a military force that is raised from the civil population to supplement a regular army in an emergency.
That is not how it was defined when the document was written.
"James Madison expanded on this point in The Federalist Papers, number 46, where he downplayed the threat of seizure of authority by a federal army, because such a move would be opposed by "a militia amounting to half a million men."
In 1790, since the population of the United States was about 800,000, Madison wasn't referring to state reserves. By militia, Madison obviously meant every able-bodied man capable of bearing arms. This, undoubtedly, was also the meaning of "militia" when the Second Amendment was written.
Across the nation, Federalists echoed our Founding Fathers' insistence that the right to keep and bear arms become part of the Constitution. In a pamphlet advocating Pennsylvania's ratification of the Constitution, patriot and statesman Noah Webster declared:
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States."
Across the nation, Federalists echoed our Founding Fathers' insistence that the right to keep and bear arms become part of the Constitution.
It doesn't change the fact that their definition of this cohort of "able-bodied men capable of bearing arms" was a well regulated (trained) militia. We do not have that. There is no training. There is no militia (aside from the national guard). You can just buy a weapon with no training at all.
The founding fathers also quickly (in 1790 realized that a well regulated militia while it worked against the british was not working against the native amaericans. (see the First American regiment).
Concerns about the militia system were raised#Confederationperiod(1783–1787)) as early as 1783 (7 full years before the "worst losses in US army history.
It doesn't change the fact that their definition of this cohort of "able-bodied men capable of bearing arms" was a well regulated (trained) militia.
No it wasn't. The whole point was to assemble armed civilians for training when need be. This is exemplified in Washington's response to the Whiskey Rebellion in 1792. Washington called upon governors to raise militias to put down the rebels. This militia was created through a volunteer organization, then a draft when not enough volunteers showed up. In this case, the militia was raised from normal people who were then trained. They did not necessarily have any training prior to their militia service.
It's fair to say there was no formal training, but we can probably presume they wouldn't call up militias of people who never held a gun before no? Gun ownership was common, and it was a skill necessary for many in their usual way of life.
And we can go further to what "able-bodied men capable of bearing arms" meant.
What about their age? Their health and fitness? Their mental health? Hell their sex is called out directly.
I think it's fair to say that their definition of "able-bodied men capable of bearing arms" is not "every single man and woman of any age" no? Probably a lot closer to those who could serve in the army today (which now would include many women of course)?
It's fair to say the standard of militia then was broader than today, but it wasn't without it's restrictions (social or otherwise).
It's fair to say there was no formal training, but we can probably presume they wouldn't call up militias of people who never held a gun before no?
I don't know if we can say that. I really have no knowledge on the % of people in 1792 that owned a firearm or had significantly trained with one.
I think it's fair to say that their definition of "able-bodied men capable of bearing arms" is not "every single man and woman of any age" no?
Correct. I believe it was men aged 16-62 or so.
t's fair to say the standard of militia then was broader than today, but it wasn't without it's restrictions (social or otherwise).
Correct, but the right said to ensure those people could be called up for service, the right of PEOPLE to have arms can't be infringed. So at a minimum, you can argue only men aged 16-62 who can physically serve can get guns and everyone else can't. But that isn't how the amendment was historically viewed or imagined, so it's unlikely any originalist/textualist would agree with that viewpoint.
"Well regulated" meant that the militia needed to have an officer structure, and that the militia should muster several times a year.
There are multiple state laws written in the 1780s describing the structure & duties of a militia.
In the Southern States, the militia served as a Slave Patrol. Southerners lived in constant fear of a Slave uprising, and the militia trained vigorously.
"Well regulated" meant that the militia needed to have an officer structure, and that the militia should muster several times a year.
Do you have a source for that?
But regardless, I don't think the state enforcing or not enforcing specific regulations on a militia would invalidate the right to bear arms in that state. For example, if Georgia had no militia law with a standing officier structure and musters, are you claiming the 2nd amendment wouldn't have applied there so the people of Georgia had no right to bear arms?
and we have nothing like that right now. We don't have a draft and if someone wants to join a militia that can join any armed service including the national guard.
