Just what is this 'Right to bear arms?' - Page 8

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 noway2 Pistology, there is one point in your well thought out and stated post that I would like to discuss: the meaning ...

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  1. #106
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    Quote Originally Posted by noway2 View Post
    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, "...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."
    No dramatic impact because my view of 2A is that it substantively guarantees the right only to arms that one may bear, and I can agree on the use of the term, "regulated".

    My link to the discussion contrasting "arms" and "ordinance" includes the same quote that you cite but asks a question
    Considering the adjective "well" and the context of the militia clause, which is more likely to ensure the security of a free state, a militia governed by numerous laws (or the proper amount of regulation [depending on the meaning of "well"] ) or a well-disciplined and trained militia?
    Our military history in securing a free state is as proud as our nation's history, and the proper amount of (legal) regulation is a sine qua non of a -- well-disciplined and trained or well drilled, conditioned, or prepared -- militia. IOW, from our roots on the first battlefields, we profess due process. Maybe this is a stretch for our conversation, but our government of laws reserves the authority to well discipline, train, drill, condition and prepare (fitting the words to the facts not vice versa). "Well-regulated militia" in 2A affirms that reservation.

    As we know, while affirming the applicability of 2A to individuals, Heller and McDonald also affirm many firearms restrictions.

    Some on this forum argue that 2A protects the right to "bear" WMD's. A quote from my link addressing this liberal reading says
    The "textualism" school is the only game in town ... because words mean things. A textualist concentrates on the only objectively verifiable part of the law: the enacted text. Legislatures enact laws made of words, not their intentions and not society's meaning-of-the-moment. Searching for what the words of the text were understood to mean by the rational, reasonable reader of the time is the only logical, stable, proper method for interpreting the law. As Judge Robert Bork puts it17,

    "All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like."
    So read that the first part of 2A ("A well regulated Militia, being necessary to the security of a free State,") as a "purpose" clause and the second part ("the right of the people to keep and bear Arms, shall not be infringed.") as the second, major, substantive right that the Bill of Rights defines.

    Here, it is the government that relies on the militia for its muscle. It mobilizes the organized militia and calls into service the unorganized militia. Maybe it hopes that they bring their "arms"? No, the individuals of the militia and their "arms" are in perpetual service to the government. That isn't right.

    Read the word, "being" as "is" remove a comma and add the word, "but": "A well-regulated militia [is] necessary to the security of a free state, [but] the right of the people to keep and bear Arms, shall not be infringed."

    The post-American-independence world has made us bigger and stronger but also meaner, viz. seventy years ago, today.

    The government has a legitimate authority in securing our free state by regulating (your historic use of the term, with which I agree BTW) the militia, and history shows that such "a well-regulated militia" depends on legal regulation (as you rightly identify my last post's use of the term).
    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)


  2. #107
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    It means exactly what it says..when people attempt to interperet and assign meaning to words that are already clear and precise is where the confusion starts. What kind of question is that anyways? What does it mean? come on
    Light travels faster than sound...thats why some people appear bright before they speak

  3. #108
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    Quote Originally Posted by Pistology View Post
    No dramatic impact because my view of 2A is that it substantively guarantees the right only to arms that one may bear, and I can agree on the use of the term, "regulated".

    My link to the discussion contrasting "arms" and "ordinance" includes the same quote that you cite but asks a question

    Our military history in securing a free state is as proud as our nation's history, and the proper amount of (legal) regulation is a sine qua non of a -- well-disciplined and trained or well drilled, conditioned, or prepared -- militia. IOW, from our roots on the first battlefields, we profess due process. Maybe this is a stretch for our conversation, but our government of laws reserves the authority to well discipline, train, drill, condition and prepare (fitting the words to the facts not vice versa). "Well-regulated militia" in 2A affirms that reservation.

    As we know, while affirming the applicability of 2A to individuals, Heller and McDonald also affirm many firearms restrictions.

    Some on this forum argue that 2A protects the right to "bear" WMD's. A quote from my link addressing this liberal reading says


    So read that the first part of 2A ("A well regulated Militia, being necessary to the security of a free State,") as a "purpose" clause and the second part ("the right of the people to keep and bear Arms, shall not be infringed.") as the second, major, substantive right that the Bill of Rights defines.

    Here, it is the government that relies on the militia for its muscle. It mobilizes the organized militia and calls into service the unorganized militia. Maybe it hopes that they bring their "arms"? No, the individuals of the militia and their "arms" are in perpetual service to the government. That isn't right.

    Read the word, "being" as "is" remove a comma and add the word, "but": "A well-regulated militia [is] necessary to the security of a free state, [but] the right of the people to keep and bear Arms, shall not be infringed."

    The post-American-independence world has made us bigger and stronger but also meaner, viz. seventy years ago, today.

