A well regulated Militia,

[MannyGoldstein]

being necessary to the security of a free State, etc.

Meh... I guess we're all just an Army of One these days.

Go guns!

[hrmjustin]

1. Too many guns in this nation.

[Nuclear Unicorn]

2. As a matter of fact -- Yes.

Well, adult males and females in the National Guard, anyway --

(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.

http://www.law.cornell.edu/uscode/text/10/311?qt-us_code_tabs=1#qt-us_code_tabs

[Hoyt]

3. When are all the old gun fanciers gonna turn in their gunz?

And most ladies are out of luck, under that definition.

Truth of matter is gun fanciers need to learn to read.

[Nuclear Unicorn]

4. "When are all the old gun fanciers gonna turn in their gunz?"

That honestly makes no sense to me. I tried grammatically shuffling it a few dozen ways and it still doesn't

Are you suggesting men over the age of 45 are not allowed to own guns? If so you would be mistaken. Seeing as the militia supplies its own firearms there has to be a ready supply. In order for there to be a ready supply "the right of THE PEOPLE to keep and bear arms shall not be infringed."

Further constitutional citations would soon make it apparent that the people cannot be divided by age or other class. And now that the prohibition to women serving in combat military occupations has been lifted I would expect that the law will be amended to encompass all women 17 to 45.

[Hoyt]

5. If you are using your definition of militia, at 46 you are out and women

are not in militia unless in National Guard.

[Nuclear Unicorn]

9. First, it's not MY definition; it's federal law

Second, apparently that is what you meant and I explained why your selective reading does not hold.

The militia has always been all males ~17 to 45 and at no point in history has the accessibility to guns been denied to men 46 and older or women. Again, as the militia arms itself it must have a ready supply and a ready supply means ready access for purchase and trade.

[The Straight Story]

10. I seem to recall someone named

Annie Oakley. She hunted (with a gun) to help feed her family. She was also known of course for her sharp shooting skills.

She couldn't be in a militia. But she could own a gun. Then there was Ann Hennis Trotter Bailey.

Looking around one finds:
http://www.womenandguns.vcu.edu/

[Nuclear Unicorn]

12. Nice contribution; not just for the current debate but female empowerment in general. TY n/t

[unblock]

33. interesting, so congress can change the meaning of the constitutional term "militia" at any time?

citing u.s. code is interesting and relevant but not a compelling argument regarding constitutional interpretation.

obviously, congress can't make an end-run around the 13th amendment by defining "slavery" in such a way as to make it effectively meaningless, for instance.

[Nuclear Unicorn]

35. Perhaps.

They can obviously define who can be in the militia, i.e. age, gender, etc. I think they would be hard-pressed to argue it should be so narrowly defined as to abolish it and I would imagine an outright effort to abolish all militia would raise too many suspicions. I doubt many governors would tolerate it, especially those with state guards.

[derby378]

37. I thought DC V. HELLER struck down the National Guard argument

With a citizen militia, you can still define criteria for exclusion from the militia. If you use drugs. If you ever beat your spouse or partner. If you're mentally ill. If you're a convicted felon. We use and fine-tune this criteria all the time.

[Nuclear Unicorn]

39. It did. But some still continue to insist militia-or-nothing.

With a citizen militia, you can still define criteria for exclusion from the militia. If you use drugs. If you ever beat your spouse or partner. If you're mentally ill. If you're a convicted felon. We use and fine-tune this criteria all the time.

Agreed,

[former9thward]

51. Most of the states have a militia requirement written into their Constitutions.

So even if Congress somehow eliminated the federal militia law the state laws would still be effective.

[unblock]

52. neither state nor federal law trumps the constitution.

so even if both the federal government and the state of massachussets decided to define the militia narrowly as members of the active national guard only; or for the federal government and the state of wyoming to define the militia broadly so as to include everyone, even fetuses; the supreme court would say, well, that's all well and good for you to use that the term "militia" in that way as it relates to federal and state law, respectively, but the term "militia" as it relates to the 2nd amendment is for us to determine, thank you very much.

[former9thward]

56. The Constitution does not outlaw militias.

So the Constitution trumps everything argument goes nowhere.

[unblock]

57. really not understanding that, it seems quite circular.

how is the constitutional interpretation of the word "militia" irrelevant, or somehow superseded by u.s. code and/or state law?

[Nuclear Unicorn]

59. Not to speak for Former9th but --

The federal constitution does specifically forbid states from possessing their own navies. Since the federal constitution does not forbid state militias and the states do have militais in-grained in their own constitutions repealing the federal militia law would do nothing on the state level.

I would further imagine it would inhibit the President from federalizing the state militias, if required. So perhaps that is why the statute remains.

