It's about Civilian Control of the military, no matter how much you want to pretend it isn't

In this case, the Second Amendment analogue comes from Virginia.

Delegate Mark Cole has proposed to amend the Virginia Constitution, to explain that the right to keep and bear arms is an "individual right", not connected with militia service. This would align with the new SCOTUS decision in Heller, where they argued that the first part of the 2nd amendment was not connected to the second part. HOWEVER, the language of the Virginia Constitution on this subject is much more difficult to dismiss:

Article I. Bill of Rights
Section 13. Militia; standing armies; military subordinate to civil power
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Look carefully and you will see the word "therefore" between the militia reference and the right to keep and bear arms. Not sure how they can be separated when they are joined by a very explicit "therefore". In addition, the explanation would reference "self defense", "hunting" and "any lawful purpose" - all things that are not mentioned, or even hinted at, in the VA Constitution. Just look at the title and tell me that the writers were thinking of individual self defense, etc.

If Delegate Cole wants to explain Section 13, he could start by explaining why we have totally ignored the phrase: "that standing armies, in time of peace, should be avoided as dangerous to liberty"!!!!!

The problem is that the issue of civilian control over the military is a major topic in democratic societies, with it having a healthy debate during the 17th, 18th, and 19th Centuries (and even now).  People who supported militias believed that they would not be turned into standing armies; however, history has shown that militias usually become an army if there is a long term conflict (e.g., English Civil War and American War for Independence).

As I have said before, the militia system was moribund by the time of the American War for Independence as Adam Smith pointed out in his Wealth of Nations:

A militia, however, in whatever manner it may be either disciplined or exercised, must always be much inferior to a well-disciplined and well-exercised standing army.

It is poor policy to take an obsolete section of the US Constitution which was intended to deal with matters of the common defense and turn it to the detriment of promoting the general welfare.

Gun rights page taken down

Remember? The one I mentioned in this post with this picture:

Sure, you want to say this is a fake, but it was yanked by the owner:

He blamed it on "anti-gunners".

I guess there aren't any responsible gun owners out there.

Does this mean that if we don't like who won the election--we can kill them?

Seriously, from a "gun rights" asshole's page:
https://www.facebook.com/WeLikeGunRights/photos/a.148177891997744.34524.148177061997827/404511309697733/?type=1&permPage=1

Alas, the link is broken, but

This is something from the page's owner that verifies this is his opinion.

Anyone who believes this shit knows nothing about the US Constitution or its history.  The founders could have just said "fuck it" and not bothered with drafting a constitution if they felt this way.  The US would be even more of a piddly insignificant country than it is already.  It would be in there with the rest of the Central and Southern American countries if they wanted to see this.

In fact, given that the French Revolution was going on at about the same time the US Constitution was being drafted, they could have gone full out crazzzeeeee!

"We are ze Republique, not ze Democracee!"

But, they didn't.

Now, why don't you people get your shit together?

Quote of the day

The quote of the day is the interview with Chief Justice Warren Burger.

CONVERSATION: CHIEF JUSTICE WARREN BURGER - Dec. 16, 1991
From MacNeil/Lehrer News Hour
MS. HUNTER-GAULT: Some scholars have argued that the Bill of Rights is still flawed, that some of its provisions need reconsidering, that it's over rated. How do you respond to that?

JUSTICE BURGER: That is as with anything in this life, it could be better here or there.
MS. HUNTER-GAULT: Like where, for example?
JUSTICE BURGER: Well, that's a harder one to answer. If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment.
MS. HUNTER-GAULT: Which says.
JUSTICE BURGER: That says a well regulated militia being necessary for the defense of the state, people's rights to bear arms. This has been the subject of one of the greatest pieces of fraud, I repeat the word "fraud," on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia -- if the militia, which was going to be the state army, was going to be well regulated, why shouldn't 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It's got to be registered, that you can't just deal with it at will. Someone asked me recently if I was for or against a bill that was pending in Congress calling for five days' waiting period. And I said, yes, I'm very much against it, it should be thirty days' waiting period so they find out why this person needs a handgun or a machine gun.
MS. HUNTER-GAULT: What about the opinion polls, finally, that suggest that the Bill of Rights would not be popularly supported if it were up for ratification today?
JUSTICE BURGER: I don't believe that at all. I don't believe that at all. In fact, I think it's a little bit ridiculous. Any poll can be manipulated by how the question is asked and if you ask some active member of the NRA if the Second Amendment should be changed, of course, he or she would go up in the air.
MS. HUNTER-GAULT: That's the National Rifle Association.
JUSTICE BURGER: Yes. I don't want to get sued for slander, but I repeat that they have misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see -- and I am a gun man. I have guns. I've been a hunter ever since I was a boy.

