After all... Black President!

Which explains the blindness part

http://www.huffingtonpost.com/jason-stanford/second-amendment-gun-rights_b_2511711.html

The 2nd Amendment guarantees the "right to bear arms," right? It's right there in the Constitution between the 1st Amendment, which gives people the right to annoy you, and the 3rd Amendment, which is probably very important. (I looked it up. It says soldiers can't crash on your couch without an act of Congress.)

To paraphrase Inigo Montoya of The Princess Bride, we keep using that phrase "the right to bear arms," but I do not think it means what we think it means. As we have a national conversation about guns, it might be nice to make sure we're all reading the same 2nd Amendment.

The first thing you notice when you read the 2nd Amendment is that it's a grammatical mess of bad syntax and vague meaning. Read it for yourself:

"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."

I learned to write a better sentence than that in the 7th grade. First, "well-regulated" lacks a hyphen, and the dependent introductory clause dangles there uselessly, kinda-sorta requiring militias to ensure security but confusing the basic thrust of the sentence. If you squint and tilt your head, you can infer that the 2nd Amendment states that the federal government is not allowed to limit your right to own or carry a gun. Because freedom, or something.

The only thing the 2nd Amendment clarifies is that the worst writing is done by committee. If that were the extent of it, we could rest easy, knowing that Congress intended that they should never mess with my right to keep and bear arms, till death do us part. But here's the thing that makes me think the founding fathers might have needed adult supervision: The 2nd Amendment that's in the Constitution isn't the version Congress voted on. Someone changed it before it went to the states. Doesn't that just make you want to turn the Bill of Rights over and find the treasure map on the other side?

Here's the text of the 2nd Amendment that Congress actually voted on:

"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."

This one's even worse. What's the subject of the sentence, "militia" or "right"? Doesn't this read as if they were dying to get out of town, shouting out phrases, and assuming that the guy writing it down would clean it up? But one wig-wearing slave-owner's self-evident truth is a 21st Century American's confused mess. Do we have an absolute right to a well-regulated militia or to keep and bear arms?

MORE at link...

Good analysis.

It includes a prefatory clause, which announces a purpose, and an operative clause, which, in this case, is a restriction on govt.


A similiar article from the Articles of Confederation:

Article IV
The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states;

First he wanted to shut up those who opposed the Militia clauses in the text of the Constitution itself. The Constitution gives EXCLUSIVE control over the Militia to the Federal Government. These opponents to the Constitution noted that given that CONGRESS will have exclusive control over the Militia, Congress could do what was happening in Britain at that time, just neglect the Militia and see it disappeared to be replaced by a Standing Army (Which in many ways what has happened, so these opponents were NOT that far off the mark).

Madison wanted to shut these people up, by repeating what he had said in the Virginia Ratifying Convention to Patrick Henry, that if the Federal Government does NOT organize the Militia, the States can, and if the States can not, the people themselves can (Which is what had happened in the 1750s in Pennsylvania, the people on the Frontier ended up forming "Associations" of themselves because the Quakers that controlled Pennsylvania at that time refused to form up the Militia).

Thus Madison wanted to make it clear that the Constitution did NOT prohibit the States or the People from forming up Militia Units when the Federal Government did not, and to do that the States and the People must have the RIGHT to obtain firearms and other weapons that are used by any armed force when called into a combat situation.

Second, Madison did NOT want such a right to interfere with the Federal Government's ability to organize the Militia. Most members of Congress had participated in the Revolution, and saw the problems that having more then one caliber of weapon did to your ability to supply your own troops. They also appreciated Von Steuben's "Blue Book" on how the military units were to be formed, for maximum interchangeability between Militia and regular army units (Washington decision to publish the "Blue Book" instead of keeping it secret as Von Steuben wanted, for that was the practice of ALL European Armies of the day). Thus they did NOT want the second amendment to interfere with the Central Government's ability to set what weapons the Militia will have or otherwise interfere with such central planning for the Militia of the US.