[unblock]

62. all i'm trying to say is:

the definition of "militia" in the u.s. code sheds little light on how to interpret the term "militia" in the u.s. constitution.

they might as well have used a different term.

[Nuclear Unicorn]

64. I can see your point.

But those who would make the argument that only those belonging to a militia tend to argue that not knowing Federal law defines militia in a way that supports their intentions. The closest I've seen to a rebuttal of the point is that our current militarized police forces are the militia thus obviating the allowance for a civil militia. I found the premise -- "interesting."

[doc03]

6. "Well regulated" Doesn't that mean there can be regulations and limits put on

"arms" or the "militia" the constitution doesn't even specify firearms or any type of firearm. At the time the Constitution was written a single shot flintlock was the state of the art in firearms. Do really believe you are going to stand up to our military with your rifle, get real!

[davidn3600]

7. You are right...the 2nd amendment needs updating...

...but good luck getting an amendment passed.

[Eleanors38]

25. The Constitution DOES mention "press," and yet here we are...nt

[madville]

42. I believe "well regulated" at the time

I believe "well regulated" at the time and in the second amendment context was more synonymous with "well equipped". Since it would be necessary for militia members to furnish their own firearms it would be essential that "the people" own the firearms they would bring with them when forming a militia. At the time it makes perfect sense for the people to be guaranteed the right to own firearms if/when they were summoned to duty in the militia.

[Eleanors38]

8. And the RKBA is recognized as that of "the people,"

not some entity like the militia. The 2nd had both an "operative" clause (the peoples RKBA...), and a "justification" clause (well-regulated militia..). Several state constitutions use the same grammar to "justify" such rights as due process, assembly, freedom of the press, etc. without conditioning, modifying, or restricting the rights recognized in the operative clause.

Common practice when the documents were written.

[CTyankee]

11. I think you should read Joe Nocera's OpEd in the NYT today. He pushes back on

what you have stated as a "fact."

http://www.nytimes.com/2014/05/27/opinion/nocera-right-to-bear-arms-means-this.html?ref=opinion

Interesting historical insight about citizen involvement with the militias. Rather than a right, it was an obligation, so the focus on the 2nd A as a matter of "rights" becomes another thing entirely...here is another take on what you call a "common practice."

It would be interesting to have Nocera's piece posted in both gun fora and see what ensues.

[Nuclear Unicorn]

16. "Rather than a right, it was an obligation...another thing entirely"

The op-ed relies on a peculiar method. It acknowledges the clause, "the right of the people to keep and bear arms" but then breezes past without explaining why "the right" is not really a right. He proclaims the concept is wrong and then runs away.

Instead the op-ed focuses on argumentum ad anno (arguing to the year/time). Yes, we have a professional army. No, we do not currently rely on citizen militias. However, unorganized militias do figure into federal law and the writers cannot speak to all time nor the desirability of the current system. We, as a nation, may yet come to move away from a professional standing army, either from expense or some other practical matter. We may decide we want to adopt a system such as the one employed in Switzerland.

The article, and presumably the book it cites, refuse to acknowledge the fact that for a militia to supply itself, as it did, then all citizens needed a readily available commercial trade with its manufacturing, distribution and retailing infrastructure. If the militia were to be provided for the citizenry as a whole had to have a market to support. A piecemeal, single purpose system that supplied the militia exclusively would not suffice. This is born out by the fact that laws did not forbid non-militia from the purchasing arms. Hence, "the RIGHT of the PEOPLE to keep and bear arms shall not be infringed."

But that's the part that keep being ignored.

[Eleanors38]

18. I've read this and similar essays, both in DU & elsewhere.

I don't know how "settled" the law was since through much of the first 2 centuries since the revolution there have been fewer than than a dozen SCOTUS cases that even mentioned 2A.

He didn't mention the Miller case in his militia clause argument, but the ban on short-barreled shotguns came as a result of government counsel's argument, and not of defendant Miller: He was dead and his lawyer a no-show when the case was heard.

Not much argument about the militia service requirement he references, don't know what is "surprising" there. But that does not impinge on the RKBA being retained by "the people" unless, as he seems to imply once again, that the "justification" clause conditions the "operative" clause. It does not.

I can't link on this hand-held, but Eugene Volokh in his essay "The Common Place Second Amendment" (google this) makes a sound argument that "justification" clauses did not impinge in "operative" clauses, nor cause a right to "expire" once the justification (militia) no longer exists; it is merely a justification.