Quote of the day

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Scalia, DC v. Heller.

It's also not your place to reinterpret the US Constitution and trash centuries of legal precedent.  Remember, Judicial review is a custom, not an actual Constitutionally created power.  And the same source for Judicial Review says that "It cannot be presumed that any clause in the constitution is intended to be without effect." (Marbury v. Madison, 5 U.S. 137 [1803])

Quote of the day

If we yielded to this contention of the plaintiff in error, we should render the sections invalid by giving them a strained construction, which would make them antagonistic to the law of congress. We cannot attribute to the legislature, unless compelled to do so by its plain words, a purpose to pass an act in conflict with an act of congress on a subject over which congress is given authority by the constitution of the United States. We are, therefore, of opinion that, fairly construed, the sections of the Military Code referred to do not conflict with the laws of congress on the subject of the militia.
        --Presser v. Illinois, 116 U.S. 252 (1886)

Why Presser v. Illinois is the progunner's worst nightmare.

Of course, Scalia dismissed it in his exposition of mendacity called District of Columbia v. Heller, 554 U.S. 570 (2008), but he also dismissed such pearls as:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

and

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive

Since they "weren't helpful".

That's putting it mildly--they totally contradict your position.

After all, why not dismiss anything which shows that what you are saying is total bollocks?

The American people are too happily ignorant to notice anyway.

Anyway...

Presser basically is making the same tired argument we hear over and over about being part of an unorganised militia, except that term didn't have actual currency back then in US Federal law.  The court tossed that argument since Presser wasn't part of the enrolled militia.

Even better, Presser actually addressed the incorporation issue.  If Heller is a joke, then McDonald v. Chicago is even worse of a joke since Presser came to the correct conclusion about the matter:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265]   and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

Yeah, the Second Amendment relates to congress' power under article I, Section 8, Clauses 15 & 16--not state power.

I thought that Alito was on the ball when he asked if congress' power was "plenary" in the Heller.  Yeah, it is which means that the answer is:

The right is related to the militia and congress' power to arm it

Seriously, you had it right in US v Rybar, 103 F.3d 273 (3d Cir. 1996), WHAT MADE YOU GO FOR THE INTELLECTUALLY DISHONEST POSITION??? DIDN'T THINK YOU WOULD GET CAUGHT????

Back to the story,  Presser concerned people openly carrying while pretending to be a militia and claiming their Second Amendment right, but the court swatted it down saying:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266]   it clear that the sections under consideration do not have this effect.

Oh dear, it's that nasty civic right interpretation.

And, unlike Justice Stevens' version, this one actually got it right on incorporation.

Presser even compares the First Amendment claim:

We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The only clause in the constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company, is found in the first amendment, which declares that 'congress shall make no laws ... abridging ... the right of the people peaceably to assemble and to petition the government for a redress of grievances.' This is a right which it was held in U. S. v. Cruikshank, above cited, was an attribute of national citizenship, and, as such, under the protection of, and guarantied by, the United States. But it was held in the same case that the right peaceably to assemble was not protected by the clause referred to, unless the purpose of the assembly was to petition the government for a redress of grievances. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.

By now, I am laughing my arse off since this case is a serious nugget when looked at in relation to the farce that is Heller-McDonald.  Combine Presser with Miller, and Heller-McDonald is the serious odd man out.

As I have been pointing out, it is a tough stretch to say that carrying weapons in public outside the national defence context is protected (again, the US Constitution makes it clear it addresses NATIONAL Defence and no where mentions self-defence).

I keep mentioning that if the law is silent on the topic, one cannot assume or imply it is somehow addressed, which is something else Presser mentions:

Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

In the case of the Second Amendment, it is silent on personal uses if firearms, unlike state constitutions which specifically mention self-defence.  That was something Justice Stevens pointed out in his dissent.  In fact, some State Constitutions  offer a greater level of protection for "gun rights" than the US Constitution.

