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

GodSeesYou.com ^ | Unknown | Ken Kiger

[Repeal The 17th]

“...contemporaneous writings...”

---

“I ask, sir, what is the militia?
It is the whole people, except for a few public officials.”
~ George Mason-1788
-
“Congress has no power to disarm the militia.
Their swords,
and every other terrible implement of the soldier,
are the birth-right of an American.
The unlimited power of the sword is not in the hands
of either the federal or state governments, but,
where I trust in God it will ever remain,
in the hands of the people.”
~ Tench Coxe
-
“No legislative act contrary to the Constitution, can be valid.
To deny this, would be to affirm, that the servant is above his master;
that the representatives of the people are superior to the people themselves;
that men acting by virtue of powers may do
not only what their powers do not authorize
but what they forbid.“
~ Alexander Hamilton
-

[the_Watchman]

I agree. The contemporaneous writings should be examined with this in mind.

That being said, last week I came across this Penn & Teller video where they weigh in on the debate with an argument matching this thread: http://www.youtube.com/watch?v=1GNu7ldL1LM

[muawiyah]

The Second Amendment is about far more than firearms, or militia, or even weapons in general ~ it is about a single expression ~ to wit: "the right to keep and bear arms".

That is a body of traditional privilege and rights that were worked out over thousands of years to differentiate the class obligated to defend the state from the class of commoners, not so obligated, or of slaves.

The term "people" applied to everyone ~ even slaves ~ as determined by state law ~ and was about as universal as you can get. The Supreme Court has made some determinations that "people" even gives rights to illegal aliens and jailed prisoners.

So, that's where we are ~ mystical origins in dawn of time ~ and somebody forgot to mention this in the body of the Constitution itself.

I'd be somewhat concerned with what it was motivated the Constitution's writers to fail to deal with one of the more overriding concerns of the time ~ the status of the NOBILITY ~ please note they said the gub'mnt couldn't give you a title of nobility, but that didn't necessarily mean you weren't still a nobleman!

Think about that a moment ~ the Constituion prohibits federal or state involvement in giving noble titles to folks BUT it doesn't abolish the class system inherited from Great Britain, and Europe in general ~ or from Indo-European history.

...........

Enough thinking time. So what did the Founders do about this pressing problem? That's where I think the Second Amendment comes into play ~ it assumes the right to keep and bear arms is part of the rights and privileges inherent in being a person in America ~ that is, that you are a nobleman just because you are here ~ and the federal government is prohibited from abridging any of the privileges and subordinate rights that derive from noble status!

So, what special rights did a nobleman have? For starters all noblemen could actually

keep arms ~

hire arms makers ~

own forges and foundries ~

breed war horses ~

arm their ships ~

arm their wagons and other rolling stock ~

build castles ~

build defensive walls and ditches ~

stock gunpowder ~ ........ ~

and most important in an earlier time, keep armor!

Non nobles were simply prohibited from doing or having any of those things!

The body of the Constitution and the Bill of Rights recognize many other rights and privileges that pertained only to nobles ~ in fact, most all of the rights named in the Constitution in any way were, in an earlier time, rights only nobles had!

once you have all that firmly in mind you immediately discover what it was they were saying about slavery ~ that in states where some people were property their rights could be abridged, but where people were people, they were assumed to be noblemen with all the rights and privileges attendent there to.

At the same time the Founders did abolish the former class system. Removal of the Second Amendment would re-establish the class system ~ because nothing else abolishes it.

[muawiyah]

More like, A good supply of trained knights being necessary to the defence of the kingdom, the rights of the noble classes to keep and bear arms shall not be infringed.

[Dead Corpse]

Yep. Sounds about right. Preamble kinda bears that out too...

Preamble to the Bill of Rights

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the “Bill of Rights.”

[Dead Corpse]

Wrong. Art 6 Para 2 clearly states, “laws of any State to the contrary notwithstanding”.

Ie; “Shall not be infringed” applies to them as well via the Supremacy clause.

Heller decision by the SCOTUS bears this out.

[Dead Corpse]

The active militia were to be “regulated”. The inactive militia have a Right to keep and bear arms, but need a certain amount of equipment and weapons if they want to serve as active militia.

Read the Militia Act.

[Amendment10]

I really liked the article. It introduces some nuances concerning 2A which I had never considered.

HOWEVER..

There is a big problem with modern interpretations of the BoR imo, including 2A.

