What Does the 2nd Amendment Actually Say?

aberrant85 said:

yes, i think that's mostly the intent too. It makes sense that an 18th century country could get by in a war by having each soldier bring their weapon. But as for ships and cannons, they must have known that they'd have to have a standing army to maintain those, so there must have been some push and pull in the concept of keeping the bulk of the army at home. Now, of course, there are $1 billion aircraft, icbms, aircraft carriers, and nuclear subs in modern warfare. Obviously the bulk of our military is no longer in the soldier's home, so does that defeat the intent of the 2nd amendment?

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yes..

aberrant85 said:

Yes, I think that's mostly the intent too. It makes sense that an 18th century country could get by in a war by having each soldier bring their weapon. But as for ships and cannons, they must have known that they'd have to have a standing army to maintain those, so there must have been some push and pull in the concept of keeping the bulk of the army at home. Now, of course, there are $1 Billion aircraft, ICBMs, aircraft carriers, and nuclear subs in modern warfare. Obviously the bulk of our military is no longer in the soldier's home, so does that defeat the intent of the 2nd amendment?

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Not at all.

The standing army began as a function of national defense and simple practicality. Having the New York militia head out to Kansas to protect against indian assaults on those towns was a fine idea until the New Yorkers got tired and decided they should head back home to tend their crops and families. It was simply more convenient to recruit a regular army for such purposes. As the nation grew so, out of necessity, did the military. However, it was still understood that the people MUST retain the right to arms as the military couldn't be everywhere at once. The Civil War reinforced the need for such liberty and should be a lesson to us all as to why that right is so important.

Today we are entering a phase in this country where the rift between those who wish for a top down government and those who desire a bottom up government is is growing ever wider and it's possible that we will see another civil war. If we, the people, give up our right to defend and define our own liberty then we will be at the mercy of those who choose to define liberty for us.

Lutherf said:

Not at all.

The standing army began as a function of national defense and simple practicality. Having the New York militia head out to Kansas to protect against indian assaults on those towns was a fine idea until the New Yorkers got tired and decided they should head back home to tend their crops and families. It was simply more convenient to recruit a regular army for such purposes. As the nation grew so, out of necessity, did the military. However, it was still understood that the people MUST retain the right to arms as the military couldn't be everywhere at once. The Civil War reinforced the need for such liberty and should be a lesson to us all as to why that right is so important.

Today we are entering a phase in this country where the rift between those who wish for a top down government and those who desire a bottom up government is is growing ever wider and it's possible that we will see another civil war. If we, the people, give up our right to defend and define our own liberty then we will be at the mercy of those who choose to define liberty for us.

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Yeah, but for all our differences I don't think we're heading towards civil war. Before the Civil War congressmen would beat each other up at the capital. Today the parties choose to create gridlock so as not to pass the other party's agenda. Gridlock is very different than open hostility, much more passive resistance than aggressive violence. We're not gonna kill each other, but we might not get anything done for a while.

stated by South Carolina representative Mr. Scott, during the congressional debate on the Bill of Rights...Aug 1789

"This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army."

Amendment II: House of Representatives, Amendments to the Constitution

2nd amendment
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious [*criminal] attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.---William Rawle, , who in 1791 was appointed as United States district attorney in Pennsylvania by G. Washington

Amendment II: William Rawle, A View of the Constitution of the United States 125--26 1829 (2d ed.)

*added

That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms...
--- Samuel Adams

No freeman shall ever be debarred the use of arms.
--- Thomas Jefferson, proposal Virginia Constitution, June 1776, 1 T. Jefferson Papers, 334

Kal'Stang said:

It was not expanded. It always meant that. Otherwise the ones in charge back then would have made laws banning ordinary citizens from having guns.

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No, you don't understand. For one thing, you are employing a logical fallacy known as "non sequitur." For another thing, you don't seem to get the fact that the second amendment was originally only meant to restrict the federal government. It didn't limit the states whatsoever.