Anyway, I think Presser makes it pretty clear the right is tied to militia service:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268]   authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

As a nation has the right to national defence, a state has the right to legislate for the general welfare.
The ability to regulate or prohibit arms is something which is necessary to the public peace, safety, and good order.
 
It is not for judges to make law, but to interpret it.  It is even less their place for judges to amend the constitution outside the written constitutional framework.  The court went well beyond any constitutional powers that it was granted  by making this decision for there is no constitutional provision which allows for judicial reviews of laws (that comes from Marbury v. Madison, 5 U.S. 137 [1803]).

I keep wishing that someone with more academic clout/prestige would take up these arguments, but it seems that I am the little boy who is saying the emperor has no clothes here.

But, I have loads of evidence he is as naked as a jaybird.

William Rawle on the Second Amendment

NOTE:   The right judicially created by the Heller-McDonald cases does not extend beyond the curtilage (boundaries of the home).

I've been quoting William Rawle a lot lately since it is pretty much a given that there is no right to walk about carrying weapons in such a way that is likely to commit a disturbance of the peace  (see Blackstone, Commentaries on the Laws of England, Chapter XI. Of Offences Against the Public Peace).

William Rawle explains this in relation to the Second Amendment in his treatise "A View of the Constitution of the United States", 125--26 1829 (2d ed.):

"This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."

In other words, people are well within their rights to call the police if they see someone carrying a weapon in public:  after all, that is the police's job to deal with people who could possibly be causing a breech of the peace.

In fact, there are some seriously good legal precedent that say someone carrying a weapon in public must give surety, or at least have some form of licence.

While the Cruikshank case isn't really useful for Second Amendment precedent, the Presser case sure as hell is where it says that the government has the right to licence the carrying of weapons outside the Militia context.

Also, it's interesting that people cite to Rawle and call his treatise a landmark text.  They even mention that Rawle says that the Second Clause is a corollary clause, yet they miss that the word "corollary" implies a relationship:

a statement that follows readily from a previous statement.

In other words, there is a relationship between the first and second clauses of the Second Amendment, whether people want to admit that these days.  The Miller Court reiterated that when it said, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

And, as Presser pointed out:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268]   authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

I find it hard to say that carrying arms in public outside of the militia/national defence context is in any way a protected act by the Second Amendment.

Heller is wrongly decided and does not properly follow the Second Amendment Jurisprudence as set out by the Supreme Court.

the 64 Million Dollar question!

If the right to keep and bear arms is so important: why didn't Maryland, New York, and New Jersey from the original 13 colonies adopt these provisions in their constitutions?  Indeed, why do only 44 states have such provisions.

California, Iowa, Maryland, Minnesota, New Jersey, and New York do not have "right to keep and bear arms" provisions in their state constitutions.

I would add that one of the original colonies also added this provisions to its constitutions in recent time (Delaware).

Here's a sampling:

• Connecticut:  Every citizen has a right to bear arms in defense of himself and the state.  Art. I, § 15 (enacted 1818, art. I, § 17).  The original 1818 text came from the Mississippi Constitution of 1817.
• Delaware:  A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.  Art. I, § 20 (enacted 1987). 
•  Massachusetts:  The people have a right to keep and to bear arms for the common defence.  And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.  Pt. 1, art. 17 (enacted 1780).
• New Hampshire:  All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.  Pt. 1, art. 2-a (enacted 1982).
• Pennsylvania:  That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.  Declaration of Rights, cl. XIII, 1776.  
• Virginia:  That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.  Art. I, § 13 (enacted 1776 without explicit right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed" added in 1971).
• Rhode Island:  The right of the people to keep and bear arms shall not be infringed.  Art. I, § 22 (enacted 1842). 

Of these, I find that Massachusetts provision relates only to arms for the common defence and mentions the standing army issue.  In fact, I see that the standing army issue is mentioned in a few of the other original colonies' provisions.

As I said, if this was such an important issue and personal guns were so important: why aren't they mentioned?

Seriously, wouldn't this be top on the list of everybody, the way pro-gunners like telling us how important this "right" happens to be?  Also, why the mentions of the common defence and standing armies if this is about a "personal" right to arms outside that context?

As I said, if you look hard, the pro-gun arguments start to fall apart.