A third (through I suspect minor concern) was that the use of the term "Arms" could be construed to undermine the laws as to gunpowder. Under the Common Law, by the 1700s, it had been determined that Gun powder was an inherently dangerous product and as such the courts had determined the old traditional rules of negligence was NOT sufficient when it came to gun powder. In the place of negligence (and the defense that one was NOT neglect or why something went wrong was an "Act of God" as that term was used by the Courts, i.e. something normally outside the control of any single person) the courts had developed Strict liability, i,e, if the gun powder went BOOM, the owner of the Gun Powder had to pay for all damages, even if the boom was caused by something outside the control of the owner, by a third party, or that it could be shown the owner of the Gun Powder did all he could do to make sure the powder did NOT go boom. When it came to Gun Powder the owner was liability for it going boom, not matter the cause.

A related, but probably even less important issue, is the Common Law had also developed the rule that if you fired something (or shot a bow, this law is as old as the days of Archery in England), you were liable for anything the bullet, shot, or arrow hit. That it was an accident was NOT a defense. That it was an "Act of god" due to how the bullet bounced was NOT a defense. The shooter was liable for his shot.

These two concepts are interrelated, it is believe the rule as to Gun Powder came out of the Rules as to Archery. The Archery rule was not as strict, for it concerned only one arrow (or later with firearms, one bullet or one set of shot), but both concepts were well established in the law by the 1780s and the people who wrote the Bill of Rights understood these concepts.

In many ways, what Madison wanted was the Federal Government to organize the Militia, give everyone in it an M-16 Rifle or M4 Carbine. If the Federal Government did NOT organize the Militia, the State or the people themselves could do so, which requires both having access to whatever is being issued to the Regular Armed Forces. Again today that would be M-16s and M4s.

On the other hand, Madison would reject the concept that the second preserved one's right to self protection, found by the recent Supreme Court Decisions. What has that to do with organizing the Militia? Madison would say the Federal and State ban on Automatic Weapons violated the Second, but any ban on pistols, which have very limited use in a militia, would be perfectly constitutional. This is almost the opposite of what Scalia said in his decision on the Second Amendment (and also opposite of the dissents position) but it would fit with the wording of the Second AND the wording of the Militia Clauses in the Constitution itself.

these days the M-9, SIGs, 1911s, etc. Pistols were just one of the arms he agreed the people were to supply themselves with for Militia duty. Very likely shotguns too.

Not so sure he would be all for the people forming their own Militias. Not very well regulated, and while they did serve a purpose on the frontier or when facing slave uprisings, not very applicable these days, and more apt to be an unlawful combination then an effective entity controlled by a government of the people. The people had already granted that power of 'militia organization' to their states, and then to the feds.

I don't think Madison would have rejected the notion of 'self protection'...whether it was specifically enumerated & secured in the 2nd or not. Framers had to figure that in when talking about keeping arms...that the people would have them for their own defense AND the general defense.

Regular line infantry had to have a Smooth Bore Musket (the Assault Rifle of the time period). The act did provide an exception for Riflemen, but only that they could have rifles instead of muskets (At that time period, one out of every six shots were know to misfire, not a major problem with a smooth bore musket, the misfire could be cleared within seconds, but in rifles such mis fire could take the rifle out for minutes at a time, thus muskets were preferred for line infantry units, Washington even issued orders that any Rifle Regiment had to be supported by at least one Line Infantry units due to the reduce fire power of rifle units over musket equipped units).

Pistols are only mentioned in the paragraph dealing with Cavalry, which was restricted to no more then 10% of all Militia units. Furthermore the pistols were kept on the HORSE not the Cavalrymen themselves. IF the Cavalrymen was unhorsed he was expected to fight with a musket (Thus the term "Dragoon" was used for US Cavalry formation at the time period, Dragoons were mounted infantrymen, not traditional saber charging Cuirassiers).

