselves with an arm provided by themselves, would be taken from their essential work for this intensive training. Hamilton recognizes such intensive training could only be achieved through an unacceptable mandate from government upon all, ("To oblige the great body" ).

And for this discussion, it is plainly clear that the term "well regulated," as used to describe militia, does not simply infer being constrained by legal act by a legislative body. Well regulated is merely an accolade; it describes a quality; ("the character of" ) the unit and the men. That description is earned. It is earned only after demonstrating expertness in military readiness and order ("acquire the degree of perfection" ). It is a description that is bestowed ("entitle them to" ), it certainly is not describing the legally constrained condition of simply being under regulations that is often claimed by those who deny the RKBA.

After exploring and explaining the futility of any requirement that the "whole nation" actually perform to he level of "well regulated" militia, Hamilton resigns himself to the only legitimate level of obligation the government could enforce upon the citizens . . . "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped" and perhaps have them turn out on occasion for inspection, to ensure arms were in good working order and of suitable type with military usefulness.

The biggest point to understand is, none of that, the organization and training and deployment of militia, has ANYTHING to do with the 2nd Amendment and the right of the people to keep and bear arms.

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