Guy Incognito said:

No, you don't understand. For one thing, you are employing a logical fallacy known as "non sequitur." For another thing, you don't seem to get the fact that the second amendment was originally only meant to restrict the federal government. It didn't limit the states whatsoever.

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That is exactly the point. It restricted the federal government from making laws that infringed with the right to bear arms (be it a sword or gun). Which is why they did not make any laws banning ordinary citizens from owning guns. If they did not think it also applied to ordinary citizens but instead it only applied to militia (men aged 17-47) then there would have been laws made to ban anyone else from owning guns.

The fact that it didn't apply to the States, while true, was only due to the fact that the only way to get it passed was to only apply it to the federal government. The states wanted all the power. That changed however when the courts started applying the BoR's to the States. And it was a good thing that they did to. Otherwise we wouldn't have near the freedoms we have now.

Kal'Stang said:

That is exactly the point. It restricted the federal government from making laws that infringed with the right to bear arms (be it a sword or gun). Which is why they did not make any laws banning ordinary citizens from owning guns. If they did not think it also applied to ordinary citizens but instead it only applied to militia (men aged 17-47) then there would have been laws made to ban anyone else from owning guns.

The fact that it didn't apply to the States, while true, was only due to the fact that the only way to get it passed was to only apply it to the federal government. The states wanted all the power. That changed however when the courts started applying the BoR's to the States. And it was a good thing that they did to. Otherwise we wouldn't have near the freedoms we have now.

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No, it restricts the federal government's ability to infringe on the rights of the states to maintain a militia. That's what the phrase keep and bear arms" means, as is clearly articulated in the Garry Wills quote above. So you are applying an anachronistic reading to the second amendment out of ignorance. Simply put, it doesn't mean what you the modern reader think it means. Its meaning must be understood in historical context.

And there were plenty of laws made to prevent people who weren't in the militia from owning guns. The militia was able bodied white male Protestants. You couldn't count the laws that infringed on the rights of nonwhites to own guns.

aberrant85 said:

Gun control is a hot issue, but it all comes down to the 2nd Amendment, which reads:

"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."

But what does that sentence actually guarantee?

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The 2nd Amendment has very, very limited action, it only "does" one thing . . .

It redundantly forbids the federal government* to exercise powers that were never granted to it.

It never had, nor was it intended to have, nor has it ever been inspected to have, nor has it ever been held to have any action relating to the organization, training, maintenance or deployment of "militia"by either federal or state governments.

The theories that the 2nd Amendment speaks to militia powers or the right of states to form / control their militia without federal interference is of recent origin in the federal system (1942) and has never had any presence in the federal judiciary, actually deciding conflicts of federal vs state militia powers.

The people who promote such "militia right" or 'state's right" (or the general 'collective right") theories would force us to accept that the principles of conferred powers and retained rights either never existed or are now defunct (for some unexplained reason they can't articulate in any reasoned legal argument).

They need to ignore / dismiss those fundamental principles of the US Constitution because their anti-Constitution, leftist political agenda forces them to . . . They need to present the argument that the rights of citizens are dependent upon what the 2nd Amendment says as if it was a permission slip that metes out just the specific degree of gun rights the framers wanted us to have and the conditions under which that "right" can be exercised. Such a statist, authoritarian mindset is the anti-thesis of the rights theory and political principles the founders / framers embraced, believed in and used as the foundation for the Constitution.

So, in your quest to discover what the 2nd Amendment actually says, the first thing to understand is that the individual citizens do not possess the right to keep and bear arms because of what the 2nd Amendment says . . . We possess the right because of what the body of the Constitution DOESN'T say, as we did not grant the federal government a shred of power to even compose a thought about the personal arms of the private citizen.

The question then (pertaining to the constitutional legitimacy of gun control) isn't what right can be discerned (interpreted) from the words, construction or punctuation of the 2nd Amendment; the question is what powers have been granted to government to have any interest whatsoever in the personal arms of the private citizen.

And the answer to that question is . . . . . NONE!

The 2nd Amendment only serves as a reminder of that fact; redundantly forbidding government to exercise powers never granted to it.