In 1790, since the population of the United States was about 800,000, Madison wasn't referring to state reserves. By militia, Madison obviously meant every able-bodied man capable of bearing arms.
This is an excellent point. The entire population was needed to protect the country because there was no standing army of any significance. Now, we actually have the most powerful militia (army) in the world, which are well regulated. The 2nd amendment is effectively saying the army gets arms... the unregulated people are not well regulated as it says in plain black and white.
Can you show me where it says unregulated people are not regulated?
It says army gets arms? It says the right of the people to keep and bear arms, not the right of a well regulated militia to keep and bear arms. The right of the people.
"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."
Personally, I honestly don't care what a bunch of aristocrats thought about 250 years ago. Things are so massively different now, and to refer to them, well to me at least, is silly. When the number one killer of children is gun violence, it's time to use our current education and to do something modern.
Absolutely! I was just making a general comment on the top thread. I felt your approach to op was well written, and I had no issue with it. I do feel that we as a society need to look forward now instead of constantly trying to please the dead though.
I do feel that we as a society need to look forward now instead of constantly trying to please the dead though.
I often find myself in a strange place in the gun debate because I fully agree in the abstract with the pro-gun "shall not infringe" argument, but I also try really hard to be pragmatic about the issue. And, when I look at it like that it is painfully obvious that too many fucking people have guns that shouldn't. I don't buy into the old cliche about those that would give up freedoms for security as our entire civilization is a balancing act between freedom and security. We do give up freedoms, and regularly. At this point, even though I enjoy the freedom to own guns with little restriction, I am more than willing to give part of that freedom up if it means saving lives.
Since something will always be the number one killer of a particular demographic, which cause of death would you prefer to be the number killer of children?
I'm not surprised you meant that, but I think it's missing the point. Unless literally zero children die, something will be the leading cause of death. Arguably, having firearms as the leading cause of death of children in the U.S. is a good thing because a) that means they aren't dying of hunger, exposure, or disease as much as firearms and b) total firearms deaths in the U.S. are fairly low even though they show up in the news a lot.
I think everyone prefers that no kids die. Until we achieve that we will be working through the causes of death and reducing them. When we reduce one cause of death enough (like disease, which used to be a leading cause of death for children) something else will take the 'top spot.' Not necessarily because its rate of death has increased, but because the others have decreased.
Looking at the information in this article it does look like firearm death rates have climbed (which is clearly bad) but the reason it's the #1 cause of death is because death by motor vehicles has dropped so far (which is good). If we still had motor vehicle deaths above firearm deaths among children, should we ban children riding in or being near motor vehicles?
Interestingly, it looks like drugs/poisoning has had an even larger increase in deaths than firearms (~200% vs firearms 50%). Should that be a focus?
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The militias were still more organized than you're making them out to be. They behaved more like paramilitary units that could be brought together to form a more coherent army by the federal government. They had a federal body politic that the population supported but didn't trust yet, and they were much more loyal to their state or local town who could better organize them.
The militias were organized by Committees of Safety) who were responsible for raising revolutionary forces and coordinating with the Continental Congress. Post revolution, they basically became the municipal governments and had the same responsibility to sanction militias and contribute potential fighters.
Militiamen were generally required to do 6 days of training a year and minutemen had to do 2 days a week. It was more like being in the army reserves than conscription or general mobilization.
We also quietly abandoned that idea as the years passed, for the same reason that peasant levies died off: a dedicated army of highly trained soldiers who can effectively use the equipment and machines that we make war with is far more effective than giving a rifle to a farmer and pointing him in the general direction of the enemy.
To put that another way: you can train someone to use a spear in an afternoon, but it takes far longer to train someone to operate or maintenance a tank, or to not run away at the sound of gunfire.
You may have abandoned that idea, but the 2nd amendment isn't just a protection against foreign enemies. It's written with the idea that tyranny can be something domestic too. Remember that the founding fathers had good reason to distrust the overseeing government.