Footnote to this, I didn't add some of the Southern States since the provisions I found appear to be from after the Civil War.

Additionally, this was not an exhaustive study of this topic.

Sources:
State Constitutional Right to Keep and Bear Arms Provisions
NRA-ILA | Guarantees Of The Right To Arms In State constitutions

Meet Presser v. Illinois, 116 U.S. 252 (1886)

I am amazed at how much the Second Amendment debate is held in ignorance: in particular, this case should be front and centre.

I should add that as long as the "civic right" interpretation of the Second Amendment is out there, this is still a valid case.  In fact, while the Heller-McDonald line of cases said this may no longer be applicable, the fact that the court said that "to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same" would relate to public order means that this is a very relevant case to a world where people want to openly carry arms in public.

Facts:

Herman Presser was part of a citizen militia group, the Lehr und Wehr Verein (Instruct and Defend Association), a group of armed ethnic German workers, associated with the Socialist Labor Party. The group had been formed to counter the armed private armies of companies in Chicago.

The indictment charged in substance that Presser, on September 24, 1879, in the county of Cook, in the State of Illinois, "did unlawfully belong to, and did parade and drill in the city of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the Governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the State of Illinois, or the troops of the United States." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and both parties having waived a jury the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10.

In December 1879, marched at the head of said company, about four hundred in number, in the streets of the city of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword; that the company had no license from the governor of Illinois to drill or parade as a part of the militia of the State, and was not a part of the regular organized militia of the State, nor a part of troops of the United States, and had no organization under the militia law of the United States.

Presser claimed the law violated his rights under the Second Amendment.

Holding: 

"Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States."

The Presser Court said:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

The Court emphatically disposed of Presser's argument that there exists a right to assemble, drill, or march in a militia independent of authorization by state or federal law:

The right voluntarily to associate together as a military company or organization or to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

In other word, as I have been saying all along, you do not belong to a "Constitutional Militia"  unless you belong to an actual serving organisation which is organised under Article I, Section 8, Clauses 15 & 16 of the United States Constitution.  As per Article VI, Clause 2 of the United States Constitution, that body is the National Guard: whether you like it or not.

In fact, reading Presser, it's pretty clear that the "unorganised militia" argument is seriously nonsensical from a legal point standpoint.  There is no basis for claiming that a reserve pool with no obligation of service (hence Unorganised, Sedentary, reserve, inactive,  general or other term indicating INACTIVITY Militia) has any "right" to arms.

This is especially true if your unit was not created by act of congress and under some form of governmental control.

I would also add that local governments are probably on good ground in strictly regulating open carry rallies by combining this case with the comment in Heller that:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Additionally, as I pointed out before the First Amendment protect peaceable assembly.  Any armed group is not "peaceable" in any realistic sense of that word.

No, "well-regulated" does not mean "well-trained"--it means that the organisation is firmly under control

The usual pro-gun argument about the term "well-regulated" in the Second Amendment is that it has something to do with the militia being well-trained, but like most of the mythology surrounding the Second Amendment this takes that passage out of historical and political context.

I like to cite to Adam Smith's comment in wealth of nations that:

This distinction being well understood, the history of all ages, it will be found, bears testimony to the irresistible superiority which a well-regulated standing army has over a militia.[1]

This could would be scary if the meaning were "well-trained" rather than a standing army firmly under civilian control since the fear was that a well-trained, well-armed, professional military could indeed overrun a poorly trained civilian force.


Additionally, the Constitution was partially a response to Shays Rebellion, which was an out of control mob: not a militia.  Shays Rebellion was firmly in the minds of the people who were debating the Constitution and its ratification.  They would not have wanted a militia which was not firmly under control.

As I have said before, the issue isn't personal arms in the Constitutional debates as much as it is the nature of the defence establishment and civilian control over the military.  To say that the term "well-regulated" does not refer to making sure that the militia is firmly under civilian control is to show a degree of historical ignorance which is staggering

Where this falls into the topic of a militarised police force isn't so much that a police force is like Scotland Yard or the French Gendarmerie Nationale as much as that it is firmly under civilian control and well-regulated by rules and procedures which protect the people.

A strong, independent judiciary is a necessary institution in such a society to make sure that the military/police are kept under control.  That was why the Constitution specifically sets limits for the Judiciary and guarantees protections in the legal process, both civil and criminal.

