Just plugging in what the militia is defined to be, and was at the time the Constitution was written. 
Posted on 12/17/2007 12:24:44 PM PST by Hazcat
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.
The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”
Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “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.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.
(Excerpt) Read more at nytimes.com ...
That's exactly what the rather awkwardly worded second amendment means. But the right still belongs to the people, not the militia. The right of the people is protected so that a well regulated militia can always be formed. To protect the state, or to overthrow it, as necessary.
Idiot. It gives "a" reason for NOT infringing upon the right of the people (you and me) to keep and bear arms. The founders knew the difference between a standing army, select militia, the militia and the people. The right is not a privilege of a collective (subset of specially blessed government operatives). No, it is a God-given right which all people share.
Molon Labe.
Just plugging in what the militia is defined to be, and was at the time the Constitution was written.
"For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require."
The basic version of this is:
"The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias."
This definitive opinion was supported by, among other things, a thorough textual and structural analysis. It very clearly and accurately identifies "A Well Regulated Militia, being Necessary to the Security of a Free State..." as being a prefatory subordinate clause and not Professor Lund's ablative absolute rhetorical device of Latin prose.
Specifically, "A Well Regulated Militia, being Necessary to the Security of a Free State..." is a prefatory declaration to a provision of legal code...the Constitution. As such, it can illuminate the operative language but is ultimately subordinate to it and cannot restrict it. And that operative language is "...the right of the people to keep and bear Arms, shall not be infringed."
Professor Lund should review his opinion with the understanding that the Second Amendment is a provision of legal code written in English, a Germanic language, and not a Latin rhetorical device (an Italic language). The rules are different.
But what do liberals care for rules...or laws?!
My mistake. Adam Freedman, not Professor Lund, should review his opinion.
In my zeal I erroneously attributed Adam Freedman’s comments to Professor Lund. So as not to besmirch Professor Lund with my mistake, could my post 24 be removed or corrected?
From Largo:
[Copperud:] “To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: “Since 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 abridged.’
From NYT:
Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “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.”
What’s the difference?
The one "absolute" construction in Latin that I'm familiar with (the ablative absolute) is not really absolute in any sense that I understand. (I don't know the origin of the naming of this construction.) Unlike other clauses, it does not have a subordinating conjunction (after, since/because, although, when, with) and requires the main clause to provide some indication of its meaning. It is the main clause which determines the sense of the absolute construction, not the other way around as argued by collective right theorists.
As my Dad would say, "They've got it ass-backwards."
There can be no well-regulated militia in any sense without the people FIRST keeping and bearing arms. Nor can there can be a secure state without a well-regulated milita. It looks like a simple transitive relation, depending upon an armed populace.
You need to define "collective". If you mean an individual right that is only exercised collectively, then there is the right to vote, the right to assemble, and the right to keep and bear arms as a member of a well regulated state Militia.
This is one of the things that bother me about the 16th Amendment (the one justifying income tax) people on this website. They say that the 16th Amendment was never properly ratified since it contained different commas in the different approved versions.
If that is true, that also means the 2nd Amendment was not properly ratified. I, for one, don’t want to go there.
“The best way to make sense of the Second Amendment is to take away all the commas. . . .Without the distracting commas, one can focus on the grammar of the sentence.”
Ummm, moron, commas ARE part of the setence’s grammer. They’re there for a reason.
Liberals’ “interpretation” techniques amaze me. They aid words and phrases to clauses and want to omit words, phrase, and grammar from other clauses.
People were far less picky about punctuation in 1787 than they are today. I don't think anyone would have thought one comma more or less would particularly matter.
BTW, in the Constitution almost all nouns are capitalized. Should one read anything into that, or simply figure that James Madison probably liked the German convention of capitalizing nouns?
“I don’t think anyone would have thought one comma more or less would particularly matter.”
Then why put them there? No one just throws in commas for no reason. The purpose/meaning may have changed over time, but they are there for a reason.
Hmmm, I, think, I’ll, just, comma the, hell, out, of this, sentence, for, fun.
A lot of documents were transcribed orally/aurally. One person speaks, while one or more other people write. I don't know how which copies of the Constitution were transcribed comma but I would expect that readers would often convey punctuation via pauses and intonation. In most cases comma the punctuation in the copies would match the original comma but if the original speaker were to pause for some reason comma that might get misconstrued.
That is absolutele nonsense. Congress has the power to call forth and govern any State's militia, as well as set the rules for training. That, folks, is supreme authority.
What is to stop Congress from calling forth the Illinois NG, for example, into the service of the United States, and then shipping them all to a base in Alaska?
How would the Second Amendment stop that?
_____________________________________
Here is the enumerated power of Congress in the matter:
I.8.15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
I.8.16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
“To disarm the people is the best and most effectual way to enslave them.”
“What is the militia? It is the whole people, except for a few public officials.”
~George Mason, 1788
“The said Constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms.” ~Samuel Adams, 1788
“The militia is our ultimate safety. We can have no security without it. The great object is that every man be armed.”
~Patrick Henry
“No free man shall ever be debarred the use of arms.” ~Thomas Jefferson, 1776
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe.”
~Noah Webster, 1787
Are all members of the militia people or are all people members of the militia? Do I have a right to keep and bear arms because I am a person or because I am eligible for the militia?
If I am too old for militia duty, or say, wheelchair bound, do I still have the right to keep and bear?
A member of a well regulated state Militia does not necessarily have the right to keep and bear arms.
The governor or commander could issue an order to those under his command to disarm. Congress may lawfully remove it by taking command of the state Militia and issuing an order to disarm. See I.8.15 & I.8.16.
How does the Second Amendment prevent that?
It doesn't and never has. The right shall not be infringed by the federal government.
Why would a governor or commander issue such an order? Has any governor or commander ever done so in the history of the United States?
"Congress may lawfully remove it by taking command of the state Militia and issuing an order to disarm. See I.8.15 & I.8.16."
That is what the second amendment was designed to protect against.
When the second amendment was written, it protected the right of "the people" to keep and bear arms as members of a well regulated state Militia from federal infringement. "The people" were a select group of persons -- the enfranchised body politic; white, male citizens.
"Do I have a right to keep and bear arms because I am a person or because I am eligible for the militia?"
You have the right to keep and bear arms because you are a person. That right is protected by your state constitution.
If you are a member of a well regulated state Militia, then your right to keep and bear arms is protected from federal infringement by the second amendment.
"If I am too old for militia duty, or say, wheelchair bound, do I still have the right to keep and bear?"
The right is not removed. You retain it. If you no longer serve in the Militia, the second amendment no longer protects your right. Your state constitution will protect your right.
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