The Liberal Gun Club Forum

http://www.dailykos.com/story/2011/1/25 ... US-v-Guns)

So it seems pretty clear that even with "for the purposes of a militia" as an overarching concern, the question of bearing arms is one of an individual right. Half the Bill of Rights -- Amendments I, II, IV, IX and X -- employs the phrase "the people" in upholding rights. Yet no one would argue those apply to anything other than individuals; who has freedom of religion, speech and assembly if not individuals? Why should "the people" of the Second Amendment be any different than "the people" of the Fourth Amendment?
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So again, I ask: What is a "militia" if not a collection of armed individuals? What is "the people" if not a collection of individuals, armed or otherwise?

This post gets an A, for Awesome!

Could we just rewrite the 2A?

I'm semi-serious. It's not written on a stone from God. Amendments can be amended, right?

Between the ambiguity of the verb "bear," the agrammatical, floating, parenthetical clause about the militia, and the individual / collective rights question, the 2nd Amendment is a nugget of inscrutability that will continue to provide fodder for textual analysis in centuries to come.

I happen to agree with the analysis quoted above from DailyKos [attribution corrected], but I also understand how reasonable people, including those in the judiciary, can and do come to a different conclusion. So, rather than rolling a crapshoot everytime a 2A case comes to the courts, why shouldn't we the people, through our duly elected representatives, make the darn thing say what we mean?

MtnMan wrote:Could we just rewrite the 2A?

I'm semi-serious. It's not written on a stone from God. Amendments can be amended, right?

Between the ambiguity of the verb "bear," the agrammatical, floating, parenthetical clause about the militia, and the individual / collective rights question, the 2nd Amendment is a nugget of inscrutability that will continue to provide fodder for textual analysis in centuries to come.

I happen to agree with KV's analysis, but I also understand how reasonable people, including those in the judiciary, can and do come to a different conclusion. So, rather than rolling a crapshoot everytime a 2A case comes to the courts, why shouldn't we the people, through our duly elected representatives, make the darn thing say what we mean?

Actually, not my analysis. It's a fellow Kossack. I just post the RKBA group stuff here since it's from a liberal website and firearm related.

KVoimakas wrote:Actually, not my analysis. It's a fellow Kossack. I just post the RKBA group stuff here since it's from a liberal website and firearm related.

Thanks. Clarified in my original post.

MtnMan wrote:Could we just rewrite the 2A?
I'm semi-serious. It's not written on a stone from God. Amendments can be amended, right?

I have always held that the first part of the 2A is as valid as the last, and all the stuff in between. I have often wondered if the terms militia and people are not mutually exclusive given the grammatical context of this single sentence. I always come away with the aura of a confused naive, give up and wait patiently for the cocktail hour.

Yes, by-all-means, re-write the fucker...As Thomas Jefferson stated in the forward of Jon Stewart's, tome America (the book): "Do you know why we called them amendments? Because they amend!"

Makes sense to me.

Two key parts of this amendment are critical to this debate and your interpretation of them can alter the entire meaning. "Well regulated" and "Militia" have been interpreted to mean a variety of things depending on your side of the issue. The rest of the amendment is relatively straightforward except that an argument can be made as to whether "the people" is a collective term as in "we, the people, have an army" or means each and every person. We would argue that the intent of this amendment is that they are indeed referring to individual rights. A quick glance down the page at the Fourth Amendment may help to clarify: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . " Or the First: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. " It appears that when referring to the entirety of the United States as a whole, the document refers to that body as "people". We contend that it is not a collective reference but an individual reference. If you make the argument that it is a collective reference, you must also argue then that the First Amendment only allows people "freedom of speech" as a collective body and not as individuals. This would mean that you could not speak out against the government, assemble peaceably or petition the Government unless you were doing it as part of some larger, undefined group. If we are to disallow individuals the right to keep arms, then we must also disallow individuals the right to free speech.

Assuming then that we are correct and the term "of the people" refers to individuals, then what about that first clause "A well regulated Militia"? A militia is surely a collective group, and defining it as a well regulated one must surely mean that they are referring to the Army or the National Guard or some similar organization. What exactly was a "Militia" to the men who signed these amendments? Dictionary. com provides us with these three definitions:

1. An army composed of ordinary citizens rather than professional soldiers.

2. A military force that is not part of a regular army and is subject to call for service in an emergency.

3. The whole body of physically fit civilians eligible by law for military service.

All three of these are applicable here. Militias were the armies of individual states during emergencies. They were made up of ordinary citizens who were often forced into service because they were "eligible" and made part of an organized military unit. Read the Militia Act of the Commonwealth of Massachusetts (1793) that follows this article. In it, you can see that it calls for "each and every free, able-bodied white male citizen, of this, or any other of the United States residing within this Commonwealth, who is, or shall be of the age of eighteen years, and under the age of fortyfive years (except as is herein after excepted) shall severally and respectively be subject to the requisition of this Act, and shall be enrolled in the Militia, by the Captain or Commanding officer of the company". So, every male, white citizen is bound by this act to become part of the Militia of Massachusetts. Also, if you showed up and "shall neglect to keep himself armed and equipped as aforesaid, or who shall, on a muster day, or at any other time of examination, be destitute of, or appear unprovided with the arms and equipments herein directed (except as before excepted) shall pay a fine not exceeding twenty shillings. . . " In other words, they are requiring you to be a part of this military unit, and to provide not only your own uniform but your own arms. Failure to do so will result in punishment. You will not be part of the regular Army (trained soldiers) but will supplement them. You should also note that the Militia Act of 1792 allowed the President to call out a state's Militia under certain emergency situations.

It is clear that the men who signed the Constitution saw a value in being able to call upon a state's Militia that provided their own arms. So, the first part of this amendment sets up the reason why they think the right that follows should be allowed. Because an armed military force made up of the populace at large was a powerful weapon. Therefore, it is prudent to allow people to keep arms for themselves. To think that they did not have service to the country in mind when framing that amendment is absurd. And, of course, this would be a "well regulated" Militia where men would report to certain locations and be assigned to a unit that was part of some larger unit, much like the professional soldiers. This would be an army of un-trained soldiers and as such it might require even more regulation.

It is evident then that individuals are given the right to keep arms so that, if the situation should arise, we can be called upon to bring our guns and form a Militia to defend the homeland. How effective would such a measure be in the modern world of "smart" bombs and attack helicopters? Probably not very - although the ongoing struggles in Iraq and Afghanistan show how difficult it is to overwhelm a well armed people. Regardless, our constitution allows for individuals to keep arms as a contingency for war. Most, if not all, states currently have a volunteer military force that evolved from the Militia idea. Check out the web pages for the Tennessee State Guard, the South Carolina State Gaurd, and the New York State Guard as examples of current, volunteer Militias that are under the direct control of the state. Without trying to ferret out individual laws regarding Militias in all fifty states, it is worth noting that the United States Code, which is the "codification by subject matter of the general and permanent laws of the United States" has this to say about the Militia in "Title 10, Subtitle A, Part I, Chapter 13, Section 311. Militia: composition and classes":

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are:

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

So, while most people don't realize that they are indeed part of a Militia, that is what the law currently states. Even though it is doubtful that such a Militia would be an overwhelming force to an invading enemy, it may make the all important difference - much as the Militia of the Revolutionary War did. Regardless, the law currently supports the idea that we are given a right to bear arms so that we may rise to duty, if the need presents itself, as part of a Militia. It also refutes one of the common arguments, that the National Guard has superseded the idea of a Militia.

Great post Mark! I agree completely. The reasons you've outlined are also a great argument for modern selective fire rifles, these being the standard arms in common use with every modern military's soldiers-particularly our own.

mark wrote:Two key parts of this amendment are critical to this debate and your interpretation of them can alter the entire meaning. "Well regulated" and "Militia" have been interpreted to mean a variety of things depending on your side of the issue....

Mark, thank you, that is one hell of an analysis. I must have been absent the day we went over chapter 13 of the US Code in Civics class...shit, I knew that would come back to bite me!

Life it seems, is in the details.

Seriously, I was completely unaware that while I was between the age of 17 and 45 I was a member of a militia...damn!

Aside from 2A being a grammatical disaster by today's standard, you have spent some 1200 words explaining what approximately 4 of those words mean. I say approximately because we have yet to explore the "well regulated" part...

So...

Let's say that the opportunity to re-write 2A is presented to you...and keeping in mind that the seemingly deliberate ambiguity of the bill of rights is indeed it's life's blood, so to speak...

If you could, would you and how so?

MtnMan wrote:Could we just rewrite the 2A?

Here's my 4-minute effort.

The right of the people at large to acquire and keep and carry personal arms shall not be restricted, without due process of law which shall not be durable against a reasonable length of time.

Individual right through people at large. No loophole that shuts down new purchases or carrying. Obvious exclusion of nukes and sherman tanks. Pressure vent for the due process that disarms the mental nutcases and Manson/Dahmers of the nation. But the right cannot be permanently removed by due process without continued effort, so folks that paid their debt to society aren't legally stripped of their right for life.

JayFromPA wrote:

MtnMan wrote:Could we just rewrite the 2A?

Here's my 4-minute effort.

The right of the people at large to acquire and keep and carry personal arms shall not be restricted, without due process of law which shall not be durable against a reasonable length of time.

Individual right through people at large. No loophole that shuts down new purchases or carrying. Obvious exclusion of nukes and sherman tanks. Pressure vent for the due process that disarms the mental nutcases and Manson/Dahmers of the nation. But the right cannot be permanently removed by due process without continued effort, so folks that paid their debt to society aren't legally stripped of their right for life.

You got the job.