    The government has a legitimate authority in securing our free state by regulating (your historic use of the term, with which I agree BTW) the militia, and history shows that such "a well-regulated militia" depends on legal regulation (as you rightly identify my last post's use of the term).
    Ah, in a word no. I don't see how you could be further from the meaning if you tried, no disrespect intended.

    Please go back and read the Federalist papers that are applicable. The intent of 2A is clearly spelled out, by a Federalist no less! From the Federalist perspective, 2A was a guarantee for the states that the citizens of the state could keep and bear arms. The purpose was to counteract an all too powerful central government that could come about in the future. The Federalist understood a state might not have enough military troops to counteract a standing Federal army. 2A was the states guarantee that the states could raise enough armed soldiers from its citizenry, who would provide their own arms to support such an effort.

    2A is not about the states' right to have a military force. The citizens were seen as the third tier in the governmental system, able to back up and support the states if they ever needed to challenge a central, Federal government. The Federalist hoped that such a challenge would be undertaken peacably, but they knew all too well that such circumstances might arise as to require the use of force.

    This is the Federalist perspective, and is clearly spelled out in their writings. Note too that the Federalist least favored states rights, yet the understood the need for an armed and unresticted citizenry. The key difference between Federalist and other founding fathers is that Federalist thought this was understood and that there was little need to spell it out in a bill of rights.
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  4. #109
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    Leaning on Federalist articles is a bit thin. Keep in mind what they were; opinion pieces. They are like leaning
    on your local newspaper's editorial page to get guidance about what some past event was about; let's just pick the
    invasion of Panama and capture of Noriega. You'll get all manner of opinion. Whether or not that sheds any real light on
    the events or the meaning of the events is entirely a different matter.

    Perhaps a better foundation for interpretation would be to see what the new states allowed and disallowed, and for what
    reasons. Another way to "investigate" would be to see what the very earliest Federal gun laws were about, and maybe find
    the transcripts of the Congressional debate.

    I'm just trying to propose a different way to look at this and think about the issue. Politics and policy making
    back then was every bit as ugly and messy as it is today. Just looking at one set of editorial writing to get to a conclusion doesn't
    quite cut it.
    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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  5. #110
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    Quote Originally Posted by ctr View Post
    Ah, in a word no. I don't see how you could be further from the meaning if you tried, no disrespect intended.
    None taken. But Federal preemption of militias discusses Constitutionally, and as upheld by SCOTUS, that 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”.
    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.
    The Federalist Papers say what you say they say. But SCOTUS and the Constitution are trumping.

    Madison had many years to comment on the disabling of "State governments, with the people on their side" to repel the danger of their downfall. And I look forward to researching this further as you suggest. It makes me wonder why there is so much concentration on the moment of 2A and prior history and so little on clarification in later years of the generation of the founders?

    I'll post my findings here if something jumps out at me and is pertinent; or I'll post in a new thread if it is extensive and extraneous to the narrow focus of this thread.

    What do you think is this "Right to bear arms and what does it cover"?
    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)

  6. #111
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    Quote Originally Posted by Hopyard View Post
    :SNIP:
    Perhaps a better foundation for interpretation would be to see what the new states allowed and disallowed, and for what reasons. Another way to "investigate" would be to see what the very earliest Federal gun laws were about, and maybe find the transcripts of the Congressional debate.

    :SNIP:
    Some believe that the Founders of this nation meant the Constitution to only restrict the new Federal Government. That the States would still be able to pass laws over and above what the Federal government was allowed to do.
    That individual States were free to impose laws that the new Federal Government did not have the power to enact. They seemed fine with creating their own laws restricting personal activity but were against the Federal Government doing so.

    EDIT: That the 2dn Amendment applied only to the Feds and not the individual States or cities.

    Michael
    Last edited by mlr1m; December 7th, 2011 at 10:11 PM. Reason: I made an oopsie

  7. #112
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    MIchael, can you please cite sources for states' sovereignty as applicable to the right to bear arms or something to the contrary?
    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)

  8. #113
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    Just as there were Federalist Papers, there are the Anti-Federalist papers as well. Just keep that in mind.

  9. #114
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    As I was reading through this thread, especially the debate between hop and ks whether the 2A has a rebellion loophole, I decided reread some our Founders writings, (the federalist and anti-federalist papers, and the various letters they wrote) and I have come to following conclusions: 1) "well regulated Militia" could be interpreted to have a two meaning. As someone stated already, "well regulated", as used during that era means "properly operating, trained, etc....", however, as some others have stated, I think regulated could also refer to rules and regulations. My reason for this second assertion comes from Article 1, section 8 of the constitution, the commerce clause "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". However, the use of "well" in my opinion, places this phrase in the area of my first assertion. And it doesn not mean regulated by congress or the executive otherwise the Militia Act of 1792 wouldn't have been necessary.