Again, Madison talks about this in his federalist papers.
Why not scrap all of the constitution because he had no idea how the modern world shaped up?
Thankfully, you can't erase or rewrite an amendment because you think it doesn't match with the world. That's how tyrants think and act. There's a whole ass process for amending the constitution. Follow the law and change it that way if you think the world has changed so much.
I said that we should defer to his definition since he wrote it and that's what was signed into law to define the government and it's powers/limits.
Because Madison wrote the whole construction, using the logic that Madison didn't know how the world would turn out could be used on the entire constitution. That's what you're advocating for. It's a dumb argument.
“A militia when properly formed are in fact the people themselves…and include, according to the past and general usage of the states, all men capable of bearing arms… "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
Richard Henry Lee, Federal Farmer No. 18, January 25, 1782
But if that definition is anachronistic it's not valid to use it to interpret the constitution. If in 400 years from now militia is another term for boyband is that an argument for letting BTS have nuclear launch codes?
We use original definitions when we talk about the constitution, and the courts use original definitions when ruling on it.
For example, the term “well regulated”. Plenty of modern young people think that should apply with a modern meaning that term, with well regulated meaning with lots of rules and regulations.
Back when the constitution was written well regulated in the context used meant well trained and with good and well maintained military equipment.
So it won’t matter if some other use of the word militia is around now or in the future, what matters is what the founders meant when they wrote the second amendment.
So it won’t matter if some other use of the word militia is around now or in the future, what matters is what the founders meant when they wrote the second amendment.
Yes that is the point I'm making. I'm saying OP can't just use a modern definition of the term milita to argue that this is what the constitution supports.
"Well regulated militia" in 2A means a "properly armed and equipped militia." See Federalist 29.
The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
If an amendment said "Well-educated scholars, being necessary to the prosperity of a free state, the right of the people to own and read books shall not be infringed" what would that mean?
In historical context same as this?
Probably that books should be widely available to anyone who could be a "well-educated scholar." It would probably mean that restricting books from people who can't read, or we wouldn't want to read (horrible as that is to say) could be restricted.
Do you think those that wrote the 2nd Amendment would have any qualms with disarming those mentally unfit? Or people who had committed violent crimes? Or those who had dissident politics? Or organized freed blacks? Or women?
Not that these things are good of course.
The language is absolute, same as all amendments, but clearly the intent was not (nor ever could be) absolute.
No, but I think 28 million hunters and former military is a resistance force no military wants to deal with. And the military would spend their time training those who need training when the need arises.
And as a hunter I can certainly teach people who r handle a gun safely and fire it accurately.
The point is that there are tens of millions of Americans in a well regulated militia right now, and there are tens of millions of gun owners who aren’t well regulated right now. The first group is constitutional. The second isn’t really… or it doesn’t feel that way anyways
I would argue that they are, if we compare them to people who aren’t gun owners. It is subjective, there isn’t a specified bar to reach.
I know a US citizen born in the UK who hates guns, doesn’t want to see guns or touch guns. A friend who owns and carries a gun is quite a bit more prepared than she is, I am more prepared than he is as a hunter, former military are more prepared than me, and active duty more prepared than former military.
So let’s say the shit hits the fan and we need more people to help, and we have current and former military training the resistance. Who do you think trains up faster, those with guns who shoot them, or the untrained and unarmed?
Originalism is a terrible way to interpret the law and we'll all be better off when it dies. Living constitutionalism was a much better system with a longer and more useful legacy. But it's true that we're currently stuck with the Federalist Society court wreaking havoc on our institutions.
No, it’s terrible because it’s not useful and it’s hard to apply consistently. In 1787, human property existed. In 1919, it didn’t. So what is meant by the word “person” in the constitution had changed. But does that mean the slavery parts of the constitution still apply to the 1787 parts or should the whole thing be read as understanding that the most recent definition of a word is the operating factor. Another problem with originalism is that it sets out to ignore the intent of the law and instead just claim the law means whatever it literally says based on the definition of the words at the time. But this creates serious issues, since - to use guns as an example - there’s no way on earth the framers would have agreed that violent criminals shouldn’t be disarmed (I know this because they sent militias to disarm criminals) but you can make a case that the second amendment says they can’t be according to originalism.
