does the 2nd amendment leave room for any rules?

[Blackhawk6]

The Second Amendment refers first of all to arms not muzzle loading flintlocks. That's because the Founding Fathers knew that firearms technology had been around over three hundred years and was constantly evolving. In fact another evolution was reached during the prosecution of the American Revolution in the advancement concerning rifled barrels. They knew! It's something that the Brady Bunch has been blind to and it's the reason that my semiauto assault rifle or my Hand Phaser is covered by the 2nd Amendment. The Federalist Papers are clear the American People are never to be barred the use of arms should they ever need to replace a government of oppression. This means the arms used by the INFANTRY must be allowed the people. Stingers fall into the realm of Air Defense Artillery. Mortars are crew served weapons....and are thusly not covered by the 2nd. Same for tanks, etc. Full auto is just another evolution of personal weapons. Even an M60 can be handled and fed by one guy. But not a ma deuce .50 cal. So regretably the M2HB is not covered, although a Barrett 50 IS. If the infantryman carries it the PEOPLE MUST HAVE IT TOO, but in greater numbers!

Not having read all of the Federalist Papers, I am uncertain as to how you arrived at the "infantry-weapons-only" conclusion. I also think your definition of what qualifies as an infantry weapon and what does not, is arbitrary.

Regardless, rather than assuming that the essays written by two of the Founding Fathers (as insightful as they are) reflect the opinions of all or even a majority of the Framers, I find that the Militia Act of 1792 (passed May 8, 1792) is a much more thorough reference for how the Framers intended the militia to be armed.

Considering it was passed only three years after the Constitution was ratified, I think it is valid to assume that it embodies the same views of the Milita as were held at the time the Constitution was written. Presumably, since it passed, it reflects the majority opinion and not just the opinion of a few people. It is quite specific, to wit:

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

My reading is that the majority of the militiamen were expected to equip himself as a rifleman. The additional statement: "and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound," indicates to me an effort to standardize the weapons of the Militia to a common caliber, presumably the standard caliber of the Federal Army.

In more modern standards, I believe the militia would closely resemble that of the Swiss. Every militiaman would be responsible for providing a rifle (presumably of the M4/M16/AR-15-pattern though I suppose one cold make the arguement that any rifle capable of firing 5.56mmx45mm ammunition would suffice), its ancillary equipment and a basic load of ammunition.

The Militia Act further defines the formation of other types of units:

That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong.

Note that the cannon, the crew-served weapon of its day, is not required to be provided by the Militia nor are any other specialized weapons. Presumably, the intent was that they would be provided by the Federal Governement, were the Militia to be raised. Individual weapons and equipment were expected to be provided by the Militiaman, including pistols.

Therefore, based on my reading, rifles of the type currently in use by the Federal Army as well as pistols are authorized. Specialized weapons including machineguns, flamethrowers, cruise missiles, etc. are not. They remain under the control of the Federal Governement and are issued to the States as the Federal Government deems necessary.

This concept began to show flaws in the 1935 case Miller v United States. The argument was specifically that a sawed off shotgun was not a suitable weapon for use by the militia. One problem: The pro side was never argued before the High Court. That side never showed up, so only the con side was raised and the court made it's decision based on THAT. So if a sawed off shottie isn't a suitable weapon for the militia why then all our M1A's, M4's, yada yada yada are no brainers...right? Well, there they go again. The CLAMs (Congressional Left, Academics & Media) have gone and yet pulled another redefinition of terms. That's how they conduct business: If they don't like an outcome, they simply change the parameters of the argument and start over.

Based on the Milita Act of 1792, I believe the decision in Miller v U.S. is correct. While shotguns saw service in WWI, a sawed-off shotgun was not the standard issue weapon for a rifleman in 1935 nor is it a pistol.

Again based on my reading and interpretation, M1A's would have been acceptable during the period that the M-14 was the standard issue rifle and the AR-15/M-4/M-16 would be acceptable today. Handguns were, and continue to be acceptable, high-capacity magazines and all.

Based on my interpretation, the word "Militia" is an excellent arguement that everyone should be allowed to own a select-fire (3 round burst not FA) M-4 or M-16A2/4 and/or handgun. Nothing else.

Now that whole "...shall not be infringed," thing is another story.

[DefensiveCarry.com]

[cmidkiff]

Blackhawk6, I like your line of thinking, but I think you are limiting things a bit more than I would...

Our troops don't all get exactly the same weapons. Many get an M16 and a Beretta... some get a .308, some a .50 barett, a few even lug around an M249. One single weapon type isn't suitable to all needs, therefore, a well equiped militia should have a variety of weapons, just as our armed forces do. Just as the quoted statement says a musket or a rifle... different weapons for different situations.

There have been short barelled shotguns on nearly every battlefield in the last 200+ years. Just because there was no defense in attendence to point out that fact does not make US vs Miller correct.

[AceRider]

Based on my interpretation, the word "Militia" is an excellent arguement that everyone should be allowed to own a select-fire (3 round burst not FA) M-4 or M-16A2/4 and/or handgun. Nothing else.

But only until you are 45 years old - or maybe it's 46, I'll have to read it again...

[havegunjoe]

Seems to me this poll points out some of our problems in that even avid gun owners and carry advocates cannot agree on what the 2A is saying. To me the whole reference to the militia is simply saying that because we need a militia from time to time, even to protect us from our own government, we, (individuals), have a right to "bear arms".

