Just what is this 'Right to bear arms?'

This is a discussion on Just what is this 'Right to bear arms?' within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by walleye You can have as many questions as you want and examine the Founder's intent as much as you want. But you'll ...

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  1. #91
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    Quote Originally Posted by walleye View Post
    You can have as many questions as you want and examine the Founder's intent as much as you want. But you'll never find more than your opinion. That's my point.

    The Founders intent was to have a constitution that survived them, their time - so they set up a system that would continue through many and different times than theirs, the courts and the Supreme C. - a part of that system - created to address confusion over Law and the principles/structures set down in the document. When an Opinion is reached, (and the courts conduct research into history to form ideas of the Founders intent), that Opinion IS the Founders intent - for it follows the system they intended. Beyond that there is no secret book which gives their intents for our questions and answers them for our questions and controversies flow from our time. We to do the best with the system they spun into motion: that was the only intent.
    Following your logic, it is fair to say the courts can amend the Constitution without going through the amendment process. If you think not - take a look at the state of the 4A in Indiana where their Supreme court has said that you have no right to preclude police from making an illegal raid on your house. I find serious flaws in this line of logic.

    Just because the government says it, and specifically some court, does not make it Constitutional. It may make it the currently enforced law, but it is not necessarily Constitutional.
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    [sarcasm] OK, its not constitutional. SO? [/sarcasm]

    And where's the outrage over what The Senate did two nights ago? Not constitutional and will be vetoed for that reason, and they know it. So?

    Thing is, we the people don't get to decide what is constitutional. That gets decided by Congress before they pass legislation, by The Executive before he signs something; and by the courts there after. At least that was the founder's intent. It wasn't that each man decide what the laws mean on his own and do his own thing. They weren't that liberal back then.

    We can talk and debate and write letters and post posts, and send e-mails, and go to town hall meetings, but the decision isn't an individual decision.
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    Some are content to accept whatever the government does and says is right as being right just because the government says so. That is fine and they certainly have the right to so do. I choose to make my opinion known to my reps at the federal, state and local level. It is my right and without people so doing, we would not enjoy many benefits we currently enjoy. I don't plan to remember that we have always been at war with Eastasia.
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    Quote Originally Posted by ksholder View Post
    Some are content to accept whatever the government does and says is right as being right just because the government says so. That is fine and they certainly have the right to so do. I choose to make my opinion known to my reps at the federal, state and local level. It is my right and without people so doing, we would not enjoy many benefits we currently enjoy. I don't plan to remember that we have always been at war with Eastasia.
    Precisely. But that is the limit of your effective objection. You may speak out, agitate for or against, voice an opinion to whoever will listen to you, advertise, demonstrate. You don't get to decide for yourself what is constitutional. You get to form an opinion that something is or is not constitutional and express that opinion. Where I part company with many who participate here is when they speak of 2A as giving a right to take up arms against the government. And frankly, even if that were a specified right, written in plain language somewhere in some newly found version of the BOR, it would be suicide.
    Last edited by Hopyard; December 3rd, 2011 at 09:52 AM. Reason: correction of grammar
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
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    Quote Originally Posted by Hopyard View Post
    [sarcasm] OK, its not constitutional. SO? [/sarcasm]

    And where's the outrage over what The Senate did two nights ago? Not constitutional and will be vetoed for that reason, and they know it. So?

    Thing is, we the people don't get to decide what is constitutional. That gets decided by Congress before they pass legislation, by The Executive before he signs something; and by the courts there after. At least that was the founder's intent. It wasn't that each man decide what the laws mean on his own and do his own thing. They weren't that liberal back then.

    We can talk and debate and write letters and post posts, and send e-mails, and go to town hall meetings, but the decision isn't an individual decision.
    You're right. We Don't get to decide what's constitutional. It's given to us whether we like it or not. In fact, what is given to us may or may not be constitutional. Just because it gets voted on and approved by the powers that be does not in fact A Priori make it right, or constitutional. That's why we had the Heller ruling. What stood for law, and not for an insignificant amount of time, was wrong. Governments are not perfect, just like the people that make them up and vote them into power. That is why we need to be vigilant, and work to correct what we see as injustice - something that is supposed to be protected by the first amendment.