    Secondly, and I think most of us agree, that our individual right is protected, if it weren't why would Jefferson have made this the following statement:

    "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks."
    --- Thomas Jefferson to Peter Carr, 1785

    Or this comment by John Adams:

    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."
    ---John Adams, A Defense of the Constitutions of the United States 475 (1787-1788)

    Now this brings me to the discussion about "rebellion". From the following comments we can see that the 2A is indeed meant as a deterrent against a tyrannical government, but only as a last resort, not a response to a law you disagree with, that's what the 1A protects, and our right to vote.

    "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."
    ---Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787)

    And a comment from Justice Joseph Story, who was appointed by Madison:

    "The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. 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 f 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."


    This is just my opinion based on my Own research, you may or may not agree.
    Last edited by shooterX; December 8th, 2011 at 03:58 PM. Reason: correction
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  10. #115
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    Quote Originally Posted by shooterX View Post
    I think regulated could also refer to rules and regulations. My reason for this second assertion comes from rom Article 1, section 8 of the constitution, the commerce clause "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". However, the use of "well" in my opinion, places this phrase area of my first assertion....
    This is just my opinion based on my Own research, you may or may not agree.
    shooterX, Great reporting of research! I totally agree 99%. Off topic of the thread, one highlight to clarify the use of the term in Art I, sec. 8, IMO, "regulate", means every sense of the word in use at the time:
    1) To control or direct by a rule, principle, method, etc., 2) To adjust to some standard or requirement as for amount, degree, etc., 3) To adjust so as to ensure accuracy of operation, and 4) To put in good order.
    IOW, to "regulate" commerce means to ensure that voluntary trade between honest citizens isn't interrupted by a third party.
    shooterX likes this.
    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)

  11. #116
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    Quote Originally Posted by Pistology View Post
    shooterX, Great reporting of research! I totally agree 99%. Off topic of the thread, one highlight to clarify the use of the term in Art I, sec. 8, IMO, "regulate", means every sense of the word in use at the time:

    IOW, to "regulate" commerce means to ensure that voluntary trade between honest citizens isn't interrupted by a third party.
    Pistology that was the definition I was alluding to, guess I wasn't very clear, thanks.
    "Don't start none, won't be none!"

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    You're quick, shooterx. In the interest of accuracy, with the presumption to offer my correction, above, I should correct myself, and I'm sure that there's more to it, but, obviously, the commerce clause from Art I., sec., 8 includes not only "citizens" (my term) but "foreign Nations, and among the several States, and with the Indian Tribes"....
    shooterX likes this.
    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)

  13. #118
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    Quote Originally Posted by Pistology View Post
    You're quick, shooterx. In the interest of accuracy, with the presumption to offer my correction, above, I should correct myself, and I'm sure that there's more to it, but, obviously, the commerce clause from Art I., sec., 8 includes not only "citizens" (my term) but "foreign Nations, and among the several States, and with the Indian Tribes"....

    I'm quick because work is so slow right now, I don't have much to work on.
    "Don't start none, won't be none!"

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    Quote Originally Posted by Hopyard View Post
    Leaning on Federalist articles is a bit thin. Keep in mind what they were; opinion pieces. They are like leaning
    on your local newspaper's editorial page to get guidance about what some past event was about; let's just pick the
    invasion of Panama and capture of Noriega. You'll get all manner of opinion. Whether or not that sheds any real light on
    the events or the meaning of the events is entirely a different matter.

    Perhaps a better foundation for interpretation would be to see what the new states allowed and disallowed, and for what
    reasons. Another way to "investigate" would be to see what the very earliest Federal gun laws were about, and maybe find
    the transcripts of the Congressional debate.

    I'm just trying to propose a different way to look at this and think about the issue. Politics and policy making
    back then was every bit as ugly and messy as it is today. Just looking at one set of editorial writing to get to a conclusion doesn't
    quite cut it.
    Correct, the Federalist papers were opinion - written by several men who signed the Constitution. Founder Fathers in other words. I think their opinion is more valid that most, don't you agree?

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    Quote Originally Posted by Pistology View Post
    None taken. But Federal preemption of militias discusses Constitutionally, and as upheld by SCOTUS, that 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”.

    The Federalist Papers say what you say they say. But SCOTUS and the Constitution are trumping.

    Madison had many years to comment on the disabling of "State governments, with the people on their side" to repel the danger of their downfall. And I look forward to researching this further as you suggest. It makes me wonder why there is so much concentration on the moment of 2A and prior history and so little on clarification in later years of the generation of the founders?

    I'll post my findings here if something jumps out at me and is pertinent; or I'll post in a new thread if it is extensive and extraneous to the narrow focus of this thread.

    What do you think is this "Right to bear arms and what does it cover"?
    I look forward to what you come up with. Finding original sources can be difficult and takes a lot of time and dedication.

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