The question about felons seems cut and dried except I believe there are a lot of non-violent crimes that constitute a felony. Should Martha Stewart for example not have the right to self protection for what she was convicted of? I think over the years as a crack down on crime we ended up making a lot of things a felon that I personally wouldn't have put into that category. When I hear the term felon I think "violence" in some way and that is not always the case.

Just thought I would point out a couple things here.

[Blackhawk6]

Blackhawk6, I like your line of thinking, but I think you are limiting things a bit more than I would...

Our troops don't all get exactly the same weapons. Many get an M16 and a Beretta... some get a .308, some a .50 barett, a few even lug around an M249. One single weapon type isn't suitable to all needs, therefore, a well equiped militia should have a variety of weapons, just as our armed forces do. Just as the quoted statement says a musket or a rifle... different weapons for different situations.

I am well aware of the multitude of weapons that our Soldiers are equipped with. That is not the issue. The focus is not what type of weapon an individual might have on the battlefield but rather what weapons must an individual have access to in order to be capable of performing his duties as a member of the Militia.

The Militia Act of 1792 sets a standard for the weapons that members of the Militia must have, and therefore must have access to. That standard is the standard issue rifle (or at least a rifle chambered in the same caliber) and/or a pistol, as your function in the Militia will require you to have one or the other, perhaps both. It is mute as to who provides any other weapons but presumably it is the Federal Government.

I believe an objective reading of the Militia Act reveals that any member of the Militia is responsible for providing his own service rifle (presently the M-4 or M16A2/4) or pistol. Therefore, anyone between the ages of 18 and 45 (per the definition of the Militia) must be able to procure these weapons.

There have been short barelled shotguns on nearly every battlefield in the last 200+ years. Just because there was no defense in attendence to point out that fact does not make US vs Miller correct.

Again, a weapon's presence on the battlefield does not automatically make it a "Militia weapon." The Act is clear as to what types of weapons the Militia should arm themselves with and therefore must have access to. It is mute with regard to other weapons.

But only until you are 45 years old - or maybe it's 46, I'll have to read it again...

Then it becomes a 5th Amendment issue...

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Since I am required to provide the weapon, I own it. Once I own it, it is my property. You can not just take it away.

[AceRider]

Wait, how come mortars and tanks and stingers don't count?

[ExSoldier]

Wait, how come mortars and tanks and stingers don't count?

Crew Served. Who has "possession?" Even a Stinger, while fired by one man, qualifies as "artillery." Note that nowhere in the definitions for a "militia" does it state that members are to show up bearing their own cannon.

I think the line can be drawn at crew served as I noted before. US Code currently agrees under the National Firearms Act. But you could argue that current law is unconstitutional like the now defunct assault weapons ban.

So go back to the original language and then to further narrow the view read the actual writings of the Founding Fathers on this subject. George Washington was a certified gun nut. He owned over 50 firearms. In a letter to his nephew he once advocated shooting as a valid form of exercise...saying that in allowing the gun to accompany him on his walk would put a "spring in his step..."

Even the Swiss, who's population really are the army as well...are issued select fire rifles but no area weapons like grenades or man portable anti-armor weapons. No crew served.

[BenGoodLuck]

How do you figure the wording in the second amendment leaves room for the states to make gun laws?

Does that mean they can make laws banning my right to go to church? Can the state tell me I can not run a paper or a magazine?

First Amendment – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Second Amendment – Militia (United States), Sovereign state, Right to keep and bear arms.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Timmy Jimmy - you have made a fantastic argument. Why is it that the government doesn't require permits to attend a place of worship, yet requires permits for gun ownership?

[OldVet]

I don't think I want to play anymore. Can I go home now?

[bunkerguy]

What part of shall not be infringed do you know understand? reapeal the hughes amendment,GCA of 1968, and the NFA of 1934

[azretired]

I'm on the side that disagrees with age limitations. But a couple of points; While I agree that felons should generally not have firearms, some, like white collar felons should be able to petition the court and get their rights back after they are no longer on probation or parole. Last cannons were around when the 2nd Amendment was written and I do not think they intended for the average person to carry around a cannon. So I do think there should be some control on things like bazookas, cannons and grenades.

[mlr1m]

The Constitution was originally intended to apply only to the Federal Government, this left it to the States to impose whatever regulations they felt necessary. The unintended consequence of applying the Constitution to the States was that it left no one with the power to regulate weapons. Unless of course you amend the Constitution or you just ignore the parts that say you cannot infringe on the rights you wish to regulate or infringe on.

Michael

[Spidey2011]

Disclaimer: I did not read the whole thread, yet.

It's been well established that you do not have full rights until 18. I mostly agree with that, even though I know 16 year old kids that are more mature than some adults. I also agree that felons and the mentally incompetent should not be able to own firearms.

I do NOT agree that you should have to be 21 to purchase a handgun from an FFL. Full rights at 18 should mean full rights. Not full rights with restrictions.

Personally, I believe any restrictions other than being 18, not a felon, and mentally competent to be an infringement. That means I should be able to go to the LGS and buy full auto rifles or stingers if I so desire.

[archer51]

Talk about resurrecting the dead, this thread dates back to Aug 2006. (Before I was a member here)

[pgrass101]

Wow this si a really really old thread, that has risen from the dead



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