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2nd amendment rights.

Are restrictions on the purchase/sale of firearms constitutional?


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So it is your interpretation that the state can regulate the militia but NOT the citizenry?
It seems highly likely that "well regulated" simply means well trained and the like - as opposed to a mob of civilians waving pitchforks and torches.
 
It seems highly likely that "well regulated" simply means well trained and the like - as opposed to a mob of civilians waving pitchforks and torches.

That is what it meant at time, absolutely.
 
and you know this because....??????
 
Excellent answer. Could you please provide some objective evidence to support this viewpoint? Supreme Court decisions which define the term as you see it would do quite nicely.
 
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Haymarket is thread-banned. That means no more posts in this thread by Haymarket; any violations of this order will be 5 point infractions per post.
 
Excellent answer. Could you please provide some objective evidence to support this viewpoint? Supreme Court decisions which define the term as you see it would do quite nicely.

What’s the point?

It's blatantly obvious that the writers were referring to training and discipline when they wrote “a well regulated militia…”.

What ELSE could they have been talking about?

Edit: Well never mind then, see above 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.

Read it again...

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.

You just flunked your English test. A comma means a PAUSE, not AND...

ricksfolly
 
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This thread has come off the rails. FAR too many posts by several posters, with no substance other than sarcasm rising to the level of baiting/trolling. Infractions have been issued to more than one poster.

If you're going to continue in this thread, discuss the issue, not the poster, and keep it civil and on-topic. Thank you.
 
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Goobieman, thread-ban.
 
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?
 
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.
 
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.
 
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.
 
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"
 
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
 
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Because unlike some, I've studied the issue. :roll:

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.
 
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?
 
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.
 
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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 expected to have at least some familiarity with their weapons as well as fighting in a disciplined company in line. 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.


european muskets were very inaccurate and were usually smoothbore to facilitate a fast reload. British tactics were similar to what they Used in Agincourt-overwhelm the enemy with projectiles that were effective when directed to massed lines of men. THose who could reload faster and not break ranks while taking casualties usually prevailed. of course if you had accurate weapons, like kentucky long rifles, you could direct aimed fire at individual targets-hence the "nasty" habit of American snipers aiming for horse mounted british officers.
 
european muskets were very inaccurate and were usually smoothbore to facilitate a fast reload. British tactics were similar to what they Used in Agincourt-overwhelm the enemy with projectiles that were effective when directed to massed lines of men. THose who could reload faster and not break ranks while taking casualties usually prevailed. of course if you had accurate weapons, like kentucky long rifles, you could direct aimed fire at individual targets-hence the "nasty" habit of American snipers aiming for horse mounted british officers.

Yep. Breaking enemy formations was all about frontage and massing all that inaccurate fire to win battles. "Well-regulated" troops were good and this, and this is how you won decisive engagements up until the improvements in powder that allowed for the line soldier in the Civil War to get his hands on a rifled musket that could be used for more than 2 or 3 shots without the powder residue getting clogged in the rifling--making the weapon useless.

Irregulars were the ones who would've been using the long rifles for sniping and skirmishing in the backwoods.
 
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.

Exactly, this is not my own theory but based on the analysis of some prominent historians and legal scholars.

As to the question of what "keep and bear" means, I myself used to think just the way you did. But you cannot read modern definitions into it, it is actually a term of legal term of art wit ha precise meaning:
Historian Mark Tushnet said:
When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.

As to the question of whether the original intent was to create an individual right or a right tied to the militia, Judge Posner, one of the most respected conservative judges of our time, has this to say:

Judge Richard Posner said:
The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
 
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.


Do you think that by repeating this over and over and over and over and over and over and over and over and over, someday it'll suddenly be true?
 
Exactly, this is not my own theory but based on the analysis of some prominent historians and legal scholars.

As to the question of what "keep and bear" means, I myself used to think just the way you did. But you cannot read modern definitions into it, it is actually a term of legal term of art wit ha precise meaning:

The quote you offerred establishes that the phrase "keep and bear arms" was intended in a strictly military context. I disagree with this, but even if he's right that doesn't in any way imply that individuals couldn't have weapons. The militia back then was drawn from the citizenry on a temporary basis, the disctinction between soldier and citizen was even less distinct then than it is in many cases today.

As to the question of whether the original intent was to create an individual right or a right tied to the militia, Judge Posner, one of the most respected conservative judges of our time, has this to say:

Posner argues that the 2nd amendment "creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property." I agree, it doesn't create any right, nor do the other amendments in the bill of rights. It simply prohibits the government from removing a right that is already retained by the people. Who in this thread has argued that the 2nd amendment creates a right in the first place?
 
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