In the Revolution Dragoons were often used like Cuirassiers but more often then not used as infantry or light Cavalry like Hussars (Lancers were NOT popular in the US, to many trees for the lance to get caught up in, the only US Lancer Unit was a Pennsylvania Civil War Lancer unit that kept the name Lancers and some of their Lances to the end of the war, but had become traditional US style Dragoons within a year of its formation). The British used Hussars to gather supplies and terrorize the population, but given the severe horse shortage the British had during the Revolution more a nuisance then an effective fighting force). US Cavalry tended to be almost exclusively Dragoon in style, i.e. more mounted Infantry then Saber Charging Cavalry, and this become more so as the US came under Russian Influence from the 1840s onward (The Russian Cossack had always been more mounted infantry then cavalry, with the invention of the percussion cap (1830) and the Rife-Musket (1854) , both the Russians and the American rarely fought on horseback.

Now, I an getting away from the Revolution and the time period the Second Amendment was adopted in, but just to show the US forces did NOT put reliance on pistols and except for certain elite units (Cavalry) NOT considered Militia Weapons (And the Pistols used were referred to as "Horse Pistols" all much larger then ANY of the weapons you mentioned, for they were intended for one hand operation, but to be carried on a horse, thus smaller then a rifle, but larger then even the revolvers of the Civil War Era).

Sorry, given the problem of SUPPLY, the main concern when the First Congress set up the Militia Act of 1792 was to ease the re-supply of the militia if and when it was called into service (and why the spec for Militia Weapons were based on the French Musket, which by then was the most used Musket in the US Army). You want as many of your Soldiers to have weapons that uses common ammunition, and right now that is the 5.65x45 round. Certain units may need something else (7.62x52 for Machine guns for example, 12.7x99 for heavy machine gun) but you want to minimize the number of ammo in the supply change as much as possible (Thus the .45 caliber 1911 was replaced by the 9mm, not because it was better, but 9mm was the caliber used by our NATO allies).

Also remember the role of the Militia at the Battle of Yorktown, which was to dig the entrenchments under the guidance of French Engineers. Any old musket was good enough for them, but pistols would have been useless (in fact less effective in any combat then the Spades and shovels they were using to dig the entrenchments, spades and shovels do NOT have to be re-loaded). Today, Pistols have greater firepower, but so do shotguns and rifles, and given a choice between the three, it is a rifle you want in combat.

No, Madison would have said it was OK to ban pistols, as long as rifles are available on the ground in most normal combat situation the rifle would be that much more effective. In fact Madison would have agreed to a ban on Pistols, if the intention was to encourage people to buy M16s instead. Shotguns are more effective then pistols, but not as effective as M16s in most combat situations, and thus better then nothing (and the only weapon you mention that MIGHT be a better weapon then a long Handle Spade in most combat situations).

The Wording of the Second, reflects the concern of Madison and the other Veterans of the Revolution which was one of Congress NOT organizing the Militia, given Congress had EXCLUSIVE control over the Militia. The wording is a safe guard, if Congress fails to do its duty, the States or the People can do it themselves. It is NOT to protect people rights to firearms OTHER then to preserve people's ability to get firearms if and when they decide to form themselves into a Militia when Congress or the States refuse to do so. Hunting was NOT a concern, Self protection was NOT a concern when the Second was written, the concern was the Militia itself as an independent organization. That is what the Second Amendment wanted to preserve and why it is between the First and Third Amendment.

Lets remember the Militia was not only a Military formation, it was also a Political organization (In fact the Democratic Party of Jefferson was organized along Militia lines, for the Militia existed and could be used to direct people's political formation, this tradition continues to this day, you see a lot of Militia terms in the political parties, such as "Precinct Captain" when it comes to political parties&quot . The Whiskey Rebellion came out of the Western Pennsylvania Militia (as did the subsequent embracing of the Democratic Party of Western Pennsylvania during the 1790s). Congress wanted to preserve not only the Militia's military role, but this political role and thus why it is second in the Bill of Rights.

only exist if that non-feasance occurs?