*Originally, the 2nd Amendment only bound the action of the federal government until 2010 when it was "incorporated" under the 14th Amendment and held to bind state action as well.

Guy Incognito said:

No, it doesn't come down to what the second amendment actually says (whatever that means). It comes down to what the most recent Supreme Court interpretation of the second amendment says it says.

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And since the Court first spoke of the right to arms and the 2nd Amendment some 140 years ago, they have never wavered from the fact that the right is not granted, given, created or established by the 2nd (since it was possessed by the people before the Constitution was established and no aspect of the right was surrendered to government via the Constitution) so it is deemed a "pre-existing right' and thus is not in any manner dependent on the Constitution for its existence.

Guy Incognito said:

Originally, the second amendment protected a militia-based right.

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No, then as now it protected a right that the people never parted with. This was the prinary argument against ading a bill of rights because it was thought unnecessary and dangerous to say things shall not be done when no power was granted to act against those interests.

One chokes on the irony when reading your drivel as your argument is precisely what the federalists feared; misconstructing the provision into creating a regulatory power on the right. It would be funny if it weren't so detestably anti-Constitution.

Guy Incognito said:

It has since expanded considerable due to Supreme Court caselaw, and now the second amendment represents a fundamental individual right to own guns.

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All SCOTUS did in Heller was slap the lower federal courts back into the constitutional fold and invalidate the "state's right" and "militia right" perversions inserted into the federal courts in 1942.

aberrant85 said:

Gun control is a hot issue, but it all comes down to the 2nd Amendment, which reads:

"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."

But what does that sentence actually guarantee?

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It means the government can't cut off people's arms, because it might need them later if a war breaks out. Duh!

James Madison father of the constitution -- We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared, as well as the most mature deliberation hath enabled us, to decide thereon--DO, in the name and in behalf of the people of Virginia declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."

aberrant85 said:

Gun control is a hot issue, but it all comes down to the 2nd Amendment, which reads:

"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."

But what does that sentence actually guarantee?

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the bill of rights restricts the actions of the government from interfering with rights that were presumed to exist prior to the creation of the constitution and would remain if the constitution were to be rejected

Guy Incognito said:

No, it doesn't come down to what the second amendment actually says (whatever that means). It comes down to what the most recent Supreme Court interpretation of the second amendment says it says.

Originally, the second amendment protected a militia-based right. It has since expanded considerable due to Supreme Court caselaw, and now the second amendment represents a fundamental individual right to own guns.

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Horse crap. it recognized the natural right of free men to be armed while also indicating that free men should have the same arms as an infantry regular or a member of a well regulated militia which was pretty much the same as an infantry regular

aberrant85 said:

Yeah, but for all our differences I don't think we're heading towards civil war. Before the Civil War congressmen would beat each other up at the capital. Today the parties choose to create gridlock so as not to pass the other party's agenda. Gridlock is very different than open hostility, much more passive resistance than aggressive violence. We're not gonna kill each other, but we might not get anything done for a while.

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if you remove the issue from the context of politics, there would be no real dispute.

the problem is, the left has decided that gun control is a good tactic to harass the right and to pretend that democrats are doing something about crime So democrats and liberals have pretended that the second amendment really doesn't say what it obviously does in order to justify gun control schemes as not being unconstitutional

Guy Incognito said:

No, it restricts the federal government's ability to infringe on the rights of the states to maintain a militia. That's what the phrase keep and bear arms" means, as is clearly articulated in the Garry Wills quote above. So you are applying an anachronistic reading to the second amendment out of ignorance. Simply put, it doesn't mean what you the modern reader think it means. Its meaning must be understood in historical context.

And there were plenty of laws made to prevent people who weren't in the militia from owning guns. The militia was able bodied white male Protestants. You couldn't count the laws that infringed on the rights of nonwhites to own guns.

