A Well Regulated Militia? (a view that you may never have heard before)

GodSeesYou.com ^ | Unknown | Ken Kiger

[RightFighter]

Lost in the gun rights debate, much to the detriment of American freedom, is the fact that the Second Amendment is in fact an "AMENDMENT". No "Articles in Amendment" to the Constitution, more commonly referred to as the Bill of Rights, stand alone and each can only be properly understood with reference to what it is that each Article in Amendment amended in the body of the original Constitution. It should not be new knowledge to any American the Constitution was first submitted to Congress on September 17, 1787 WITHOUT ANY AMENDMENTS. After much debate, it was determined that the States would not adopt the Constitution as originally submitted until "further declamatory and restrictive clauses should be added" "in order to prevent misconstruction or abuse of its (the Constitutions) powers". (This quote is from the Preamble to the Amendments, which was adopted along with the Amendments but is mysteriously missing from nearly all modern copies.) The first ten Amendments were not ratified and added to the Constitution until December 15, 1791.

In this Light:

"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." What provisions of the original Constitution is it that the Second Amendment is designed to "amended"?

THE SECOND AMENDMENT IS AMENDING THE PROVISIONS IN THE ORIGINAL CONSTITUTION APPLYING TO THE "MILITIA". The States were not satisfied with the powers granted to the "militia" as defined in the original Constitution and required an amendment to "prevent misconstruction or abuse of its powers. "(Again quoting from the Preamble to the Amendments.)

What was it about the original Constitutional provisions concerning the "Militia" that was so offensive to the States?

First understand that the word "militia" was used with more than one meaning at the time of the penning of the Constitution. One popular definition used then was one often quoted today, that the "Militia" was every able bodied man owning a gun. As true as this definition is, it only confuses the meaning of the word "militia" as used in the original Constitution that required the Second Amendment to correct. The only definition of "Militia" that had any meaning to the States demanding Amendments is the definition used in the original Constitution. What offended the States then should offend "People" today:

"Militia" in the original Constitution as amended by the Second Amendment is first found in Article 1, Section 8, clause 15, where Congress is granted the power:

"To provide for the calling forth the MILITIA to execute the Laws of the Union, suppress Insurrection and repel Invasions." Article 1, Section 8, Clause 16 further empowers Congress:

"To provide for the 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, according to the discipline prescribed by Congress;" Any "patriot" out there still want to be called a member of the "MILITIA" as defined by the original Constitution?

Article 2, Section 2, Clause 1 empowers: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the MILITIA of the several States, when called into the actual Service of the United States;" The only way the States would accept the "MILITIA" as defined in the original Constitution was that the Federal "MILITIA" be "WELL REGULATED". The States realized that "THE SECURITY OF A FREE STATE" required that the "MILITIA" as originally created in the Constitution be "WELL REGULATED" by a "restrictive clause." How did the States decide to insure that the Constitutional "MILITIA" be "WELL REGULATED"? By demanding that "restrictive clause two" better know as the "Second Amendment" be added to the original Constitution providing:

"THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED." The States knew that "PEOPLE" with "ARMS" would "WELL REGULATE" the Federal "MILITIA"!

Now read for the first time with the full brightness of the Light of truth:

"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."

For those still overcome by propaganda:

The Second Amendment declares by implication that if the "MILITIA" is not "WELL REGULATED" by "PEOPLE" keeping and bearing arms, the "MILITIA" becomes a threat to the "SECURITY OF A FREE STATE."

The "MILITIA" has no "RIGHT TO KEEP AND BEAR ARMS" in the Second Amendment, rather it is only "THE RIGHT OF THE ""PEOPLE"" TO KEEP AND BEAR ARMS (that) SHALL NOT BE INFRINGED."

[Gandalf_The_Gray]

I thought “well regulated” meant “well equipped” in the vernacular of the day.

For years "school house" clocks were "Regulator" clocks which I believe was the name of the manufacturer. I also think the regulator was used as a synonym for "smooth running" and "dependable". All of which point to the organization and discipline required of military troops.

Regards,
GtG

[Political Junkie Too]

The Constitution balances the rights of three distinct bodies: The federal government, the several states, and the people. The 10th amendment says that rights not granted to the federal government fall to the states or to the people. Since the 2nd amendment specifically says this right is for the people, the states cannot infringe on it.