More specifically, as a consequence of many patriots being seemingly unaware of the Founders' division of federal and state powers evidenced by the Constitution's Section 8 of Article I, Article V and the 10th Amendment, please consider the following nuance on the BoR which might surprise a few people.

The drafters of the BoR originally decided that the government prohibitions / limitations of power in the BoR applied only to Congress, not to the states. (14A changed the scope of prohibitions / limitations of government powers to include the states, but did not change personal rights.)

In fact, a recent thread in FR referenced United States v. Cruikshank, a case where the Supreme Court clarified 2A gun rights in the context of the Founders' division of federal and state government powers. Here is a key statement from United States v. Cruikshank.

"The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This 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, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes (emphasis added), to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States." --United States v. Cruikshank, 1875.

[AndyTheBear]

This is the meaning I had inferred was most likely just from the second amendment itself...now having the link to the rest of the Constitution highlighted like this, it makes me more convinced that my reading was correct. Thanks for posting this :-).

[Tunehead54]

Reference bump ... ;-)

[AndyTheBear]

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

Interesting. You inspired me to google the etymology of the word regulate to see if it used to mean something different. According to this page of an online Etymology dictionary:

regulate (v).
1630s, from Late Latin regulatus, pp. of regulare "to control by rule, direct" (5c.), from Latin regula "rule" (see regular). Related: Regulated; regulating.

While this does not tell us what the founders meant by it for certain, it seems that the original 1630 meaning had nothing to do with equipping but with controlling by direct rule....which is kind of what it still means today.

Still I am no expert on the language of this time, and am open to evidence that the founders may have meant well equipped--outside of opinions expressed by debates of the second amendment, where the interpretation may be colored by one's views.

[deweyfrank]

Thanks.

[CodeToad]

If I read your words correctly, I think of the wording of the 2nd in exactly the same way, that the people must be armed in order to ensure a well regulated militia. A “well regulated” means logicistically supplied and properly familiar and practiced with their arms.

[theBuckwheat]

” It is entirely up to each State to determine how much it wants to allow weaponry access to any potential militia members.”

And the Empire State was in such a hurry to infringe on a right that “shall not be infringed” that it forgot to give its own armed agents a pass.

[Dead Corpse]

1st Amend says "Congress shall make no law". 2nd Amend simply states "shall not be infringed" with no limit on who may have attempted said infringement.

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

So no... A State can't "infringe" on your RKBA either.

Of course, if you are running around committing violent crimes against others with them, the use of a weapon would have a bearing on your sentencing.

[publius911]

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.

What has always puzzled me, and continues to do so is that the "preamble to the Amendments" of the Bill of Rights has never been published in a way that can be easily found by the modern American. I have never seen it. Even this article, which purports to clarify and demystify the meaning of the document, Fails to quote the entire preamble in its entirety. Or, better yet, include a facsimile of the actual preamble.

We can argue and debate the original meaning til doomsday, but lacking a complete set of documents, manuscripts and debates related to them, we are stuck with poor "translations" and opinions by charlatans with questionable agendas, huge egos and no interest whatsoever in simply discovering and disseminating facts and truth.

[Dead Corpse]

Not trying very hard...

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

http://www.drexel.edu/usconstitution/billOfRights/preamble/

And here’s the full debate list for the Bill of Rights...

http://constitution.org/dhbr.htm

And yes, I’ve read them all.

[vortigern]

Perhaps a simple way to state the obvious is: The 2nd Amendment does not give a right to bear arms to people, rather, it implies the pre-existing right (also known as a “natural right” shall not be infringed.

[AndyTheBear]

If I read your words correctly, I think of the wording of the 2nd in exactly the same way, that the people must be armed in order to ensure a well regulated militia. A “well regulated” means logicistically supplied and properly familiar and practiced with their arms.

Hmmm, I am reading it slightly differently than both you and the article as I reflect upon the points made in the article.

I think "well regulated" means directly controlled by the federal government, and "militia" means the military that the federal government controls. By "necessary for a free state" I take it to mean that in order to secure national security, we need to give the federal government to power to have such a militia.

I take the inherent danger of having a regular military controlled the federal government to go without saying.

In modern vernacular I would say the amendment would read:

"Since the feds need to have a regular military under their command in order to keep our country secure, it would be insane to leave everybody vulnerable to the abuse of that controlled military by infringing on their God given right to keep and bear their own arms"

[winodog]

Good source and here is Noah Websters American dictionary of 1828
http://1828.mshaffer.com/d/word/regulate

regulate

REG’ULATE, v.t.

1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.
3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.