Tellingly, Volokh cites several state constitutions which use the same justification-operative language structure when listing Other rights. Who would argue that such justifications condition civil rights in those states? Nocera's views on 2A are outliers when compared with the bulk of scholarly work on 2A.

http://www2.law.ucla.ed

[CTyankee]

43. Well, to me it's another way of looking at the same language that you look at.

But that's why we have a Supreme Court, to interpret constitutionality. My ultimate point is that if we elect another President for 8 years in 2016, there's a good chance that we'll get to appoint one or more SCOTUS justices. If that is the case, he or she will appoint their replacements...and so far, of the last two Dem presidents who got to nominate SC justices, they all do not agree with the interpretation you lay out here, the "bulk of scholarly work on 2A" notwithstanding.

[Laelth]

13. Gun control is a losing issue for Democrats.

Gun control might prevent some tragedies (but very few, I would argue). At the same time, it will drive a lot of men (and the women who love them) into the waiting arms of the NRA and the GOP.

It's just not worth it in this political climate. The Democratic Party is already perceived as "feminine" (aligned with feminists and GLBT advocates) while the Republican Party is perceived as masculine (aligned with the masculinist NRA and patriarchal fundamentalist Christianity). If we want more men (and the women who love them) to vote for Democrats, we need to abandon gun control. It's a "boys and their toys" issue. Don't separate the two unless you are prepared to experience the backlash that will result.

My goal is to get a lot of people to stop voting against their best interests. Gun control (as a party platform plank) hurts Democrats in large swaths of the country. We need to get those people to vote for Democrats, and advocating gun control pushes those same people into the waiting arms of the Republican-aligned NRA.

-Laelth

[Eleanors38]

23. I agree with the thrust of your argument, but am a

little leery of the "feminine-masculist" dichotemy, as it is posed using gun issues. The precipitous increase in armed women, IMO, is breaking down that stark stereotype. Otherwise, I'm on board with your main objective.

[Laelth]

26. Thanks for the thoughtful response.

The whole thrust of my latest thread, here, is that the feminine/masculine dichotomy of which you are leery is the central and controlling issue that best explains politics both here in the United States, in the Middle East, and in other Western countries (where we are now seeing the re-emergence of fascism). I understand and appreciate your caution, but I think it all comes down to gender and the massive and unprecedented changes that the West has undergone over the past hundred years in terms of gender power relations.

I have no better explanation for why so many people vote against their best interests.



-Laelth

[Eleanors38]

29. I read your other post as well & need to think about some

more. I have a simultaneous attraction to and a cautiousness of theories-of-everything. But you have a serene ability to go about, short-circuiting everyone's billboard, and that will always get my attention!

[Laelth]

31. Blush.

You are very kind. Thanks.



-Laelth

[maggiesfarmer]

48. agree with Eleanor -- you raise some good points and articulate them well

[Laelth]

49. Thank you. n/t

-Laelth

[DonCoquixote]

55. OK, Erase Gun Control

and write in "slavery",
Your message would result in the exact same meaning, right down to the "boys versus their toys" line.

[Laelth]

61. Gun control may be a moral and ethical issue.

But I don't think our lack of "more stringent" gun control laws is as morally and ethically repulsive as slavery.

A difference of several degrees, I think.

-Laelth

[Laelth]

60. Just take a look at this picture:

The Republicans are portrayed doing "masculine" things, and the Democrat is portrayed doing something ... well ... not so masculine (though quite useful).

-Laelth

[hack89]

14. Both the president and the Democratic party platform say the 2A protects an individual right

the matter is not as clear cut as you perhaps think it is.

[Tierra_y_Libertad]

15. "Prussia is not a state that has an army, but an army that has a state." Mirabeau

[Nuclear Unicorn]

17. A s good a reason to adopt the Swiss model as any.

Assuming the MIC wouldn't throw a fit.

[Tierra_y_Libertad]

20. Or, disarm them all.

Which would my preference.

[Nuclear Unicorn]

21. How?

[Tierra_y_Libertad]

36. Make it a felony to possess a firearm.

[Nuclear Unicorn]

40. And when that fails spectacularly?

[Tierra_y_Libertad]

45. The same as always. *Shrug* and be amazed at what people will accept.

Welll, American people. Others aren't that dumb or passive.

[frankieallen]

19. "the right of THE PEOPLE to keep and bear arms shall not be infringed."

that line seems to say it all.
I am in full support of background checks, and waiting periods, before you just hand over a gun to an angry person or a convicted felon, but that is up to the states to make those rules.
If you don't agree with the laws in your state, you can to move to another one, that's the great thing about living here.
I also support hefty jail sentences for anyone in possession of a gun who isn't properly licensed. If they let out all the marijuana related prisoners, we should have plenty of room for the people that actually belong there.
I think trying to get the federal government to outlaw guns is a losing battle, not going to happen, because we have that pesky line in the constitution "the right of THE PEOPLE to keep and bear arms shall not be infringed."
My two cents.

