Breaking down the Second Amendment (Read 3407 times)

2aHawaii

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Breaking down the Second Amendment
« on: October 01, 2009, 09:41:08 PM »
For those unfamiliar with the Second Amendment, the wording is as follows:
Quote
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.
What many gun supporters often miss in the right to bear arms is the first phrase, "A well regulated Militia," and the opposition often picks up and this. They often say that only members of a Milita, or the Military, are granted this right. So let's look at what the US code says:
http://codes.lp.findlaw.com/uscode/10/A/I/13/311
Quote
(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 despite what people think, a Militia is not only the Military, it consists of an unorganized militia, or normal everyday citizens of the United States.

On the other hand, with the way the punctuation is arranged gives two separate ideas that are important:
Quote
A well regulated Militia, being necessary to the security of a free state
and the other
Quote
the right of the people to keep and bear Arms, shall not be infringed
The first idea is a statement about the state of the "country" at the time. The colonies were dealing with a repressive King that imposed taxes and laws from across the ocean that they had no control over. The founding fathers knew that one way to keep the governing body in check was to have its citizens be able to protect themsevles against tyranny.

And the latter idea is where we are granted our right. The right of the people, that includes all citizens of the United States, have the right to bear arms and there shouldn't be any infringements of those rights.

I hope all this makes sense as I wrote it on the fly. What do you guys think?
I am not a lawyer.

"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." - United States Constitution Amendment 2 & Hawaii State Constitution Article 1 Section 17

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Tom_G

Re: Breaking down the Second Amendment
« Reply #1 on: October 02, 2009, 09:23:15 AM »
Succinct and articulate. 

We, of course, embrace the idea that we're part of the unorganized militia.  Although I plan to live my life without having to serve, should the day come when I'm needed to fill sandbags, deliver food, or stand on a wall with M1 Garand in hand, I will not shirk. 

I've often marveled, though, that the anti-gun forces haven't tried some end-run around based on the definition of militia.  Really, it's quite clear, if you're under 17 or over 44, you are excluded from militia service, and presumably no longer need arms to bear.

Maybe I shouldn't commit that idea to the internet... after the SOCUS incorporates the 2nd inth the 14th, the antis will be looking for a new approach!
The difference between theory and reality is that, in theory, there is no difference between theory and reality.

Anubis

Re: Breaking down the Second Amendment
« Reply #2 on: October 03, 2009, 09:51:31 AM »
Last year's Heller decision explicitly declared that 2A referred to an individual right not limited by the prefatory clause about militias, so no need to beat the dead horse of "2A is only for organized militias".

The McDonald case will decide only 1 thing: whether Chicago's total handgun ban is legal.  The Supremes can do this only by incorporating 2A in 14A, thus holding this right against the states like has already been done for other rights listed in the Bill of Rights.

The only things we're going to get out of McDonald (if it goes our way) is (a) incorporation and (b) Chicago and other cities or other states can't keep us from having firearms for self defense in our homes.  No direct help for Hawaii.

I think, however, that a future case can build on this by arguing, in essence, "OK, if armed self defense is legal in the home, then it must be legal outside the home, that's what 'bear arms' means in 2A, hence the minimum requirement must be 'shall-issue' everywhere".
« Last Edit: October 03, 2009, 09:58:51 AM by Anubis »
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