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Message
re: 2nd amdt spinn off, "well regulated militia"
Posted on 5/30/14 at 5:31 pm to Ace Midnight
Posted on 5/30/14 at 5:31 pm to Ace Midnight
quote:
SFP Mark 2.0
Would never throw this on ANYone
0
Posted on 5/30/14 at 5:41 pm to WildTchoupitoulas
quote:
I don't think it would take that. All it would take would be for a case to go to the SCOTUS and have a strict interpretation of the Second vis-à-vis the several Militia Acts.
The Heller opinion does a great job at explaining the prevailing idea behind what the 2nd amendment meant in the early days of the country. LINK
quote:
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment , 73 N. Y. U. L. Rev. 793, 814–821 (1998).
quote:
. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body
quote:
We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, 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 United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”
quote:
We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary. “The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832).
The idea that the second amendment only applies to militia service is a relatively new idea.
This post was edited on 5/30/14 at 5:46 pm
Posted on 5/30/14 at 5:43 pm to WildTchoupitoulas
quote:
The right of the People to keep and bear Arms, shall not be infringed.
...but that's not what they wrote down. They put in a qualifying phrase. It shouldn't matter to the Federal government WHY the People maintain that right, simply that they do - UNQUALIFIED.
Also from {i]Heller[/i]
quote:
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), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution
Posted on 5/30/14 at 5:49 pm to TrueTiger
quote:
The "well regulated" part means drill or practice.
No, that is "disciplined", I believe "regulated" refers to arms and ammunition.
"Disciplined and regulated" would probably be today's, "Trained and equipped".
Posted on 5/30/14 at 5:52 pm to WildTchoupitoulas
quote:]
No, that is "disciplined", I believe "regulated" refers to arms and ammunition.
"Disciplined and regulated" would probably be today's, "Trained and equipped
You would be wrong
quote:
Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
This post was edited on 5/30/14 at 5:53 pm
Posted on 5/30/14 at 6:00 pm to MFn GIMP
quote:
The former does not limit the latter grammatically, but rather announces a purpose.
That's ambiguous.
Why would it announce a purpose, and why only one purpose? Why not, "The securing of wild game for the purposes of nutrition being necessary, the right of the People to keep and bear arms shall not be infringed."? It looks to me that once they state one purpose, it is descriptive, and serves but for that one purpose. Why are the purposes of other rights not described?
quote:
“The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832).
...negates your statement of:
quote:
The idea that the second amendment only applies to militia service is a relatively new idea.
Regardless, we have seen tha the intent of the Founders is largely irrelavent in interpreting the Constitution - and would have been FAR less relavent if they had left the prefatory "militia" clause out.
Posted on 5/30/14 at 6:08 pm to MFn GIMP
It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
And yet a mere 4 years later they passed:
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.
VI. And be it further enacted, That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders for the Commander in Chief of the State to the several corps; to attend all publick reviews, when the Commander in Chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution, and perfecting, the system of military discipline established by this Act; to furnish blank forms of different returns that may be required; and to explain the principles of which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: All which, the several officers of the division, brigades, regiments, and battalions are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith: From all which returns be shall make proper abstracts, and by the same annually before the Commander in Chief of the State.
And yet a mere 4 years later they passed:
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.
VI. And be it further enacted, That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders for the Commander in Chief of the State to the several corps; to attend all publick reviews, when the Commander in Chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution, and perfecting, the system of military discipline established by this Act; to furnish blank forms of different returns that may be required; and to explain the principles of which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: All which, the several officers of the division, brigades, regiments, and battalions are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith: From all which returns be shall make proper abstracts, and by the same annually before the Commander in Chief of the State.
Posted on 5/30/14 at 6:13 pm to WildTchoupitoulas
quote:
And yet a mere 4 years later they passed:
then why pass a subordinate act? why not propose a constitutional ammendment?
and if you want to play the "let's highlight what we want game".....
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
This post was edited on 5/30/14 at 6:14 pm
Posted on 5/30/14 at 6:14 pm to MFn GIMP
quote:
You would be wrong quote:Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
And yet, in the Act we see:
VI. And be it further enacted, That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders for the Commander in Chief of the State to the several corps; to attend all publick reviews, when the Commander in Chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution, and perfecting, the system of military discipline established by this Act; to furnish blank forms of different returns that may be required; and to explain the principles of which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: All which, the several officers of the division, brigades, regiments, and battalions are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith: From all which returns be shall make proper abstracts, and by the same annually before the Commander in Chief of the State.
VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline.
That whenever they refer to order and training, they use "discipline" and not "regulation".
I believe it was in the notes of the Constitutional Convention of 1787 where I read about "Regulated" in reference to the Militia, I'll try to find it.
Posted on 5/30/14 at 6:16 pm to WildTchoupitoulas
shall not be infringed.
Posted on 5/30/14 at 6:17 pm to Mr.Perfect
quote:
then why pass a subordinate act? why not propose a constitutional ammendment?
Because Article I, Section 8 grants the Congress the power to do so.
quote:
and if you want to play the "let's highlight what we want game".....
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
Suppose at some point in the future it is determined that a well regulated Militia is NOT necessary to the security of a free State...?
Posted on 5/30/14 at 6:19 pm to NC_Tigah
quote:
shall not be infringed
I'm sorry, but I don't feel secure in my Rights by hiding behind sentence fragments.
Posted on 5/30/14 at 6:20 pm to NC_Tigah
Wouldn't surprise me to see the revisionists' next iteration asserting the Founders were referring to the right to geaux sleeveless. They just misspelled the word bare.
This post was edited on 5/30/14 at 6:22 pm
Posted on 5/30/14 at 6:22 pm to NC_Tigah
quote:
Wouldn't surprise me to see the revisionists' next iteration asserting the Founders were referring to the right to geaux sleeveless. They just misspelled the word bare.
You're not helping, NC.
Posted on 5/30/14 at 6:23 pm to WildTchoupitoulas
quote:You are familiar enough with contracts to know the importance of "sentence fragments"
but I don't feel secure in my Rights by hiding behind sentence fragments
Posted on 5/30/14 at 6:24 pm to WildTchoupitoulas
quote:
You're not helping, NC.
Posted on 5/30/14 at 6:24 pm to WildTchoupitoulas
Ok. Well, the well establish standard to infringe on constitutional rights has been established. There is also a long line of cases interpreting the 2nd amendment. What's your argument in light of those rulings and the longstanding standard?
Posted on 5/30/14 at 6:25 pm to NC_Tigah
I'm afraid you're making a wildly invalid assumption here.
Posted on 5/30/14 at 6:29 pm to WildTchoupitoulas
quote:
I'm afraid you're making a wildly invalid assumption here.
I do not believe that for a second!
Posted on 5/30/14 at 6:30 pm to HailHailtoMichigan!
quote:
Simply put, Gun Control did not exist after the Founders signed off on the Constitution. It wasn't until the slaves were freed that the first Gun Control laws were enacted by the KKK.?
no guns for negros
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