View Poll Results: Are restrictions on the purchase/sale of firearms constitutional?

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Thread: 2nd amendment rights.

  1. #461
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    Re: 2nd amendment rights.

    Moderator's Warning:
    2nd amendment rights. Goobieman, thread-ban.

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    Re: 2nd amendment rights.

    Quote Originally Posted by ElijahGalt View Post
    Of course the militias, or military, should be regulated. However, people who make this classic argument against gun rights based on the mention of a regulated militia are forgetting something very simple in the interpretation:

    THERE'S A COMMA NEXT TO STATE, explicitly stating that both a regulated militia, AND the individual citizenry, have the right to possess arms.
    I'm not using it as an argument to support restriction, I'm asking the question: it clearly states that the militia is well regulated and said well regulated militia is necessary for a free State. If the citizenry is the militia, who's the regulator?

    That's what I'm asking. I agree with the 2nd Amendment, but I think "well regulated" is a quandry because it's clearly there and what it means varies a great deal from person to person and from legal scholar to legal scholar.

    It's also the only right (possibly the third) to be written conditionally as opposed to the others. The 1st Amendment is pretty clear - Congress shall make no law..., while the 2nd offers a condition before specifying the right.

    Again, I'm not arguing FOR restrictions, I'm just debating the language.

    For instance: when Tennessee passed the Guns in Bars law, bar-owners went ape-**** (because their insurance premiums would skyrocket) and even a bunch of largely conservative business owners began suing and lobbying to prevent the bill's passage.

    So, I ask: in order to maintain a well regulated militia, is it necessary to grant the people the right to bear arms in a bar? Or is that a reasonable restriction to say a business owner can disallow guns in his establishment?

  3. #463
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    Re: 2nd amendment rights.

    So, regarding the question posed at the beginning of this thread...
    First, the 2nd Amendment:
    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.
    -------------------------

    Hmmmmmm….

    Yes and no.

    My understanding is that the 2nd is designed to prevent the government from infringing on the people’s right to keep (read: own) and bear (read: wield, use, etc.) arms.

    Now, I know some people read the 2nd as if it tied the “well regulated militia” directly to the right to bear arms.

    I, however, do not.

    To me, it reads as:
    “Because a well regulated militia (read: at least partially trained defense force) is necessary to ensure the security of a free state (and seeing as the militia needs weapons, obviously), we forbid any infringement on the right of the people to keep and bear arms”.

    Some may argue that the bit about the militia means that unless a person is in the militia, they can’t keep and bear arms.

    It is possible that this is the case, but I note that it does not specifically state such.

    It simply gives a reason for, and then the details of, the restriction the Gov operates under.

    At least as I read it.
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  4. #464
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    Re: 2nd amendment rights.

    Quote Originally Posted by The Mark View Post
    To me, it reads as:
    “Because a well regulated militia (read: at least partially trained defense force) is necessary to ensure the security of a free state (and seeing as the militia needs weapons, obviously), we forbid any infringement on the right of the people to keep and bear arms”.

    Some may argue that the bit about the militia means that unless a person is in the militia, they can’t keep and bear arms.

    It is possible that this is the case, but I note that it does not specifically state such.

    It simply gives a reason for, and then the details of, the restriction the Gov operates under.

    At least as I read it.
    That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.

    Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.

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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.

    Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.
    An interesting (and somewhat plausible) interpretation.

    Do you have evidence that supports this theory?

    Seeing as your statement implies that such was part of the legal thought at the time, it would seem likely that some supporting documentation would exist.
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  6. #466
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    Re: 2nd amendment rights.

    Quote Originally Posted by haymarket View Post
    So the SC can interpret all law and the Constitution but for some reason the one sentence Second Amendment is off limits in your mind?
    That is a strange standard indeed.
    some things are so obvious they shouldn't need interpretation. Political dishonesty was the only reason why "the right of the people to keep and bear arms shall not be infringed"



  7. #467
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.

    Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.
    wrong and speculative. what started the revolution was the brits moving to seize a common arsenal.

    once again Guy doesn' think the second amendment applies to individuals

    but he refuses to answer where the federal government is delegated any power to regulate small arms and he ignores the 9th and tenth amendments completely
    Last edited by TurtleDude; 11-18-10 at 10:34 PM.



  8. #468
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    Re: 2nd amendment rights.

    Quote Originally Posted by Harshaw View Post
    Because unlike some, I've studied the issue.
    so have I and if you read the works of constitutional historian Joyce Malcom and others that is true. A well regulated militia was one that had been

    1) called together
    2) trained
    3) elected officers
    4) had a mission to accomplish

    until the muster was issued and the militia had formed it was the "unregulated" or unorganized militia. sort of like a squad of volunteer firemen before there was a call to suppress an arson or a fire.



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    Re: 2nd amendment rights.

    Quote Originally Posted by FilmFestGuy View Post
    I'm not using it as an argument to support restriction, I'm asking the question: it clearly states that the militia is well regulated and said well regulated militia is necessary for a free State. If the citizenry is the militia, who's the regulator?

    That's what I'm asking. I agree with the 2nd Amendment, but I think "well regulated" is a quandry because it's clearly there and what it means varies a great deal from person to person and from legal scholar to legal scholar.

    It's also the only right (possibly the third) to be written conditionally as opposed to the others. The 1st Amendment is pretty clear - Congress shall make no law..., while the 2nd offers a condition before specifying the right.

    Again, I'm not arguing FOR restrictions, I'm just debating the language.

    For instance: when Tennessee passed the Guns in Bars law, bar-owners went ape-**** (because their insurance premiums would skyrocket) and even a bunch of largely conservative business owners began suing and lobbying to prevent the bill's passage.

    So, I ask: in order to maintain a well regulated militia, is it necessary to grant the people the right to bear arms in a bar? Or is that a reasonable restriction to say a business owner can disallow guns in his establishment?
    is it your opinion that the second amendment delegates to the Federal GOvernment the power to regulate a militia?



  10. #470
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    Re: 2nd amendment rights.

    I'm seeing a trend here of some people using the word "regulated" in the modern context with regard to the 2nd amendment. That's flat-out wrong.

    A very minimal understanding of the military terminology of the day reveals that the word had an entirely different meaning in that context. Essentially, professional line troops that fought for a specified term of service were known as regulars, as in British regulars (picture the long line of redcoats). They were distinguished because they fought in formation and were well-trained, they drilled often to ensure proper discipline and obedience to line officers.

    Then you had irregulars...men levied, often for an indefinite term of service, who participated in reconnaissance, geurilla warfare, and did not fight like regulars--they were essentially skirmishers, indian scouts, partisan rangers, etc. They did not fight in drill formations and were often seen as undisciplined and ineffective against regulars...usually they were most effective at harassing supply lines and would scatter and retreat if facing a disciplined line company. See Roger's Rangers as an example.

    In the 2nd amendment, the phrase "well-regulated militia" is referring to the training, effectiveness, and combat discipline of the militia which, when called, were often expected to furnish their own weapons and as such were expected to have at least some familiarity with their weapons as well as fighting in a disciplined company in line. This was because, without any extensive professional army in america, the american militia had to be able to fufill the role of professional regular troops in a contingency. The "regulation" had nothing to do with the idea that the government should control people's access to firearms. Hell, on the frontiers of the day, where many people lived without access to any state protection, firearms were an absolute necessity for both self defence and the procurement of food.
    Last edited by other; 11-18-10 at 11:43 PM.

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