Can the people supply themselves with arms even if the congress performs its duty with respect to regulating the militias?


Why do you refer to the Militia as an 'independent organization'? They were "the Militias of the Several States", State entities that existed before the Constitution and the 2nd recognized and secured them. And as you noted, to some it appeared "exclusive control" over them was giving to the Congress, atleast as for regulating them. It seems they weren't very independent at all. Or do you mean independent from the central govt?

It was eventually decided it was important to ensure the people were not dependent on the federal government for their arms, as they could then be easily disarmed. Though they would otherwsie be dependent on the new govt for how they were to become well regulated. Is this 'supplying their own arms' (in accordance with Congressional guidelines) the independence you mean?


ETA: oh yeah - are pistols to be allowed for Militia officers, as is common practice these days in the standing armies? or not worth it if someone decides a ban is preferred (M-4s instead)? Current supply of the armies * navy include all kinds of specialty weapons for different branches and services and units...if the goal is the most effective militia possible, why would the Militias be treated to less?

For the Militia was an independent Political organization in the 1790s (Jefferson's Democratic Party came out of it) for that is how it was organized. Due to America being overwhelming rural at that time period, the common practice was to organize Militia units around the local population. You went to the local town on Sunday Morning and went to church, all the Churches were around the town center. After Church the males would gather in the town square and drill. In New England and most of the East Coast, Church membership was an issue of Colonial law, and thus you tend to have one Protestant Church at the town square with the other Protestant Churches elsewhere in town (In New England these other Protestant Churches were quit small, in the South the dominate Church was the Church of England/Anglican Church instead of the Congregationalists that dominated New England.

Given this situation, during the Colonial period it was not uncommon for people to go to Church on Sunday, then drill with their fellow religions after church on the town square. Thus Militia Membership and Church Membership tended to be one and the same.

Churches were in the Colonial period political organizations, that is why Freedom of Speech and Assembly is tied in with Freedom of Religion, all three interacted with each other at that time period. We do NOT view the Revolution as religious in nature, but people who supported the Revolution (Congregationalists, Presbyterians, Methodists) tend to be from certain religious backgrounds, while people who opposed the Revolution tend to be other religions (Quakers, Anglicans/Episcopals), while people of other religions (Lutherans and Catholics) tend to support whichever of the Protestant groups that supported or opposed the Revolution was dominate in their area (This ended up being mostly Congregationalists, Presbyterians, Methodists) Even the participates in the Revolution did not view the Revolution as religious in nature, but also recognize that religions help determined who supported what during the Revolution.

Due to the Stresses cause by the French and Indian wars and later the Revolution a change in how towns were built changed during the 1750s to 1800 period. Town squares still existed, these remained drilling grounds for the local militia, but the town square tended to have two, and often more, churches around them. This reflected that a lot of recent immigrants were NOT of the religion of the first settlers, and thus an effort was made to make sure all of the religions were accommodated. Ben Franklin helped this attitude along by belonging to at least four to five churches of different religions, which he used to meet people.

Thus you had greater tolerance for different religions, but at the same time increase pressure, first from the French during the French and Indian War, and later the British during the Revolution. This in turn lead to the change in small town building after 1750, more then one church was build along the town square, which remain the place for the men to meet for their Militia drilling. Thus you tended NOT to have towns and rural areas of one religion but areas where you had many religions. At the same time you needed get people to work together to build the town. To do so people have to talk together and with this greater tolerance for different religions, churches were no longer a place where everyone went to, and thus could no longer be used as the place people could meet.

On the other hand, the Churches were all around the town Square, and the Militia drilled at the town square, thus slowly after about 1750 the Militia started to become the place to meet and discuss politics. Thus you had a movement from the Churches as the foundation of Politics (For that is where people meet) to the Militia, for that is where people meet.

