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Amazing. To be a judge much less a justice of the Supreme Court of the United States, one has to be really dedicated to researching and writing about law to have the energy and enthusiasm to write such a long piece. This dissenting opinion kind of brings up the argument over what the Founders were really thinking about back in the day which might or might not have been reflected in the Constitution. This is why I don't think the Heller decision really settles the 2A debate. In fact I think interpretation is bound to see-saw back and forth just like interpretation of so many other parts of the Constitution.
A SCJ is permitted up to 4 law clerks, and they play a large part in drafting opinions. Last time I was in DC at the SC building, I bought a book at the gift shop about the history, etc., of the Court. It said sometimes opinions are rewritten a dozen or so times before submitted to the Reporter of Decisions.
I think big corporation saw big money oppotunity, brainwashed a few, NRA was established.. and suddenly this 1776 law is the most misinterpreted law in the US.
I think the founding fathers more or less meant it as, you can have a gun to protect your family because in the 1770s they were fighting a war with the strongest militia in the world known for ransacking towns and cities. I dont think they meant it as anybody can get whatever type of gun they want and protect themselves with it with all the socialist programs we have today. (Goevernment, Polcie Officers, Law Enforcement, etc). Like when this ammendment was established, the US was barely a thing, and survival was on the brink of collapse and more likely to fail than succeed.
The NRA was established in 1876 because a group of men(it was always men at that time) saw a pressing need for marksmanship training, as the US Army of the time was pretty awful in that regard, especially as newer and better rifles appeared on the scene.
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Originally Posted by Urban Peasant
Ah yes, the Heller Case. I had heard about it but have never read up on it until now. After reading its summary however, all it does is affirm one of my points that I had made in my original post, that the Second Amendment still permits individuals to keep and use firearms to protect their homes and businesses but there may be laws on other limitations:
"All of this could be avoided if only police and military get to openly carry arms while on duty and ordinary citizens including off-duty police can only use concealed firearms to protect their homes or businesses but not discharge them on public streets"
I've studied constitutional law in college and I hesitate to take a court decision like this as the last word however, especially because it was only a 5-4 ruling. Somewhere down the road, the SCOTUS might re-interpret the law differently and decide differently.
But as to the interpretations of what our Founding Fathers interpret as militia as the website you shared suggests, well they are all up for interpretation. I remember reading somewhere years ago that Benjamin Franklin helped form armed militias (i.e. bands of armed citizens for the purpose of self-defense) from ordinary citizens in Philadelphia because law enforcement was so lax at one time. That type of militia of course can be interpreted differently than merely "all citizens capable of military service" as Justice Scalia interpreted the Fathers to mean at the time the 2nd Amendment was drafted. I mean that is an instance of a regulated militia rather than a free for all policy. We can debate about what constitutes a militia some other time though because that can be a whole other discussion outside of the Second Amendment debate.
The operative words of the Second Amendment are "The right of the people to keep and bear arms shall not be infringed", the militia clause is one justification. Everywhere else in the Constitution, the words "the right of the people" are used to indicate an individual right, not a group right.
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Originally Posted by The Very Man Himself
What you're saying is when I go to the dictionary I'll find the definition of "regulated" = "trained" = "regulated". Wanna bet?
It depends on the dictionary. The Oxford English Dictionary might have the meanings going back to the founding of the US, and would tell you what others have said, that well regulated meant well trained and operating correctly, much like a clock of the time was said to be well regulated if it kept good time.
Can you please state how you might differentiate between a militia and vigilantes?
Certainly, Vigilantes are normal citizens that (on their own) decide to become judge jury and executioner...they also decide who is guilty, they work alone, and make all the rules as they go.
Militias are something else entirely, not even close to vigilantes, militias ultimate responsibility is to safeguard the public, against a Govt, should it ever become tyrannical, or try to enforce tyrannical/unconstitutional laws.
The 'Militia' would determine when tyranny has gained a foothold and determine when its time to take up arms. Basically they were supposed to be the eye in the sky, that keeps an eye on our Govt, to make sure it stays within its intended boundaries.
Certainly, Vigilantes are normal citizens that (on their own) decide to become judge jury and executioner...they also decide who is guilty, they work alone, and make all the rules as they go.
