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Message
re: Reason.com - What Is a 'Well Regulated Militia,' Anyway?
Posted on 6/13/22 at 1:26 pm to jawnybnsc
Posted on 6/13/22 at 1:26 pm to jawnybnsc
quote:You have a fundamental misunderstanding of the debate surrounding whether there was a need for a Bill of Rights in the US Constitution.
Some Founders didn't want a Bill of Rights at all, because they believed that there was no need to deliniate Natural Rights . . . them being NATURAL and all. Of course, among those Natural Rights is the right of self-defense. In short, The Founders almost couldn't conceive of anyone arguing against your right to keep and bear arms and almost stayed completely silent on the matter.
The fight regarding ratifying the Constitution was NOT about "natural rights." The fight was the need to convince the sovereign states that the new federal government was not going to usurp too much of their sovereignty. It was a Three Bears situation. The Brits had served the porridge too hot, and the Articles of Confederation had served it too cold. They were trying to find JUST the right way to serve the porridge.
As to the Bill of Rights, the debate was (a) the clear fact that the Constitution gave only a VERY limited amount of authority to the federal government and that there was no NEED to specify the powers that were NOT ceded to the federal government versus (b) folks who wanted to be double-sure about certain things NOT being authorized. (Disclosure: I agree with the Federalists on this point.)
quote:The entire Bill of Rights is just a belt-and-suspenders statement to satisfy the Anti-Federalists that the President cannot wear green shirts, despite the fact that the body of the Constitution authorized only red.
The debate, by analogy:
Text: "The President shall be authorized to wear only red shirts."
Anti-Federalists: "Wait, we should also specify that he is NOT authorized to wear green shirts."
Federalists: "No, that is not necessary because we were clear that he is authorized to wear only red ... but we can add it, if you insist and if you refuse to sign the thing otherwise."
This post was edited on 6/13/22 at 1:39 pm
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Posted on 6/13/22 at 1:27 pm to Bard
quote:You are slightly misconstruing the argument when it comes to the concept of the militia. At the time of the writing of the Constitution it was a day to day necessity that you be armed. To be unarmed was absolutely foolish. Hence, they understood that every citizen had a responsibility to be armed and serve in the common defense of the community as a whole (both in armed defense against an aggressor and also to serve in support of the local magistrate). They would not have separated the two because they were both integral in daily life within the colonies. We retain that same right to present day.
...firearm ownership was never dependent on the pre-existence of -nor membership in- a militia, rather the existence of their envisioned militia was dependent on the right of people to already own firearms.
Posted on 6/13/22 at 1:48 pm to Wolfhound45
quote:Far too broad an assertion. This would certainly have been true in western Georgia, Virginia or North Carolina (current Alabama/Mississippi, Kentucky and Tennessee), but certainly not in Boston, Philadelphia, Connecticut or Rhode Island ... where almost no one went armed on a daily basis.
You are slightly misconstruing the argument when it comes to the concept of the militia. At the time of the writing of the Constitution it was a day to day necessity that you be armed. To be unarmed was absolutely foolish.
The Founders UNDERSTOOD that each of the new sovereign States had different needs/concerns, and the 2nd Amendment (the entire Bill of Rights) was drafted to preclude the federal government from interfering with the States' responses to those needs/concerns.
This post was edited on 6/13/22 at 2:09 pm
Posted on 6/13/22 at 1:56 pm to Wolfhound45
quote:
What Is a 'Well Regulated Militia,' Anyway?
It does not matter!!!
I could say , in order for the grass to remain green, THE right TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED!
Posted on 6/13/22 at 1:59 pm to Guntoter1
quote:The rule against surplusage requires courts to give each word and clause of a statute operative effect, if possible. Stated another way, courts should not interpret any statutory provision in a way that would render it or another part of the statute inoperative or redundant. Accordingly, for example, when a court is faced with a statutory list of terms, it generally will read each term to convey some distinct meaning.
in order for the grass to remain green, THE right TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED!
As applied to the 2nd Amendment, this means that the provisions related to militia and to security MUST play some substantive role in the Amendment. Any reading that says they are irrelevant must be treated as being invalid.