-PJ

[NonLinear]

** 2nd Amendment Bookmark **

Thanks for posting!

[LS]

The best analysis of the English heritage of the word "militia" is Ckayton Cramer's work, along with that of Stephen Halbooke. English uses of the militia included the "general" militia, which we commonly refer to---everyone armed FOR the king or the "ready militia" which was a select number of men from every village who kept ready muskets, powder, and (in America) flint.

The colonists of course added the concepts that either or both were to serve as barriers against tyranny---not just the king , but local governors and, of course, Indians. But the key finding of both Craymer and Halbrook was that in theory "the militia" by it's English heritage consisted of the people armed, REGARDLESS of the purpose for which they were armed. In other words, as I read this analysis, it could be right in that the drafters of the Bill of Rights and Constitution wanted to ensure the armed populace COULD act on behalf of the state, but that was not their reason for being armed in the first place. It was a potential benefit.

[Tublecane]

If it is a right, then no, naturally nothing could infringe upon it. But that’s so because it’s an eternal verity, not because of the legal mechanics of the 2nd amendment.

[muawiyah]

You are currently correct but as of 1783 the states were sovereign nations so whatever the Articles or the Constitution said about them necessarily followed in the wake of that sovereignty ~ ergo, slavery would continue to exist in the states and the federal government was clearly edged out of any part of it beyond prohibiting importation of more slaves after a date certain.

Enormous efforts were made in writing the Constituion and the Bill of Rights to AVOID any conflict with slavery ~ else, neither would have been accepted, and you'd need a passport to hit the links in Hilton Head!

Even after the Union Victory, slavery was left alone until passage of the 13th Amendment ~

[Randy Larsen]

You made it clear as a bell for me!

Thank You!

[Tublecane]

They did cede authority, yes. But as should be obvious the Bill of Rights doesn’t consist of authority, but rights. He can you cede rights in order to point to them? The formulation makes no sense. Quit apart from that is the fact that they contain restraints on the central government which the states had no intention whatsoever to apply to themselves.

No, the Bill of Rights were not some national charter of rights against all government. It was specifically drawn up and ratified because people wanted guarantees against the proposed federal government. For this very reason Madison said they were unnecessary, considering the feds were only supposed to do what they were granted the power to do. But others argued, and successfully, that’d never stop them.

[Dead Corpse]

Constitution ratified 1789. BoR 1791.

Nor is slavery mentioned anywhere in the BoR...

So.... Not sure what point you are trying to make...

[muawiyah]

The meaning is actually far more obscure than any member of the Supreme Court or any lawyer in the country has noticed ~ 'regulate' ~ as used in regards to the ancient 'right to keep arms' (notice, not just keep and bear, but keep) also carried with it the implication that YOUR ARMS ~ a whole list of things I posted earlier this evening ~ met an acceptable standard for use in combat.

To make sure you know what that's about at least once a year ALL the knights or men at arms in fealty to a specific noble would show up with their arms for an inspection!

In that way the ranks of the nobles would be known to be prepared for duty. Deficiencies would then be addressed.

This practice where the upper and lower ranks of the ruling warrior class came together for inspection is still followed in modern armies all over the world, and in the earliest times was of vital importance. Spartans would recognize it, as would Athenians!

So would the Kshatriya in the Mahabarat or Ramayana.

[conservatism_IS_compassion]

Preamble to the Bill of Rights

Thanks for posting that; here’s a link to a source for it. Hosted by my alma mater . . .

I like your link, Sacajaweau.

All in all, a very satisfying article and discussion, well worth bookmarking.

[Dead Corpse]

Yep.

:-)

[muawiyah]

Those who were enobled ~ that is, had the right to keep and bear arms ~ when called to duty by their liege lord, had to show up.

There was no draft ~ all nobles were part of a warrior caste. You were born to it.

[Dead Corpse]

The BoR is a list of Rights that are not ceded to any authority as stipulated. Period.

Mason, Gallatin, and Jefferson frown on your conclusion that the BoR isn’t a list of our Rights against all government.

http://constitution.org/cons/quotes01.txt

[muawiyah]

The things Hamilton didn't know are legion ~ and he'd opposed a Bill of Rights imagining that the British tradition of an unwritten constitution would carry over into how we interpreted our written constituion.