As another commenter said, "well-regulated means exactly that", whether one is talking about militias or professional military. 

[1] Adam Smith, Wealth of Nations, Book V, Chapter I-Of the Expences of the Sovereign or CommonwealthPART I Of the Expence of Defence V.1.27

Quote of the day

The class of cases to which the constitutional provision applies is widely different from the right of a private citizen to bear, concealed about his person, deadly weapons or arms. In the one, they are kept and carried in conformity with the Constitution and laws of the United States, with a certain specific object in view; in the other, they are kept and carried for private purposes, wholly independent of any constitutional regulation, and to answer private ends, wh[i]ch have no bearing upon the security of the State[.] If this idea be correct, then it follows that when arms are not kept or used for the defense of the State or Federal government, the manner of carrying and mode of using them are subject to the control and authority Of the State Legislature.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842)

Patrick Henry's "That every man be armed."

This is the entire text of Patrick Henry's speech in context, but I will put US Constitution Article I, Section 8, Clause 16 as a reminder of what it says:

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;

The Citation for Henry's speech is The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788.

Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

The honorable gentleman, in endeavoring to answer the question why the militia were to be called forth to execute the laws, said that the civil power would probably do it. He is driven to say, that the civil power may do it instead of the militia. Sir, the military power ought not to interpose till the civil power refuse. If this be the spirit of your new Constitution, that the laws are to be enforced by military coercion, we may easily divine the happy consequences which will result from it. The civil power is not to be employed at all. If it be, show me it. I read it attentively, and could see nothing to warrant a belief that the civil power can be called for. I shall be glad to see the power that authorizes Congress to do so. The sheriff will be aided by military force. The most wanton excesses may be committed under color of this; for every man in office, in the states, is to take an oath to support it in all its operations. The honorable gentleman said, in answer to the objection that the militia might be marched from New Hampshire to Georgia, that the members of the government would not attempt to excite the indignation of the people. Here, again, we have the general unsatisfactory answer, that they will be virtuous, and that there is no danger.

As you can see, Henry's concern is not for private arms, but the fact that Congress has the power to arm the militia.

Additionally, the issue of the use of military force is mentioned, since the real core issue was civilian control of the military, whether it is a professional standing army or the civilian militia. A militia needed to be under civilian control (i.e., "well regulated") as much, if not more so, than a professional army if there is to be domestic tranquility.

Anyway, when read as a whole, this text proves that this speech deals with the nature of the military force and how it was to be armed as opposed to anything else.

Why does this seem to be missing from most of the discussions about the Second Amendment

Don't forget Article I, Section 8, Clause 16 of the Constitution, which is something that need needs to be mentioned in relation to the Second Amendment. This provision gives Congress the power to arm the militia.

That was really what the Second Amendment refers to.

No conversation about the Second Amendment should neglect that this is part of the Constitution:

(Congress has the power} 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;

Most of the quotations that are taken out of context refer to this part of the Constitution and the concern that congress would fail to arm the militia in preference for the federal army.

It's really annoying me that the Second Amendment is not only misquoted and taken out f historical context, but it is taken out of Constitutional Context:

The Constitution, as originally adopted, granted to the Congress power --

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. US v. Miller, 307 U.S. 174 (1939)

I'm sick of people pretending that the first part of the Second Amendment is irrelevant to the Second.

And even sicker of people who would make any part of it irrelevant.

The right of the people to keep and bear arms is tied to the well regulated militia which is necessary for the security of the free state.

It must be read as a whole, not a part.

The real history of the NRA and gun control in America

Judge Richard Posner on Scalia's dismissal of the first clause in the Heller decision

It's nice when the leading CONSERVATIVE jurist backs up my opinion.

Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.

Actually, the proeme should act as a built in sunset clause.  It states the purpose for which the law was written, and once that purpose is no longer necessary: neither is the law.

In other words, those who would ask that we ignore it are tacitly admitting that the Second Amendment has no place in 21st Century America.