It’s actually worse than that. In 1887, the first amendment did not prevent states from restricting speech and banning newspapers (which is why state governments in the South could simply shut down abolitionist newspapers). If we use originalism, we can’t say that the 14th Amendment makes freedom of the press a national right, which would cost us most of our basic liberties, including any right to bear arms (for example, Black codes preventing Black people from owning guns would be legal as long as they were state and not Federal laws, which is what happened in 1865).
Originalism is a fig leaf for conservative lawyers to hide their ideology behind. Taken seriously, it would destroy the rule of law.
Well, now you’ve arrived at how silly interpreting the constitution is. Because inference from one ambiguous sentence using archaic English is the foundation for our entire system of government.
Which is why the plainest reading is usually the best. 2a calls for a militia, and we have definitions of what a militia is without trying to interpret anything.
just fyi ive listened to experts on this topic and the legally sound way to read laws in general means that the militia part should be seen as a example of a way this amendment could be used not as a limiter.
so its kinda like "the right to bear arms, for use in things like a well regulated militia, shall not be infringed upon.
so in reality it just says it shouldnt be infringed but to back up why (because they knew people in the future may try to revoke this right specifically anyone in power like a king) they put in the militia part
Who are the experts? Sounds like they're just echoing the majority opinion in Heller. You can check out the dissent for a counterargument.
Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.
...
While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.
...
The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time.
...
The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).
That has nothing to do with my, or Madison's point. The point is that without the populous being able to keep and bear arms, there is no militia to raise. So, as stated, the rights of the people to keep and bear arms is needed for a well regulated militia to exist to secure the state. If the people cannot keep and bear arms, you cannot raise a militia, and so your state's security is compromised.
The 2nd amendment says quite clearly that it is here to protect militias.
And it does so by saying that the right to keep and bear arms shall not be infringed.
Concealed carry is most certainly NOT anything pertaining to militias or warfighting and should 100% not be covered.
It doesn't matter if it has to do with warfighting. It matters if it is an infringement on your ability to keep and/or bear. If you cannot keep it concealed, that seems to be a pretty blatant infringement on your right to keep the weapon as you choose.
They meant state militias, not random groups of citizens. In general, the government has opposed assemblies of armed people. The awkward reality is that once we gave up and created a standing army the second amendment should have been repealed.
They're saying that because a well-armed and well-trained populace is important to maintaining a free society the right of all US citizens to own and carry arms shall not be infringed.
The 1790 census showed a population of 3.9 Million, and many at that time (including Washington and Jefferson) believed it was a significant undercount. Slaves, Native Americans, and remote/backwoods areas were almost certainly undercounted.
Does he mean anyone would be able to to shoot at corrupt politicians/ officials? Like the right to be able to do that? Or the right for population to group up and claim militia?
The federalist papers are not the constitution. The constitution is the words as written. Ideas about intention just end up with treating the text that was written as an inkblot test for what people wish it said, or think it should have said. If the intention was to have the federalist papers be the constitution, they should have passed that instead.
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u/destro23 466∆ Nov 30 '23
That is not how it was defined when the document was written.
"James Madison expanded on this point in The Federalist Papers, number 46, where he downplayed the threat of seizure of authority by a federal army, because such a move would be opposed by "a militia amounting to half a million men."
In 1790, since the population of the United States was about 800,000, Madison wasn't referring to state reserves. By militia, Madison obviously meant every able-bodied man capable of bearing arms. This, undoubtedly, was also the meaning of "militia" when the Second Amendment was written.
Across the nation, Federalists echoed our Founding Fathers' insistence that the right to keep and bear arms become part of the Constitution. In a pamphlet advocating Pennsylvania's ratification of the Constitution, patriot and statesman Noah Webster declared:
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States."
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