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re: 2nd amdt spinn off, "well regulated militia"
Posted on 5/30/14 at 3:23 pm to WildTchoupitoulas
Posted on 5/30/14 at 3:23 pm to WildTchoupitoulas
Not to mention, do people realize when the Bill of Rights was penned there was no continental army (was already disbanded) and the US Army didn't even exist yet? So people want to claim that the US wanted a strong federal army when the literature was written at a time when no such army even existed?
0
Posted on 5/30/14 at 3:27 pm to Ace Midnight
quote:
language in the dominant clause
Why have a subordinate clause at all? They don't put things in there arbitrarily.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."
is NOTHING like:
"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 the First, you didn't even quote the whole clause, it's: "Congress shall make no law respecting an establishment of religion". That is CRYSTAL clear. No law shall be made by Congress to establish one religion over another - or none at all.
They could have simply said: "The right of the people to keep and bear Arms, shall not be infringed." But they DIDN'T. Why not? Look at the simplicity of the Eighth: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
They knew how to write a straightforward Right. But in the case of the Second, they qualified it for some reason. And THEN they went ahead and started refining what it meant to be 'Militia' until, eventually, the National Guard took over the responsibilities of the militia.
quote:
propose a repeal. Let's see how far that gets them.
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.
Posted on 5/30/14 at 3:30 pm to HailHailtoMichigan!
quote:
Militia simply means armed populace
No, it doesn't. SEE: Militia Act of 1792.
The fact of the matter is that, Mel Gibson's The Patriot fantasy aside, the militias had a HORRIBLE track record during the war with England, and could barely be counted on to protect lines of supply.
Posted on 5/30/14 at 3:32 pm to WildTchoupitoulas
quote:
That is CRYSTAL clear. No law shall be made by Congress to establish one religion over another - or none at all.
Yeah, but did they solely mean to protect speech from Congressional action alone? Or did they intend a broader protection (as has been argued, and ultimately enacted with the Reconstruction amendments and subsequent jurisprudence)?
But, the other interpretation - which you suggest - is that the government is writing a protection into a bill of rights that protects the right of governmental entities to maintain bodies of armed men? That doesn't make any sense - particularly in the context between the aforementioned protection of speech/religion and a prohibition against quartering in people's homes.
"Oh - by the way, we maintain the right of the government to employ armed men - just so you know."
???
Posted on 5/30/14 at 3:34 pm to WildTchoupitoulas
Posted on 5/30/14 at 3:34 pm to WildTchoupitoulas
quote:
nor cruel and unusual punishments
Interpretation warps everything, doesn't it?
Is capital punishment "cruel and unusual"? Yet they mention capital offenses elsewhere in the text. And back then - they were talking about hanging and, maybe, shooting (coincidentally, you would need to bear arms for the latter
). Posted on 5/30/14 at 3:36 pm to TK421
quote:
TK421
Good stuff.
Posted on 5/30/14 at 3:44 pm to GhostofJackson
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.?
Posted on 5/30/14 at 3:46 pm to HailHailtoMichigan!
quote:
It wasn't until the slaves were freed that the first Gun Control laws were enacted by the KKK
Effectively, yes. The modern gun control movement in the U.S. (and pro-abortion, for that matter) is rooted in racist, anti-black motivations.
Posted on 5/30/14 at 3:50 pm to Ace Midnight
quote:
But, the other interpretation - which you suggest - is that the government is writing a protection into a bill of rights that protects the right of governmental entities to maintain bodies of armed men?
No, but that the right of the People to keep and bear arms is qualified by the purpose [to participate in] A well regulated Militia... And then they go on to pass the Militia Act of 1792 which defines the role of and participation in the militia.
It looks to me like they're putting something of a restriction on the right to bear arms.
So why doesn't the Second Amendment simply read: "The right of the people to keep and bear Arms, shall not be infringed."?
Posted on 5/30/14 at 3:52 pm to Ace Midnight
quote:
Is capital punishment "cruel and unusual"?
Of course not, it was very common back then.
Posted on 5/30/14 at 3:59 pm to WildTchoupitoulas
quote:
So why doesn't the Second Amendment simply read: "The right of the people to keep and bear Arms, shall not be infringed."
because at the time there was no standing army, and to call in troops you needed to have individuals with the right to bear arms. Free able bodied men between 18-45 were capable of being called in.
If there was no need for them to be in service, they still needed arms
Posted on 5/30/14 at 4:00 pm to HailHailtoMichigan!
The Federalist Number 28 - Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered (continued), by Alexander Hamilton.
For the tl;dr crowd it points out that an armed populace was not only viewed as necessary against foreign invasion but as a necessity to keep government powers in check as well. Of particular note to this topic:
That citizens should already have arms to rush to was a given so any discussion of the 2nd Amendment applying only to militia is incorrect.
quote:
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
For the tl;dr crowd it points out that an armed populace was not only viewed as necessary against foreign invasion but as a necessity to keep government powers in check as well. Of particular note to this topic:
quote:
The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo.
That citizens should already have arms to rush to was a given so any discussion of the 2nd Amendment applying only to militia is incorrect.
Posted on 5/30/14 at 4:00 pm to Mr.Perfect
quote:
quote:
why doesn't the Second Amendment simply read: "The right of the people to keep and bear Arms, shall not be infringed."
because at the time there was no standing army, and to call in troops you needed to have individuals with the right to bear arms. Free able bodied men between 18-45 were capable of being called in.
If there was no need for them to be in service, they still needed arms
Non sequitur.
Posted on 5/30/14 at 4:07 pm to Bard
quote:
That citizens should already have arms to rush to was a given
And would be given had the 2nd read: " the right of the people to keep and bear Arms, shall not be infringed."
But that's not all of what it says.
quote:
any discussion of the 2nd Amendment applying only to militia is incorrect.
Then why do they have any language AT ALL regarding the Militia in the 2A?
[Also note the Federalist Papers have no legal weight, and represent the views of but three Founders - hardly a consensus.]
Posted on 5/30/14 at 4:08 pm to WildTchoupitoulas
quote:
Non sequitur
Posted on 5/30/14 at 4:11 pm to Mr.Perfect
It means your comment doesn't follow.
Ie, your comment didn't actually address the point you thought you were addressing.
Ie, your comment didn't actually address the point you thought you were addressing.
Posted on 5/30/14 at 4:12 pm to WildTchoupitoulas
i think you are wrong.
militia is in there because the militia was the individuals within the states.
they needed arms in the event they were ever called
militia is in there because the militia was the individuals within the states.
they needed arms in the event they were ever called
Posted on 5/30/14 at 4:13 pm to WildTchoupitoulas
As Noah Webster put it in a pamphlet urging ratification of the Constitution, "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe."
It's also important to understand that the overriding purpose and objective of the Bill of Rights, in general, was to serve as "further guards for private rights." With that, the first ten Amendments to the Constitution were designed to be a series of "shall nots," telling the new national government, in no uncertain terms, where it could not tread.
With that in mind, postulating that the 2nd Amendment applied only to a militia that many today claim (erroneously) was to be under some form of government regulation, flies completely contrary to the very existence of the Bill of Rights.
It's also important to understand that the overriding purpose and objective of the Bill of Rights, in general, was to serve as "further guards for private rights." With that, the first ten Amendments to the Constitution were designed to be a series of "shall nots," telling the new national government, in no uncertain terms, where it could not tread.
With that in mind, postulating that the 2nd Amendment applied only to a militia that many today claim (erroneously) was to be under some form of government regulation, flies completely contrary to the very existence of the Bill of Rights.
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