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.

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.

Presser in a nutshell

I'm glad you lot are such legal scholars.

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)

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.

Billy Johnson [finally] says something intelligent.

I guess if I were to label someone a pseudo-intellectual, it would have to be the NRA's Billy Johnson since he can appear to think and say some interesting things, but (APU) they don't stand up to scrutiny.

In this case he accidentally made my case for me. That means he really doesn't think through what he says--he just likes the sound of his voice and thinks he looks hip.


Seriously,  if goofball wants to follow what the founding fathers believed in, then he should require military training in schools. 

After all, the Second Amendment does start out "a well-regulated militia being necessary for the security of the free state".

But, the "pro-gun" side wants to forget that part and say it's irrelevant, but that means the Second Amendment is garbage.

After all, why start the sentence with something that is unrelated to the rest of the sentence?

That is called a nonsequitur.  You are saying the Founding Fathers wrote gibberish.The Second Amendment was implemented by the Militia Acts of 1792, not the Guns for Irresponsible Dickheads Acts of 1792.
 
In fact, did hard enough and do some serious research and you will find the part about the "well-regulated militia" (which means under civilian control--not an armed mob) is integral to the Second Amendment.

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.--Joseph Story, Commentaries on the Constitution 3:§§ 1890

I've noticed the hemming and hawing whenever anyone mentions that the Second Amendment right is tied to the responsibility of actually serving in an Article I, Section 8, Clause 16 Militia.  Not saying that you are liable for service as a member of the "unorganised militia" since that designation confers no right or duty other than you can be called up for service.

It's the same thing as saying having a draft card makes you a member of the US military.

Anyway, I can guarantee that once it becomes obligatory and the duties are reimposed that we will see a repeat of what Justice Story mentions above.

So, I say bring it--make people perform the requisite duties under the Second Amendment.

And that means military training in addition to marksmanship.

Then, let's see how many people will be screaming for their Second Amendment rights.

BTW, I support your Second Amendment right--please go to your nearest National Guard recruiting office to exercise it.

As I said, that's not what you want to hear, but what you should be hearing.

See also:

• NRA: Let's Make Schoolkids Shoot Guns "to Advance to the Next Grade"
• NRA Floats Idea Of Kids Needing To Show Gun Proficiency "To Advance To The Next Grade" | Blog | Media Matters for America

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.

Three supreme court justices on the Second Amendment

That famous quote from Chief Justice Warren Burger

Let's not forget Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972).  Don't forget that Douglas was actually on the court at the time of US v. Miller (you did actually read the decision--didn't you?).

Douglas' successor on the Court, Justice John Paul Stevens:

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

Sorry, but saying the Second Amendment is not related to the militia is not only textually incorrect, it is historically and legally incorrect.

As I said in another post, if you want to exercise your Second Amendment right, you can get all the gear paid if you join the national guard, which is the Article I, Section 8, Clause 16 militia.  That also points out the silliness of asserting that the Second Amendment right is not related to the preservation or efficiency of a “well regulated Militia.”

You've got to pay for one (and go through the legal procedures) to be able to own a firearm if it is not related to the preservation or efficiency of a “well regulated Militia.”

That clause in the US Constitution is what makes a militia "constitutional", not quotes from the founding fathers.

OK, even though  I think the Heller and McDonald "decisions" are complete bullshit--I should at least quote them as well:

Scalia from Heller:

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). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Alito from McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

I know that Heller held that registration and background checks were A-OK.

No matter how you look at it--an unfettered right to personal arms is a fantasy.

It will be even more of a fantasy as Heller and McDonald are dissected in law journals and found to be composed of horseshit.

Exercise your Second Amendment right and get a free M-4 from the government!!!!

I know all of you think that you are entitled to a free assault rifle if you are going to exercise your Second Amendment right.

Well, guess what.

That is a fact, the government WILL give you a free M-4 assault rifle and everything you need to exercise your Second Amendment right

For more information on how to exercise your Second Amendment right and get that FREE M-4 assault rifle.

GO HERE!!!!!!

This site will happily give you all the information you need to properly and legally exercise your Second Amendment right.

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

Sanity makes a come back

This is in regard to Second Amendment Scholarship, in particular the interpretation of that clause of the Constitution which references "a well-regulated militia".

Politico published an article by Michael Waldman called "How the NRA rewrote the Second Amendment", which basically says everything I have been saying all along about that part of the Constitution.

Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.

So how does legal change happen in America? We’ve seen some remarkably successful drives in recent years—think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association’s long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

Read more: http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856.html#ixzz32IACUa4h

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.