    This country was founded when the occupants overthrew what they perceived as a tyrannical government. The founders knew exactly what they were writing when they wrote the second amendment. They rose up in rebellion and overthrew the King using - oh my - arms. In todays language they were terrorists. They have been portrayed as patriots because they prevailed. Had they lost, history would have a foot note about the rebellion and the traitors i.e. terrorists. No government is going to sanction or allow a rebellion, that seems like basic common sense. I would bet that none of the founders would have tolerated such a challenge to their rule either. However, they had just done exactly that and understood the value of the ability of the people to stand up to and if necessary confront the government. I'm stuck on "Shall not be infringed". It's unambiguous in it's character as far as I can see.

    What just happened in the senate, is, in my opinion, a complete violation of the bill of rights. That's just my opinion and you may not agree. Not that I don't understand the sentiment that led to the current Defense Spending Bill ( Senate Bill 1867). Who doesn't want to stop potential terrorists? The bill makes an end run around the constitution and the bill of rights and is a slippery slope that while today may not be intended, allows for a very ambiguous interpretation and implementation in the future. The fact that it passed the senate should be very alarming, even if it does get vetoed or falls apart in reconciliation.
    There's something happening here
    What it is ain't exactly clear
    There's a man with a gun over there
    Telling me I got to beware

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    Quote Originally Posted by Hopyard View Post
    Precisely. But that is the limit of your effective objection. You may speak out, agitate for or against, voice an opinion to whoever will listen to you, advertise, demonstrate. You don't get to decide for yourself what is constitutional. You get to form an opinion that something is or is not constitutional and express that opinion. Where I part company with many who participate here is when they speak of 2A as giving a right to take up arms against the government. And frankly, even if that were a specified write in plain language somewhere in some newly found version of the BOR, it would be suicide.
    Hop - we are into semantics on the Constitutional issue here. As for taking up arms against the government, of course it would be bloody. It has always been bloody. It was bloody in 1776, it was bloody in other countries that have ousted dictators, most recently Egypt and Lybia. I do not advocate going up against the government, but there could come a time when the people rebel - en mass. They have that right. The country was founded by such actions. Whether they would be successful or not, well that is a horse of a different color. I suspect they would prevail if the vast majority rose up against the government for two reasons. 1. The armed forces, while highly trained and fearsomely equipt are, as Madison put it, only a fraction of the populace. Many, many patriots and a few tyrants would water the tree of liberty in such an action. 2. I doubt the armed forces would fire on the citizenry if they revolted en mass.

    Before anyone runs off and says Ksholder is fomenting rebellion, I am not. I urge you and all other citizens to use the representative channels we currently have to make your voice heard. I urge all citizens to VOTE. Far too many are apathetic about their right to vote then ***** [edited out female dog] about the outcome of the elections in which they did not participate. If we all participate in the government by voting we can take it back from the "ruling class" that has established itself in this country.
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    Quote Originally Posted by Hopyard View Post
    And where's the outrage over what The Senate did two nights ago?
    Out of scope for this thread, but currently running here - Bill passes allowing govt' to imprison American citizens without the right of Habeus

    Quote Originally Posted by Hopyard View Post
    Not constitutional and will be vetoed for that reason, and they know it. So?

    Thing is, we the people don't get to decide what is constitutional.
    This is not even internally consistent. You opine that it is unconstitutional (and I totally agree with you) and then you state that we - you included - don't have a say in what is constitutional.
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    Quote Originally Posted by ksholder View Post
    Following your logic, it is fair to say the courts can amend the Constitution without going through the amendment process. If you think not - take a look at the state of the 4A in Indiana where their Supreme court has said that you have no right to preclude police from making an illegal raid on your house. I find serious flaws in this line of logic.