Militias are something else entirely, not even close to vigilantes, militias ultimate responsibility is to safeguard the public, against a Govt, should it ever become tyrannical, or try to enforce tyrannical/unconstitutional laws.
The 'Militia' would determine when tyranny has gained a foothold and determine when its time to take up arms. Basically they were supposed to be the eye in the sky, that keeps an eye on our Govt, to make sure it stays within its intended boundaries.
I think that one of the main purposes of our Constitution was to divide power between the Federal Government and the States -- not between the States and individuals who decide to take the law into their own hands.
I still cannot see the difference between what you might call a "militia" and what others might call a "group of vigilantes" when you appear to be stating (see your previous post below, and I apologize if I'm somehow misreading what you wrote) that a militia should ultimately determine what laws are "unconstitutional." Vigilantes, too, believe that they are "above law enforcement."
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Originally Posted by rstevens62
In my opinion, this 'militia' would be above law enforcement, (police would have no authority over them).
Its the only way they could be effective really. Law enforcement is going to enforce laws that our govt creates...so naturally the militia would have to be above them.
Last edited by Rachel NewYork; 08-31-2020 at 03:46 AM..
Notice the first part says that if a militia is formed, it has to be well regulated which means it ought to be officially sanctioned by the government.
In 1789 the term "well regulated" did not mean "subject to a bunch of government regulations". It meant that people should be trained in how to use firearms.
Remember that the point of the 2nd Amendment was for the citizens to be able to rebel against the government if it ever became necessary. Therefore, in the context of the Constitution, one cannot argue that the government should tell you not to own firearms, how to use them if you do, or how your local militia operates.
I am not against the Second Amendment in its entirety but I feel that it is seriously misinterpreted by a great many individuals over the years. Here is the text as reprinted from my encyclopedia:
"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"
Notice the first part says that if a militia is formed, it has to be well regulated which means it ought to be officially sanctioned by the government.
I do not have the time nor inclination to get deep into this with you, but will say you will be well served to read the Federalist Papers. That will help to put you into the mindset of those who wrote and ratified the constitution.
This is very important, because modern day understanding (by the lay person)of the meaning of words, terms, etc., is much different than when our governing document was written.
I can tell just by the way you inject your thinking as what constitutes a militia, that you lack some understanding.
For example, the "militia" back then was not a standing army run by state or national government. It was every single able-bodied man.
The term well regulated was to say they should be armed and in a state of readiness if needed to defend our republic, from enemies, both foreign and domestic.
Remember, many of our men fighting the British were simple farmers, clerks, etc., with little to no experience at war. Quick armorment and training was need to make them part of our newly former fighting force.
After we won our independence, the constitution envisioned not a standing army (the Framers were afraid of a federal standing army), but the ability of average citizens to assemble if needed, ready to fight.
I could go on, but read what the actual Framers thought, penned in their own words, and that will help you to better understand their views/vision.
In regard to the formation and management of a militia, please note that Hamilton's intent was that there should be a certain amount of government involvement (divided between Federal and State) in this undertaking: "It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union 'to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.' " (Quoted from The Federalist No. 29, "Concerning the Militia" -- upper case quoting is not mine, but Hamilton's instead, presumably for emphasis.)
Last edited by Rachel NewYork; 08-31-2020 at 10:37 AM..
In regard to the formation and management of a militia, please note that Hamilton's intent was that there should be a certain amount of government involvement (divided between Federal and State) in this undertaking: "It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union 'to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.' " (Quoted from The Federalist No. 29, "Concerning the Militia" -- upper case quoting is not mine, but Hamilton's instead, presumably for emphasis.)
For govt to be involved with the militias would be a huge conflict of interest!
For govt to be involved with the militias would be a huge conflict of interest!
Whose interest? That of the U.S. citizenry who vote for our government representatives -- or that of disgruntled individuals of whatever political persuasion who have decided to take the law into their own hands?
Let's get this out of the way so that we can focus on the 2nd Amendment's meaning.
What is the militia?:
10 U.S. Code § 246 - 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.
This law establishes a minimum age of 17. The "under 45 years of age" does not exclude those older than 45, just removes the compulsory obligation. Same for females; not excluded, just not mandatory to be a part of the militia.
The important distinction is that the state's National Guard (formerly State Guard) is not the only militia, as some have tried to interpret in this forum.
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