And if we are going to get into it, Aymette v State, 2 Humphreys 154 (Tenn. 1840), also contradicts what Scalia claims, which is " Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons.":

 We think there is a manifest distinction.  In the nature of things, if they were not allowed to bear arms openly, they could not bear them in their defence of the state at all.  To bear arms in defence of the state is to employ them in war, as arms are usually employed by civilized nations.  The arms, consisting of swords, muskets, rifles, etc., must necessarily be borne openly; so that a prohibition to bear them openly would be a denial of the right altogether.  And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence...

 ...To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms.  A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.  So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

If the authorities are not helpful to his argument, it is because they contradict that argument.

Or did Scalia not bother actually reading Aymette and hope that no one else would and call him on it?

As is the case with most "pro-gun" arguments, Scalia's opinion in the Heller case does not withstand close scrutiny.

I don't care if I am not in the majority...

I would rather be expressing something which I find to be true and beneficial to society than go with the herd.

Which takes me out of the class "Sheeple" since that implies a person who unquestioningly goes along with the herd.

In fact, Robert Ferrago said to me in a comment something along the line that I should give up and go along with the consensus.

Yes, I should agree with something that I have investigated and found wrong because everyone else believes it.

WRONG

I have made a couple of posts about dumbed down citizens and people who believe patently false things--that would place me in that group.

I've also mentioned the argumentum ad populum (argument to the people, or everybody believe it's true) fallacy.  I would be engaging in fallacious thinking.

While some might call me a pseudo-intellectual (which shows they have never met me and don't know me), it would be far more in character of a pseudo-intellectual to go with something which sounds good, but doesn't withstand scrutiny.

Personally, I don't know how you can feel intellectually superior when you are expressing something which is so obviously wrong and false.

See also:

• Why Do People Persist in Believing Things That Just Aren't True? : The New Yorker

Oh, Dear

Another loss for "gun rights" as "intermediate scrutiny" is applied and long standing prohibitions are considered constitutional from the latest Heller decision:

Nevertheless, based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense or hunting and therefore whether the prohibitions of certain semi-automatic rifles and magazines holding more than ten rounds meaningfully affect the right to keep and bear arms. We need not resolve that question, however, because even assuming they do impinge upon the right protected by the Second Amendment, we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard.

b. Intermediate scrutiny is appropriate

 As we did in evaluating the constitutionality of certain of the registration requirements, we determine the appropriate standard of review by assessing how severely the prohibitions burden the Second Amendment right. Unlike the law held unconstitutional in Heller, the laws at issue here do not prohibit the possession of "the quintessential self-defense weapon," to wit, [*45] the handgun. 554 U.S. at 629. Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non-automatic long gun. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 185 (1995) (revolvers and semi-automatic pistols are together used almost 80% of the time in incidents of self-defense with a gun); Dep't of Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles 38 (1998) (semi-automatic assault rifles studied are "not generally recognized as particularly suitable for or readily adaptable to sporting purposes"). Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self-defense or sport.

I guess it helps to have Cato running the show rather than the NRA if you want to see unconstitutional changes made to the Constitution.

Fake gun quotes.

You know how I keep saying that if you actually have a brain, can do research, and go and cite check those pro-gun quotes out there, that they usually are inaccurate and misleading.

Gawker has a few of these, but I particularly like this one:

"Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self defense."

FALSELY ATTRIBUTED TO: John Adams.

TRUTH: A version of this was even used by the NRA for several years. Because what Adams—federalist, signer of the Sedition Acts, and perennial pessimist about human nature—really liked was armed mobs. In fact, this is a bastardization of a longer quote in defense of the Constitution, which says something very different—namely, that armed untrained citizens in mass posed a threat to liberty and constitutional government:

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

I've already posted a link that showed most people were appalled by the anarchy which followed the War for American Independence (with a few exceptions, such as Jefferson).  Things like Samuel Adams  statement that "the man who dares rebel against the laws of a republic ought to suffer death."

Abigail Adams wrote about her anxieties for Massachusetts and her disappointment in the behavior of some of its inhabitants n a letter to Thomas Jefferson from 29 January 1787:

With regard to the tumults in my Native State which you inquire about, I wish I could say that report had exaggerated them, it is too true Sir that they have been carried to so allarming a Height as to stop the courts of justice in several Counties. Ignorant, restless desperadoes, without conscience or principals, have led a deluded multitude to follow their standard, under pretence of grievances which have no existence but in their own imaginations. (3)

According to Abigail Adams, the grievances of those closing the courts in Massachusetts

Abigail snappishly dismissed the demands and grievances of these "mobish insurgents" who were "sapping the foundation, and destroying the whole fabrick" of the state:

Some of them were crying out for a paper currency, some for an equal distribution of property, some were for annihilating all debts, others complained that the Court of common pleas was unnecessary that the sitting of the general court in Boston was a grievance. By this list you will see the materials which compose this rebellion and the necessity there is of the wisest and more vigorus measures to quell & suppress it…(4)

She firmly believed that "these people make[?] only a small part of the State." Time and attention to the true causes of the problems by "the more Sensible and judicious" residents would resolve the situation.