    Just because the government says it, and specifically some court, does not make it Constitutional. It may make it the currently enforced law, but it is not necessarily Constitutional.
    This is exactly the way many people want it to be. Remember Bork? One of the reasons he was raked over the coals in his Congressional hearings was this. When he was asked about his views on abortion he said that the issue should be first taken by the Legislative branch. That it was there that Laws were supposed to be made.
    Presently the Courts are used to shield the Executive and Legislative branches from having to vote on unpopular issues.

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    Quote Originally Posted by Hopyard View Post
    [sarcasm] OK, its not constitutional. SO? [/sarcasm]

    And where's the outrage over what The Senate did two nights ago? Not constitutional and will be vetoed for that reason, and they know it. So?

    Thing is, we the people don't get to decide what is constitutional. That gets decided by Congress before they pass legislation, by The Executive before he signs something; and by the courts there after. At least that was the founder's intent. It wasn't that each man decide what the laws mean on his own and do his own thing. They weren't that liberal back then.

    We can talk and debate and write letters and post posts, and send e-mails, and go to town hall meetings, but the decision isn't an individual decision.
    This is very true. The amazing thing about this country is we have more nationalities, races, religions, ethnicities than you can shake a stick at - and while we have had despicable treatment of some we have usually have also had attempts to cease this, even if only in hindsight - but amazing is that with all these differences we have never fallen into mass anarchy and blown ourselves away as a nation. It is because, as Hopyard says, at the start are individual voices having their say, a cacophony of them - and at the end of the process: LAW rules us. We are a very noisy bunch, but we have peace in our actions towards each other - for we do our fighting with words, language is our primary weapon.

    As long as we choose to keep it this way.......
    Last edited by walleye; December 3rd, 2011 at 05:37 AM.

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    Quote Originally Posted by ksholder View Post
    Following your logic, it is fair to say the courts can amend the Constitution without going through the amendment process. If you think not - take a look at the state of the 4A in Indiana where their Supreme court has said that you have no right to preclude police from making an illegal raid on your house. I find serious flaws in this line of logic.

    Just because the government says it, and specifically some court, does not make it Constitutional. It may make it the currently enforced law, but it is not necessarily Constitutional.
    The Supreme Court cannot do the things you mention, it cannot violate the constitution by making its own laws - it is limited to interpreting constitutional law in reference to a case it hears. I said when a an Opinion was reached - ON A CASE - that was the outcome of the Founders' intent and now Law - it has either upheld the law being challenged as unconstitutional, or has overturned that law because the Opinion is that it was unconstitutional. That's all it can do. Another body, the Legislative, introduces bills to make laws. That's their job.

    Supreme Court Justices can be impeached you know - (for "High Crimes and Misdemeanors" - not for an Opinion politically unpopular to some group. A "High Crime and Misdemeanor" would be dishing out their own Amendments in violation of the Constitution or your other examples of gross illegality.)

    So SCOTUS isn't King; no one is King, no one the Tyrant. We are ruled by Law because we agreed to be.

    If you want to feel like a Victim of a Dictator Government every time a law is passed or a court Opinion made you don't like: YOU are the one who is violating the Founder's intent - in attitude anyway. Who do you think wanted it this way?
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  12. #101
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    Quote Originally Posted by walleye View Post
    The Supreme Court cannot do the things you mention, it cannot violate the constitution by making its own laws - it is limited to interpreting constitutional law in reference to a case it hears. I said when a an Opinion was reached - ON A CASE - that was the outcome of the Founders' intent and now Law - it has either upheld the law being challenged as unconstitutional, or has overturned that law because the Opinion is that it was unconstitutional. That's all it can do. Another body, the Legislative, introduces bills to make laws. That's their job.

    Supreme Court Justices can be impeached you know - (for "High Crimes and Misdemeanors" - not for an Opinion politically unpopular to some group. A "High Crime and Misdemeanor" would be dishing out their own Amendments in violation of the Constitution or your other examples of gross illegality.)

    So SCOTUS isn't King; no one is King, no one the Tyrant. We are ruled by Law because we agreed to be.