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rejected for numerous reasons

including the fact that none of the documents surrounding the constitutional convention support your views

Willie Orwontee said:

And since the Court first spoke of the right to arms and the 2nd Amendment some 140 years ago, they have never wavered from the fact that the right is not granted, given, created or established by the 2nd (since it was possessed by the people before the Constitution was established and no aspect of the right was surrendered to government via the Constitution) so it is deemed a "pre-existing right' and thus is not in any manner dependent on the Constitution for its existence.

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I completely agree with that, and I've been saying that all along. What's important is the fact that the right to own and use guns is a natural right, that is one of innumerable natural rights found outside the constitution. The second amendment related to the militia, and the phrase "keep and bear arms" was a term of art referring to militia serve. Personal, individual gun ownership had NOTHING to do with the original meaning of the second amendment.

Therefore, when people try to argue that the right to own guns in found in the second amendment it is WRONG and/or DISHONEST, as I am sure you will agree.

TurtleDude said:

if you remove the issue from the context of politics, there would be no real dispute.

the problem is, the left has decided that gun control is a good tactic to harass the right and to pretend that democrats are doing something about crime So democrats and liberals have pretended that the second amendment really doesn't say what it obviously does in order to justify gun control schemes as not being unconstitutional

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I think the responses of the poll suggest that what the 2nd Amendment really says is in dispute.

aberrant85 said:

I think the responses of the poll suggest that what the 2nd Amendment really says is in dispute.

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I think most of those who pretend it says something other than the obvious are those who want to restrict our gun rights and want to pretend their actions are not unconstitutional. Its sort of like FDR pretending that the COMMERCE CLAUSE allowed the 1934 NFA

Those who claim that the amendment is only applicable to 18th century arms cannot be taken seriously and should be dismissed as children for example

and for those who say the right is subject to restrictions, they need to tell us what part of the constitution actually gave the federal government the power to restrict the right

TurtleDude said:

Those who claim that the amendment is only applicable to 18th century arms cannot be taken seriously and should be dismissed as children for example

and for those who say the right is subject to restrictions, they need to tell us what part of the constitution actually gave the federal government the power to restrict the right

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But certainly if you want to talk about the intent of the founding fathers you must accept that they wrote the 2nd amendment in the context of the 18th century. They wouldn't have had any idea about how it would be applied in the future.

Guy Incognito said:

I completely agree with that, and I've been saying that all along.

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No, you have been saying that the right, without any consideration of its origin or nature, is qualified and conditioned by the declaratory clause of the 2nd Amendment. You can not argue that the right is pre-existing the Constitution, never has any aspect of it been conferred to government and thus fully retained by the people ("What's important is the fact that the right to own and use guns is a natural right, that is one of innumerable natural rights found outside the constitution. ")and then proceed to argue, ("The second amendment related to the militia, and the phrase "keep and bear arms" was a term of art referring to militia serve. Personal, individual gun ownership had NOTHING to do with the original meaning of the second amendment").

Guy Incognito said:

Therefore, when people try to argue that the right to own guns in found in the second amendment it is WRONG and/or DISHONEST, as I am sure you will agree.

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True that the right is "not found" in the Amendment because it does not in any manner depend on the 2ndA to exist. You OTOH are "WRONG and/or DISHONEST" in saying that no protection for the individual right to keep and bear arms is found in the 2nd Amendment . . . because that is the Amendment's only operation, to declare that the right shall not be infringed. That is the only language in the 2nd Amendment that has ever been recognized as having any action.






So, the only thing that can be taken away from a reading of the 2nd Amendment is that the 2nd Amendment declares that "it" shall not be infringed. The "it" of course is, "the right of the people to keep and bear arms". The right itself does not in any manner depend on what the 2nd Amendment says (or doesn't say), because the right pre-exists the Constitution.

This means it is illegitimate to do what you are doing, imparting a "militia" conditioning or qualification on the right to arms with your inventive misconstruction of the 2nd Amendment.

So, the questions I would like to be answered are, what don't you understand about 137 years and counting of SCOTUS saying the right to arms is in no manner dependent upon the 2nd Amendment and how do you justify holding the opinion that the right does depend on the 2nd, in such offensive opposition to longstanding determinations of the Supreme Court?