This post was edited on 6/13/22 at 2:23 pm
Posted on 6/13/22 at 2:24 pm to AggieHank86
quote:
but certainly not in Boston, Philadelphia, Connecticut or Rhode Island ... where almost no one went armed on a daily basis.
Genuinely curious, when you say almost noone "went armed on a daily basis," do you mean that almost noone owned arms or that they didn't carry them around in public? I find it somewhat astonishing if the former were true. As mentioned prior, there were no established police departments at the time of the writing of the Bill of Rights. It seems to me that the need to be able to protect one's home/family would be universal back then and not specific to certain states/cities.
Posted on 6/13/22 at 2:38 pm to hojo
quote:I was responding to Wolf's specific assertion that everyone had "a day to day necessity that you be armed," so the latter.
Genuinely curious, when you say almost noone "went armed on a daily basis," do you mean that almost noone owned arms or that they didn't carry them around in public?
I have seen studies of probate proceedings in this timeframe, which examine how many probate inventories included firearms in the estate of the deceased. Depending upon wealth/class, I seem to recall that the rates seem to vary between about 60% and about 80%. I also seem to recall that the rates were much lower in the older, more-settled areas ("back east") as well.
quote:I think you are looking at 18th century life thru a 21st century lens. I don't think that the type of crime that you reference was nearly as prevalent back then, but I don't recall any specific data on that point.
As mentioned prior, there were no established police departments at the time of the writing of the Bill of Rights. It seems to me that the need to be able to protect one's home/family would be universal back then and not specific to certain states/cities.
Posted on 6/13/22 at 3:03 pm to AggieHank86
quote:
Depending upon wealth/class, I seem to recall that the rates seem to vary between about 60% and about 80%
quote:
I don't think that the type of crime that you reference was nearly as prevalent back then
So between 60-80% of homeowners owned guns (higher than today I believe), and there were no available police back then, and it is your belief that crimes that I was referencing (break-ins, armed robbery, home assault and rape, etc.) weren't nearly as prevalent back then? Interesting...
Posted on 6/13/22 at 3:09 pm to Wolfhound45
quote:
You are slightly misconstruing the argument when it comes to the concept of the militia.
How so?
When I've discussed 2A with anti folks, one of their attempted "go-to" arguments is that they believe the wording dictates that militia membership is meant to be a prerequisite for firearm ownership.
Posted on 6/13/22 at 3:14 pm to hojo
quote:It is about 40% ownership today.
So between 60-80% of homeowners owned guns (higher than today I believe), and there were no available police back then, and it is your belief that crimes that I was referencing (break-ins, armed robbery, home assault and rape, etc.) weren't nearly as prevalent back then? Interesting...
What is confusing? Most men in that era (even a shopkeeper) did belong to the militia, so he would have owned a rifle for his militia duties ... even if it came off the top shelf only on militia weekend. The same Philly shopkeeper today might well NOT own a rifle, because he is NOT a member of the militia.
As far as violent crime, I don't have hard data, either way, but smaller, close-knit communities just seem to have less violent crime.
If you have hard data to support the notion that armed robbery and home invasions were rampant in Colonial America, I would be glad to review it.
This post was edited on 6/13/22 at 3:28 pm
Posted on 6/13/22 at 3:16 pm to Bard
quote:This has been my experience as well.
When I've discussed 2A with anti folks, one of their attempted "go-to" arguments is that they believe the wording dictates that militia membership is meant to be a prerequisite for firearm ownership.
Well, among those who understand the ACTUAL issues. Most anti-gun folks don't understand the issue any better than "you don't need that thing."
Posted on 6/13/22 at 3:25 pm to AggieHank86
quote:
If you have hard data to support the notion that armed robbery and home invasions were rampant in Colonial America, I would be glad to review it.
Sorry, I think you misconstrued my point. I shifted, based on your comments, to make the observation that in an era of higher gun ownership and no police presence, there may have been less of those types of crimes than we have today-- an era where there is less private gun ownership and massive government provided armed protection. Just something I guess I never realized.
Posted on 6/13/22 at 3:28 pm to Bard
quote:They are inverting the operative clause.
When I've discussed 2A with anti folks, one of their attempted "go-to" arguments is that they believe the wording dictates that militia membership is meant to be a prerequisite for firearm ownership.