    If you want to feel like a Victim of a Dictator Government every time a law is passed or a court Opinion made you don't like: YOU are the one who is violating the Founder's intent - in attitude anyway. Who do you think wanted it this way?
    In your ivory tower where theory reigns, you are correct. The Constitution was written as you note. John Marshall, being a uber Federalist as well as the second chief justice, decided to torture the Commerce clause to get a bigger government than was Constitutionally allowed. Nobody challenged him. Then he decided to usurp some of the powers of Article 1 of the Constitution, again, nobody challenged him. This trend was continued by Marshall's followers until today, everybody, including the Executive and Legislative branches workship at the bench of the High Court.

    Scotus is not supposed to make laws, just interpret them in light of the Constitution. You appear to see nothing wrong with the SCOTUS interpreting the Constitution as it sees fit, effectively re-writing it as it desires. I am more of a constructionist and believe that a hermaneutic faithful to the original intent of the FF is what is called for. We simply disagree on approach. Unless you use the constructionist approach, however, the SCOTUS is free to make interpretations that effectively amend the Constitution without amending it. The Supreme court of Indiana has done exactly this with the 4A. It remains to be seen if SCOTUS will hear this appeal and if it does, what it will do.

    Hugo Black's " high and impregnable" wall was made out of whole cloth. It is not in the Constitution or the BOR. The establishment clause of the 1A was designed to keep government out of the Church's business. The 1A does begin with the word Congress after all. Free exercise has also fallen victim to the whims of the courts. The list could go on with ways the SCOTUS has been allowed to "interpret" the Constitution in a less than faithful way, but we are hijacking this thread.

    I can have a difference of opinion with parts or all of the government and not feel like a victim of a dictator government. I can, and do, communicate with my reps when I have something I would like them to consider. Do I expect that they will drop everything and do my bidding - no, but I do expect them to listen to their constitutents - as a whole. In general, I don't think our reps do that and we should make a wholesale change. Seems like everybody feels this way about everybody else's reps, but want to keep their own - ergo, we are stuck in a rut.

    It is clear that we will not agree on this matter and to put this thread back on track, I will no longer respond to your posts in it unless they are in line with the OP's topic.
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  13. #102
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    Quote Originally Posted by ksholder View Post
    In your ivory tower where theory reigns, you are correct. The Constitution was written as you note. John Marshall, being a uber Federalist as well as the second chief justice, decided to torture the Commerce clause to get a bigger government than was Constitutionally allowed. Nobody challenged him. Then he decided to usurp some of the powers of Article 1 of the Constitution, again, nobody challenged him. This trend was continued by Marshall's followers until today, everybody, including the Executive and Legislative branches workship at the bench of the High Court.

    Scotus is not supposed to make laws, just interpret them in light of the Constitution. You appear to see nothing wrong with the SCOTUS interpreting the Constitution as it sees fit, effectively re-writing it as it desires. I am more of a constructionist and believe that a hermaneutic faithful to the original intent of the FF is what is called for. We simply disagree on approach. Unless you use the constructionist approach, however, the SCOTUS is free to make interpretations that effectively amend the Constitution without amending it. The Supreme court of Indiana has done exactly this with the 4A. It remains to be seen if SCOTUS will hear this appeal and if it does, what it will do.

    Hugo Black's " high and impregnable" wall was made out of whole cloth. It is not in the Constitution or the BOR. The establishment clause of the 1A was designed to keep government out of the Church's business. The 1A does begin with the word Congress after all. Free exercise has also fallen victim to the whims of the courts. The list could go on with ways the SCOTUS has been allowed to "interpret" the Constitution in a less than faithful way, but we are hijacking this thread.

    I can have a difference of opinion with parts or all of the government and not feel like a victim of a dictator government. I can, and do, communicate with my reps when I have something I would like them to consider. Do I expect that they will drop everything and do my bidding - no, but I do expect them to listen to their constitutents - as a whole. In general, I don't think our reps do that and we should make a wholesale change. Seems like everybody feels this way about everybody else's reps, but want to keep their own - ergo, we are stuck in a rut.