His opinion on almost any item in the Bill of Rights is suspect from the start ~ so he concocted a sales pitch he thought would work but wouldn't get into questions of the Fundamental Rights of Man!

Let me put it this way, he could have pointed to the Huguenot experience ~ but he didn't ~ because he was English and last thing he'd ever do is give a Frenchie credit for anything. Thankfully most of the folks involved in preparing the Bill of Rights respected the Huguenots and most of them had an ancestor or two who came to England or America as a refugee from Louis XIV, or earlier as a refugee from the Religious Wars, so knowledgeable people did the writing, and politicians sold the story to the Federalists.

Hamilton reminds me a lot of Rep. Jim Moran ~

[muawiyah]

Read about the Missouri Compromise ~ I think the language of the Constitution as it related to slavery will become quite apparent ~ Souvr’nrs frequently referred to ‘property’, meaning slaves ~ and the states had all the authority they needed to regulate/control the practice of slavery.

[Amendment10]

Cruikshank ignores Art 6 para 2 "laws of any State to the contrary notwithstanding, Judges in every State shall be bound thereby..."

Hi Dead Corpse. If I understand you correctly, beware of falling into the trap of accepting seemingly reasonable but PC interpretations of Supremacy Clause issues. (I've been there.) Only those federal actions based on specific powers which the states have expressly delegated to Congress via the Constitution are supreme to state laws.

For example, consider the eminent domain state land grab case of Barron v. Baltimore. Mr. Barron thought that the 5th Amendment protected his private property from uncompensated land grabs by both the federal and state governments. But the Supreme Court clarified in Barron that "generic" prohibitions / limitations of government power in the Constitution apply only to federal government.

The question that the justice is referring to in the excerpt below is whether or not the eminent domain aspect of the 5th Amendment is a limitation on state powers. I've emphasized in the excerpt where the SC has clarified that "generic" prohibitions on governmen power in the Constitution apply only to the federal government, not to the state governments.

"The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument (emphases added). They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States." --Barron v. Baltimore, 1833.

In fact, note that John Bingham, the main author of Section 1 of the 14th Amendment, had referenced the Barron case as part of his inspiration for making that section. Starting in the 2nd paragraph of the 1st column in the page linked to below, this page from the post Civil War congressional record shows that Bingham had officially lamented that the Founding States had decided not to apply any general prohibitions of government power in the BoR to the states as the Court had clarified in Barron.

Congressional Globe, House of Representatives, 42nd Congress, 1st Session

Note that Bingham had also officially clarified the 14A did not take away state powers.

"The adoption of the proposed amendment will take from the States no rights (emphasis added) that belong to the States." --John Bingham, Appendix to the Congressional Globe, 1866. (last paragraph of first column)

"No right (emphasis added) reserved by the Constitution to the States should be impaired…" --John Bingham, Appendix to the Congressional Globe, 1871. (second paragraph of first column, depending on how you count paragraphs.)

"Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existance." --John Bingham, Appendix to the Congressional Globe. (second paragraph from bottom in third column)

So given that the states had retained the 10A-clarified power to regulate arms under their 2A-clarified umbrella power of regulating militias under the BoR, then they certainly had these powers after 14A was ratified.

[muawiyah]

Actually, your reading would have meant the states didn't really need to enumerate their own popular rights ~ but they did anyway ~ which means they don't agree with your position WAY BACK THEN!

The states began as independent nations with full sovereignty. In US history authority starts at the bottom ~ where the People are ~ and flows up ~ where it is constrained by constitutions.

[LZ_Bayonet]

"Hamilton concludes by saying that the people, who are similarly armed as the army, and similarly trained in the use of the arms, would be a deterrent against the misuse of the army."

Given what is being said here about the 2nd Amendment and Hamilton, would it be possible for Governor's (they would be Republican's no doubt) to call for a "practice" assembly of "irregulars" (who would assemble at a location(s) prescribed by the state governor) openly carrying arms? Was that ever done in any state?

[Dead Corpse]

Actually, they didn’t. The First 13 did because of the framework of the Confederacy.

Minnesota doesn’t. Didn’t need it with the BoR right there. States can grant additional protection and additional “Rights” for the people in their State... But the BoR is the minimum for us all.