Now, when I am using the term "people meet" I mean where MOST people of the area (if not ALL of the people) meet, interacted and had the freedom to discuss the issues of the day (people could meet and interact while shopping, but most shoppers do NOT discuss the big issues of the day when they are shopping, such discussions are done elsewhere, prior to 1750 mostly in Church during or after mass, after 1750 more and more during the Militia drill).

On Sunday Morning the men would go to different Churches with their wives and families, but drill together afterward. Even today, in most small cities and towns from the Mountains of Pennsylvania Westward, you see these Protestant churches around the town square (Catholics were not a large population in the US till after about 1830, thus tended to build they Churches a little further away due to all the land around the town square was owned by someone else when it came time for the Catholics to build a church).

Thus by the 1790s, the Militia, especially on the Frontier, had become an independent political organization, just like the Church still were. During the Drill, it was common for the men (and their wives who watched them drill) to discuss political during drill breaks. They discussed politics and other things that were of interest to them during the meals that was part of the drill. After the drill was over, many of the men were stay around and talk with their fellow militiamen, and such talks included politics.

The Whiskey Rebellion of Western Pennsylvania did NOT come from the Churches (Where most if not all previous political movements had started, including the American Revolution) but out of the Militia. The Militia did NOT cause the Rebellion, but it was a place where people of common minds meet, discussed the problem and decided to act as a group (Just like people did in Churches in previous political movements in the US). This is what I meant by calling the Militia an Independent Political organization, for it where the people who rebelled in Shay's rebellion and later in the Whiskey Rebellion organized themselves found that they had common cause with other people and decided to work together to solve that common problem.

You see similar meeting of people with things in Common, among the occupy Wall Street groups. The Occupy Wall Street groups tended to be Collage age who meet on the net and discuss they common problems. Once the problems were discussed they decided on a common solution. The Militia provided the same function, through in a different format during the 1780s and 1790s. Just like the net can be an independent political organization, so was the Militia during the late 1700s and early 1800s. Yes, the Militia was formed by the State, the fact that it existed and people had to participate also made it a political organization. Given that the militia was formed locally of ALL the males in the area, it was an independent political organization of those men, their wives and their families.

...but one needs to be careful when predicting what an 18th century person would think of a present day matter.

when something is open to endless speculation and misinterpretation, it is badly written

It's called amending the constitution.

obviously

but the second amendment is to be taken literally?

if the process were the same as today and every person in the states (slaves not included) voted, by a total population of less than twice that of Jacksonville, FL. (US pop in 1791 = 3.9Million-750K slaves = 3.15Million/2 = 1.575Million/2 = Population of Jacksonville, FL.)

Of course it was fashioned after the 1689 English Bill of Rights which said a Standing Army could not be maintained except in time of war. I guess that wasn't a good idea in 1791?

Having an Assault Rifle over the mantle was.

even though several states wanted them. Madison knew that any restriction would be ignored if "opposed to the decided sense of the public":

James Madison to Jefferson, 1788


Hence the security for ensuring effective Militias, to avoid the pretext for maintaining standing armies.

ETA: Of course that never turned out as well as the founders hoped, as not too many took the duty/right of bearing arms all that seriously.

keep and bear arms 'on the streets' as in open carry and in public places laws.
which need to be overturned.
Another one is: its against the law to have more than two bullets in your gun in duck hunting
Unlimited bullets in hunting people. I get so sick of people saying "keeping guns out of the hands
of BAD people or criminals".
IMO all guys are 'good guys' with a gun, even the mentally challenge ones, until they pull the trigger.
and there are plenty examples.

it seems to mean everyone has a right to belong to the state National Guard which someone may complain is over-regulated to little avail. As to where the arms are stashed, well, the regulations have them in armories. Keeping tanks, jeeps, assault rifles, ammo in your home would be pretty much an example of under regulation. Jonathan Adams, 1812, might have been keeping the town cannon in his barn, but pretty much the soul exception back then would be for the personal rifle and pistol. It seems like the current defenders and expanders of this language have it wrong.