    It is clear that we will not agree on this matter and to put this thread back on track, I will no longer respond to your posts in it unless they are in line with the OP's topic.
    This is in line with the OP's Post: it's why he's getting a 7 page response about the 2nd A. - that's how we operate in this country. The Founders didn't create a simple system - Dictatorships are simple. And in one of those his Post would have had one response.

    You're right in my view about our reps not heeding us. That is why people are hitting the streets in protest - whatever you think of their views.

    But, that is the political reps deafness, and they do all have a bottom-line fear: Our Votes.

    But the Supreme Court is supposed to interpret the Constitution as it sees fit.

    Not as you or I see fit.

    That means we feel frustration at times.

    Here's an alternative:



    A PERFECT SYSTEM AND COUNTRY NO ONE DISAGREED WITH!


    This is a true story of differences of opinion in Iraq:

    During the War Between Irag and Iran, which Iraq was losing, Saddam Hussein gathered his ministers around him. He admitted things were not going well and asked for suggestions on improving their chances. No one spoke. They were in fear of him. He asked again, demanded, finally in seeming despair nearly begged someone to help him. Finally, one minster spoke. He offered a mild criticism by suggesting a couple of changes in some aspect of operation.

    He was lauded by Saddam as the only one who had the courage and intelligence to speak. He was told his suggestions would be implemented immediately. Saddam again berated the rest, who walked out looking sheepish.

    Later that day, the wife of the minister who offered the suggestions was given a box by special messenger.

    Inside was her husbands head.

    That was the last time any of his ministers disagreed with Saddam.


    There's worse things than frustration.
    Last edited by walleye; December 4th, 2011 at 02:50 AM.

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    Quote Originally Posted by DaveWorkman View Post
    I'll probably do a follow-up in a few days. So gather your thoughts, keep them pithy and on-topic.

    Just what is this ‘right to bear arms’ and what does it cover?
    In keeping with the narrow focus of the OP’s question and in the principle context of our forum, “Defensive Carry”, the question is two fold: what arms and where arms?

    The easy one, “where arms”, is where honest citizens may conduct regular commerce which the state should ensure and protect and not infringe on the basis of gun paranoia.

    On point of “what arms”, by my reading of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State…”, a well-regulated is the only kind of militia acceptable to a free state. While Heller and McDonald firmly establish the Right to Keep as applicable to individuals and not subject to a collective interpretation of, “people” as members of a militia, the BOR reserves some rights to the public all under the stated purpose of the Constitution that, for 2A, particularly, is to “insure domestic Tranquility, provide for the common defence, [and] promote the general Welfare”.

    So to rljohns and ksholder, et. al., who say 2A refers to all types of arms, I disagree.
    Quote Originally Posted by ksholder View Post
    A well regulated militia - armed and drilled common folks. This is not a standing army (which is constitutionally prohibited) or a national guard/reserve that is armed by the government. If the founders had meant this, they would have not needed the 2A as the arms would be provided by the government to the forces.
    No, 'a well-regulated militia" is a reservation of power to the federal government. The link explains federal preemption of militias.

    In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I, Section 8, Clause 16 which limits Congressional interference with the “state” militia. The Court’s repeated citations to the preemption of state militia law when adjudicating state-federal conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are ordinary in their susceptibility to federal preemption…. [A] consistent body of Supreme Court jurisprudence spanning 180 years places federal preemption of state militia powers among the most well-settled propositions in American constitutional law.
    So, Constitutionally, and as upheld by SCOTUS, the only states’ rights regarding militia are “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

    Maybe I’m out on an unpopular legal limb, but any other “militia” just doesn’t qualify as being “regulated”, at all. Militia requires regulation and training. The Second Amendment excludes militia, weapons in the hands of unregulated citizens.