[napkinz]

22. Just like the NRA, you leave out the "well-regulated militia" part

nice try ... but fail

[frankieallen]

30. I don't agree.....

Let's start with what you believe to be the definition of a "well-regulated mailitia". I am guessing, but i assume your example of that would be the National Guard, which by the way was not in existence when the amendment was written.
Right off the bat I would ask, why does the government need an amendment to the constitution to guarantee itself the right to allow a soldier to carry arms? Doesn't make sense to me.
Every amendment in the bill of rights is there to protect the rights of the people, all people, from an overbearing government. So why should the second amendment be any different that the rest? I don't believe it is.

[napkinz]

41. the fact that you would exclude/delete HALF of the Second Amendment told me all I need to know

That's what the NRA does ... at their headquarters you will see inscribed only PART of the Second Amendment.

A well regulated militia, being necessary to the security of a free State is replaced with an an ellipsis. (Actually, not even a full ellipsis ... just two dots.)

[CTyankee]

44. Then why did they throw in that part about the militia? There is no such language in

the other 9 amendment of the BoR...Methinks it speaks to the founders desire to avoid a standing army, which they saw through the lens of the 18th century. Well, we got the standing army anyway. Good thing, too, or otherwise our goose would have been cooked, not to mention the west not won...

[frankieallen]

50. I don't know why they put it in there, too bad we can't ask them.

This is the basis of all the debate, right? All we know is what they wrote, but they were quite brilliant in their wording, leaving things open for interpretation. These posts are my interpretation, right or wrong that's how I see it.
I certainly don't think they wanted to avoid having standing army though, never heard that one before.
It's called the bill of rights, I don't think they intended to guarantee all citizens of the United States 9 rights, and one right only if you are in the US army, or National Guard.
Again, just doesn't make sense to me.

[CTyankee]

53. Yes, it is called the Bill or Rights but here I can understand why they thought

a standing army could be a threat to individual rights.So take the standing army out of the equation. Now you have the people defending their rights with militias. I think that's where the militia language comes in.

[WinkyDink]

32. It's only a part of the "well-regulated militia" MAIN POINT.

[unblock]

54. nothing in the constitution stands by itself.

constitutional interpretation is heavily about weighing the competing clauses in the constitution.

the first amendment preserves free speech, yet speech is limited in many circumstances. one classic is yelling "fire" in a crowed theater (or course they always forget to mention "falsely&quot . it may simply be the "promote the general welfare" part of the preamble that gives the government the right to prohibit this notwithstanding the first amendment.

and it also prohibits establishment of religion, yet belief in god is enshrined on our currency. what competing clause enables this i have no idea, but i'm consistently told my concerns here are laughably trivial.


in any event, yes, of course, the second amendment talks the right of the "people", but reasonable interpretation of the second amendment cannot be done without paying close attention to the rest of the constitution, and in particular, the "well-regulated militia" part of the same amendment.

[Skidmore]

24. When every person is an "army of one" you no longer have a civilized society.

[Eleanors38]

28. I don't know, the Swiss seem pretty civilized.

[WinkyDink]

34. There's a bit more involved: their militia requirements; their homogeneity; their history of war-

time neutrality (no chants of "Schweiz! Schweiz! Schweiz!&quot ; and their basic "European-ness," which does not include our "Wild West" national psyche.

http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland

[CTyankee]

46. they put more restrictions on guns than you would probably accept...

I read that link to gun politics in Switzerland and it listed some interesting restrictions...maybe they were thinking about that "civilized" piece...

[Jenoch]

27. When has it ever been illegal for a

private citizen to own guns in this country?

(Don't give me D.C. Or Chicago, I am referencing the nation.)

[Wolf Frankula]

38. A Well Regulated Militia

This is a well regulated Militia

This is not a well regulated Militia

This was a well regulated Militia

This is not a well regulated Militia

This was a well regulated Militia .

This is not a well regulated Militia

Any Questions?

Wolf

[Rex]

47. Hi! I carry a gun around in public, but not because I constantly question my manhood.

True, I hear comments like "oh wow look how big it is" and "ohhh...what a cold hard barrel", but those people are just insecure. I on the other hand, am proud to be able to show it off on the outside...er...a proud second amendment patriot!

[LiberalEsto]

58. I think well-regulated militias should drink prune juice twice a day

That'll regulate 'em.

[joeybee12]

63. http://en.wikipedia.org/wiki/Militia_Acts_of_1792

Clearly the intent was for guns for a militia, not individuals, gun nuts be damned.

[napkinz]

65. ...