You do not have a militia because you have weapons. You have a weapon because all citizens are expected to contribute to the common defense (e.g. militia). The militia (common defense) already exists. The question is if it is well armed to perform its duties.
Posted on 6/13/22 at 4:30 pm to Wolfhound45
A militia in the colonial era was the people. Well regulated meant “I’m working order” in that time period.
Basically the 2nd amendment means that people have a right to own and bear arms because it’s necessary to have the ability to organize those of fighting shape with firearms to maintain a free society
Basically the 2nd amendment means that people have a right to own and bear arms because it’s necessary to have the ability to organize those of fighting shape with firearms to maintain a free society
Posted on 6/13/22 at 4:48 pm to Wolfhound45
Important to understand the writing of the Second Amendment in the context of the passage of the Bill of Rights as a limit on the new government created by the Constitution.
In Federalist 46, James Madison (writing as "Publius") argues that the federal government would have to remain in check vs the people because the people were armed. "Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger."
Moreover, Madison thought it important that the people remain armed: "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of."
He compared this to the monarchies of Europe, stating "Notwithstanding the military establishments in the several kingdoms of Europe, . . . , the governments are afraid to trust the people with arms."
Madison saw arms as an important limit on the size and scope of the federal government, such that the government would never do something so stupid as to restrict the ability of free men to have weapons. Not thing about hunting or self-defense here: the right of the people to be armed is linked directly to the limits of the federal government.
In opposition to the passage of the Constitution stood the Anti-Federalists, who didn't trust the new government to remain within the enumerated powers. The Bill of Rights is a response to the criticisms of the Anti-Federalists.
Thus, the "well-regulated" part of the Second Amendment refers not to the training of a militia, nor to the mustering of a militia. It's a statement that the Anti-Federalists wanted everyone to understand that arms in the hands of the people act as a check against the government, demanding that the new government continue to trust an armed populace.
It is impossible to read both the Second and Third Amendments and come to the conclusion that the writers of the Bill of Rights wanted to give a monopoly of force to either the federal government or the state governments. No, both were to be subservient to the people.
Our recent experience in Afghanistan should be a warning to everyone who says "the people will never be able to stand up to the federal government". Not so. Jefferson is right when he says governments exist under the consent of the governed. That consent is enforced by firepower in the hands of the population.
(BA - American History, LSU 1989)
In Federalist 46, James Madison (writing as "Publius") argues that the federal government would have to remain in check vs the people because the people were armed. "Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger."
Moreover, Madison thought it important that the people remain armed: "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of."
He compared this to the monarchies of Europe, stating "Notwithstanding the military establishments in the several kingdoms of Europe, . . . , the governments are afraid to trust the people with arms."
Madison saw arms as an important limit on the size and scope of the federal government, such that the government would never do something so stupid as to restrict the ability of free men to have weapons. Not thing about hunting or self-defense here: the right of the people to be armed is linked directly to the limits of the federal government.
In opposition to the passage of the Constitution stood the Anti-Federalists, who didn't trust the new government to remain within the enumerated powers. The Bill of Rights is a response to the criticisms of the Anti-Federalists.
Thus, the "well-regulated" part of the Second Amendment refers not to the training of a militia, nor to the mustering of a militia. It's a statement that the Anti-Federalists wanted everyone to understand that arms in the hands of the people act as a check against the government, demanding that the new government continue to trust an armed populace.
It is impossible to read both the Second and Third Amendments and come to the conclusion that the writers of the Bill of Rights wanted to give a monopoly of force to either the federal government or the state governments. No, both were to be subservient to the people.
Our recent experience in Afghanistan should be a warning to everyone who says "the people will never be able to stand up to the federal government". Not so. Jefferson is right when he says governments exist under the consent of the governed. That consent is enforced by firepower in the hands of the population.
(BA - American History, LSU 1989)
This post was edited on 6/13/22 at 8:51 pm
Posted on 6/13/22 at 5:59 pm to AggieHank86
quote:
All true, but not really relevant to interpreting the 2nd Amendment.
It actually is but that would be getting into collective vs. individual rights theories of iterpretation. Heller put the final nails in the coffin of the collective theories of interpretation but that doesn't seem to phase the ignorant and dishonest.
Posted on 6/13/22 at 5:59 pm to Thorny
quote:Thanks for adding this to the thread.
Thorny
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