Willie Orwontee said:

No, you have been saying that the right, without any consideration of its origin or nature, is qualified and conditioned by the declaratory clause of the 2nd Amendment.

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Who the **** are you to tell me what I've been saying when you obviously haven't read a goddamn thing I've written? You are wrong, and a liar, and if you are a man of any honor I await your retraction and apology for slurs against my character.

The second amendment is irrelevant to an individual right to possess and own weapons, as you yourself demonstrated with several quotes from caselaw. Which is why I maintain that the second amendment's original meaning relates only to a militia right.

aberrant85 said:

But certainly if you want to talk about the intent of the founding fathers you must accept that they wrote the 2nd amendment in the context of the 18th century. They wouldn't have had any idea about how it would be applied in the future.

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You are demanding we accept an absurd premise . . . You need to understand that the framers wrote the 2nd Amendment within the context of the Lockean rights theory the founders / framers embraced.

They did not believe the 2nd (or any of the provisions that recognize and secure original, fundamental, pre-existing rights) actually did anything but redundantly forbid the federal government to exercise powers never granted to it. The 2nd does not create, give, grant or establish the right to arms thus it can not be read to qualify or condition the right.

Without a n amendment granting the government new power to regulate the personal arms of the private citizen there is nothing that needed to be considered vis-a-vis how the 2nd would be "applied" in the future.

Please, re-read ernst barkmann's post 36 above quoting Virginia's Constitution ratifying statement. That was how the framers demanded we consider the Constitution in the future, that is the context of how rights are to be treated until a power is granted to government by a new amendment giving a new power to government:


Let's parse that simple statement:



Guy's disingenuous statement that he agrees that the right to arms is a pre-existing right but then saying that the right secured by the 2nd is only for the militia is arguing in opposition to all the above principles.

How can the government condition and qualify something it has never possessed? How can the government give back to the "people" a "right" they never parted with?


The framers certainly had a precise idea of how the 2nd Amendment should be applied in the future . . . the fundamental structure of the entire Constitution forces it and an understanding of that demands we denounce theories like Guy's and his inventive misconstructions / misrepresentations.

stated by South Carolina representative Mr. Scott, during the congressional debate on the Bill of Rights...Aug 1789

"This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army."

Amendment II: House of Representatives, Amendments to the Constitution

2nd amendment
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious [*criminal] attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.---William Rawle, , who in 1791 was appointed as United States district attorney in Pennsylvania by G. Washington

Guy Incognito said:

Who the **** are you to tell me what I've been saying when you obviously haven't read a goddamn thing I've written?

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I've read everything you have written; don't get upset that I see and understand the constitutional incongruities in what you have written better than you do.

Guy Incognito said:

You are wrong, and a liar, and if you are a man of any honor I await your retraction and apology for slurs against my character.

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Get over yourself and try making a reasoned, sourced argument that attempts to prove me wrong.

Guy Incognito said:

The second amendment is irrelevant to an individual right to possess and own weapons, as you yourself demonstrated with several quotes from caselaw. Which is why I maintain that the second amendment's original meaning relates only to a militia right.

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It is redundant, not irrelevant and certainly most relevant in a post Slaughterhouse Cases / selective incorporation rights climate.

Your position demands you twist and conjure into being things that don't exist, while you purposefully ignore things that do exist.

The right of the people to keep and bear arms does exist . . . a "militia right" belonging to the states or the people does not exist.

There is no such thing as a "militia right" because the process and means of calling up and organizing, training, drilling and deploying the citizenry as militia is a power conferred to the federal government through Art I, § 8, cl's 15 & 16. There is no "right" to be claimed by any entity (state or private citizen) for any aspect of militia activity (for as long as the government is deemed by the people to be acting within the confines of Constitution).

See, this demonstrates the pure folly of your argument . . . You claim the 2nd protects an immunity from federal power that no state has ever imagined and SCOTUS has consistently ignored for 193 years and counting . . .