No locality, much less a private group, seems to want to have their own militia by National Guard standards ready at the beck and call of the governor, President or other national official. By no means. They want no regulation at all, just that perpetual state of readiness to maybe belong to a regulated body if someone decides to try to mobilize them.

Insurrection is still insurrection(Whiskey Rebellion). Well-regulated there is moot. Necessary utility and lethality and the common good are not checked as reasons for the other pre-militia condition, that is, which arms are allowed for sale in the first place. Is this the only amendment where the entire rest of the Constitution should have been paraphrased to protect itself from an abusive interpretation?

The modern use of militias has never been mentioned because it gets more to the roots of the first and final aim of the amendment- and might close the loophole the entire gun industry has jumped into. Private militias always seem to be dangerous crackpots worse than the early insurrectionists who sprang from the custom of colonial militias. Regulation led us to the National Guard which at the hands of certain individuals has been used for, and sometimes against, the rights of the public, usually a combo depending on point of view and- worse- drafted into foreign wars not for the national defense and actual war crimes(Iraq). Neither is anyone bloviating about regulations in the National Guard or applying for a legitimate militia. On the contrary, secret militias formed by the government for secret purposes have been a "modern" problem(Cubans to invade Cuba) and though not so well regulated perhaps, probably did not fill Miami with assault rifles in every member's home.

Those dangerous issues do not get people all hot and bothered. Nor is the possible interpretation that not all arms can be kept at home as a logical pre-condition of militia readiness. Stockpiles, artillery, lethal for military use only. If you don't need a gun for hunting, peashooters have becomes less than irrelevant. Nothing you can sequester at home can protect your rights if the controllers of the militia and its armories tyrannize the populace and are themselves against the principles of the Constitution. Insurrection is still insurrection in that frustrating case too. No one seems to be able to clear the muddy language to point out the material condition(no private arms can really constitute much of a militia much less an insurrection) has changed the protected rights situation beyond redemption. The right to self protection and the hunting rifle do not belong in the Second Amendment at all, the purvey of localities with special problems and tailored "regulations".

To right the citizen/government balance you would have to shrink the dangers of the abuses of government that have us left with a mammoth, professional standing army, secret armies, private corporation Hessians, entangled alliances whoring out for global money interests, super weapons that to possess is actually a clear and present danger to the entire planet, the snake devouring tail effect on democracy per se by such militarization. Participation would have to actually become more widespread and important and relevant. The military power of the individual or group has shrunk to nothing in regards to arms. Only the assaulted and lazily practiced right to vote remains for issues dear to the potential citizen soldier. These people only vote, in a regulated way of cpurse, on the gun issue. A moronic circle par excellence.

And one man, one vote, one rifle(for the missus too). Except none of these yahoos are protecting the vote any more than re-balancing military power of the individual to serve in a relevant militia. This clock will not turn back, nor do they iterate the real issues. Yet they attack all other rights of all other citizens, the common good, the common order and hint darkly in absurd impotence at insurrection. The regulations simply serve in the irrelevancy to protect lawful peace and order. By a convenient and moronic twist they wish to argue there is no need for regulation at all then if it has nothing to do with militias.

Makes about as much sense as encouraging people's rights to civilization ending gas guzzlers SUV's. We have a right to nation destroying madness? Rhetoric yes, and madness is vastly overrepresented in the free to steal debate on behalf of corporate greed which led to the Revolution in the first place. People who should be excited about that modern inequity should stop supporting the other side, which is tyranny, entitled plutocracy and death dealing enslavement. In this one loophole they make their cowardly stand for their acknowledged masters- who will treat them like the fools they are.