    Quote Originally Posted by ksholder View Post
    to keep and bear arms [T]he Constitution does not limit the arms the populace has the right to keep and bear. If the founders had meant to define arms to be small arms, they would have ruled out cannon, ships and other artillery types of weapons that were available at the time. That they did not limit the categories of arms that the populace can keep and bear means that, if you could afford one, owing a fully armed F-15 would be constitutional.
    With the word, “bear”, 2A does not protect, as a right to bear, unregulated, self-propelled vehicles as “arms”. And indiscriminate explosives and their launchers need regulation. If I check my continuum of force model and, it's time to mobilize my nerve-gas tipped, howitzer-fired missle, I risk collateral damage, yes? Armored Humvees, up to what the road will “bear”, with body guards bristling with arms works for dignitaries, and 2A protects.

    Quote Originally Posted by Toorop View Post
    Does this include nuclear weapons? What about other weapons such as Sarin gas? Maybe a few canisters of anthrax? How far does it go?
    You take the view that you owe your right to bear to the government. The BOR takes the view that men have natural rights and that the onus is on government to define its actions to the citizen not on the citizen to seek approval. Yes, the BOR actually resticts to non-ordinance your rights to keep and to bear.

    The link makes the distinction between "ordinance" and “arms”:

    In Colonial times "arms" usually meant weapons that could be carried. This included knives, swords, rifles and pistols. Dictionaries of the time had a separate definition for "ordinance" (as it was spelled then) meaning cannon. Any hand held, non-ordnance type weapons, are theoretically constitutionally protected. Obviously nuclear weapons, tanks, rockets, fighter planes, and submarines are not.
    The same site also links to a more liberal discussion of the founders’ inclusion of all arms and the restrictions of WMD’s.

    Certainly, there was discussion of threats to liberty by an army, foreign or domestic, including Hamilton's Federalist 29 and Madison's Federalist 46. Madison's solution in 2A was a well-regulated militia. The founding fathers were not passive and did not intend a legal loophole for rebellion.

    2A does not say that government is going to prohibit bearable arms but does imply that it may properly regulate militia, and by extension, its weapons and anything and everything else to "well" make it an efficient force explicitly to the purpose of "the security of a free state".
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    Americans understood the right of self-preservation as permitting a citizen to repel force by force
    when the intervention of society... may be too late to prevent an injury.
    -Blackstone’s Commentaries 145–146, n. 42 (1803) in District of Columbia v. Heller, 554 U.S. 570 (2008)

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    Pistology. Great Post! Constitutionally correct. Too many people base their opinions of authority to "The People" from the Bill of Rights alone. The whole Constitution and later court opinions all make up part of "Constitutional Law" and it can read a whole lot different than the apparent wording in the Bill Of Right of Rights. The Right to Assemble is actually "...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." means assembling a committee or town hall group and writing out a petition to present to a government office or official. It does not mean forming an ad hoc militia and showing up on the Capitol's steps with guns!
    Retired Marine, Retired School Teacher, Independent voter, Goldwater Conservative.

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    Pistology, there is one point in your well thought out and stated post that I would like to discuss: the meaning of the term regulated. If I am interpreting your post right, you are taking the word regulated in context of its current meaning of regulation. Other documents and opinions seem to have a different interpretation of the word as meaning, "well drilled, conditioned, or prepared". I am not sure that it has any dramatic impact on what you are saying, but please see the following, which I quote from another poster on a thread discussing college campus carry:

    “Regulated” was not used in the sense of legal regulation. If you look up all of the definitions of the word in use at the time, then reference them to external sources (like The Federalist Papers), it’s pretty clear that they were using “regulated” to mean “well drilled, in a state of readiness.” Note what Alexander Hamilton said:

    “To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.”

    Paraphrased, he’s saying that it’s completely impractical and undesirable to expect everyone with a gun to train and drill until they match the standard of a “well regulated” fighting force.

    Which leads to the natural follow up, “Then the second was only meant to protect organized, well drilled citizens.” But there is much contemporaneous writing (including the above) that indicates that the founding fathers were protecting an individual right for all citizens, not just those in an organized militia.
    Link to the above here (see post 81 by Jason): http://blogs.roanoke.com/roundtable/...us/#more-27280
    shooterX likes this.

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