Benjamin Franklin had no sympathy for "the mad attempts to overthrow" the Massachusetts Constitution or "the wickedness and ignorance of a few, who, while they enjoy it, are insensible of its excellence." Franklin, like Samuel Adams, had little patience for those who he believed sought to undermine or overthrow a government constituted by and for the people.

I've also mentioned that James Madison said:

 "There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all."

Additionally, the Constitution makes it pretty clear in Article III, Section iii what it thinks of waging war against the United States.  And despite your bullshit to the contrary, the Second Amendment really doesn't explicitly repeal that section of the Constitution.

I know at least one of you doesn't understand the meaning of this passage, but I will quote it again anyway:

Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.–Dennis v. United States, 341 U.S. 494 (1951)

I think Abagail Adams pretty much sums up the situation in regard to using the Second Amendment to justify insurrection:

Ignorant, restless desperadoes, without conscience or principals, have led a deluded multitude to follow their standard, under pretence of grievances which have no existence but in their own imaginations.

John Lott: The Key to Defeating Gun Lobbies

The Quiet Mike Blog has yet another nail in the coffin of the gun lobby's most prominent Bullshit artist.  In fact, I'm really surprised his career hasn't taken the path of Michael Bellesisles except that he is on the right.

It seems that the right believes that if you keep repeating lies they somehow become truths, but there may be something to that given what the Supreme Court has done in the Heller and McDonald decisions.

Anybody who has looked into Lott knows he is the pro-gun equivalent of Michael Bellesisles (except I think Bellesisles was sort of onto something), which the Quiet Mike Blog points out:

Critics of Lott’s research are plentiful, although he dismisses them as “Liberal.” So it’s important to note this blistering rebuke by conservative pundit Michelle Malkin:

“.”“Lott claims to have lost all of his data due to a computer crash. He financed the survey himself and kept no financial records. He has forgotten the names of the students who allegedly helped with the survey and who supposedly dialed thousands of survey respondents long-distance from their own dorm rooms using survey software Lott can’t identify or produce.
Assuming the survey data was lost in a computer crash, it is still remarkable that Lott could not produce a single, contemporaneous scrap of paper proving the survey’s existence, such as the research protocol or survey instrument.”

It is also important to note that John Lott has a history of vetting his own work under another pseudonym, Mary Rosh. This is not in question, Lott himself has admitted his use of the Rosh persona. Here’s Malkin again:

“By itself, there is nothing wrong with using a pseudonym. But Lott’s invention of Mary Rosh to praise his own research and blast other scholars is beyond creepy. And it shows his extensive willingness to deceive to protect and promote his work.”

John Lott is quick to respond to his critics, this writer included. But he remains unable to definitively address the specific problem of his questioned data. On twitter, he produced these links to absolve himself of these issues.

The question remains as to why rubbish like John Lott's and the rest of the pseudoscholars has remained unchallenged?  Why is the "pro-gun" side afraid of research (or is that research adverse?)?

John R. Lott Jr. is the key to defeating the gun lobbies. His data is either deliberately misleading or subject to ignorant methodology. It has been repeatedly defended only with his own responses. If Lott is held accountable for his mistakes and mistruths, gun lobby talking points would get their volume turned down. It will be fully revealed how baseless many gun lobby arguments are. They are motivated by what they want, not how things are, and certainly aren’t interested in the greater good of the country.

The short form--don't call people "sheeple" if you are unwilling, or just plain unable to research and discover the facts for yourself.

And don't try to persuade someone of something which they can spot as bullshit.

You only come off as idiots--no matter how much you try to soothe yourselves into thinking you're the "intelligentsia".

You aren't even a "pseudo-intellectual".

You're just real dumbfucks.