well regulated - the prefatory clause

well regulated - the prefatory clause

This is a discussion on well regulated - the prefatory clause within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Does anyone have a link to the amici brief in Heller discussing the grammatical construction of the.prefatory clause? I get nervous when folks imply that ...

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    Member Array Spalt's Avatar
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    well regulated - the prefatory clause

    Does anyone have a link to the amici brief in Heller discussing the grammatical construction of the.prefatory clause? I get nervous when folks imply that the 2a is only a collective right and modern militias should be our focus. I thought Heller settled that one.


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    The amici briefs supporting respondent are here: Amicus briefs for Heller available in guns case : SCOTUSblog

    For DC, here: Amicus briefs for D.C. available in guns case : SCOTUSblog


    Heller settled it:

    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment , 73 N. Y. U. L. Rev. 793, 814–821 (1998).

    Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4
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    Member Array Spalt's Avatar
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    Thanks PEF, could not find them last I looked. I heard someone make the collective argument on the radio the otherday based on the prefatory, and wondered about the amici. I love it when folks pretend scholarship they do not have.
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    For those who like to argue that the Second Amendment applies only to militia service I like to point them toward Title 10, US Code, containing the Militia Act (defining the militia of the United States as all able-bodied males between 18 and 45). With today's emphases upon equal opportunity we certainly cannot exclude those with disabilities or females, and age discrimination is forbidden under federal law, so the militia of the United States actually consists of all adults.

    The Constitution of the United States also contains a clause identifying the militia (pretty much as above).

    Most state constitutions also identify what the state militia is and of whom it consists, and many states have corresponding state laws pertaining to militia service.

    So, when someone opposed to individual rights to keep and bear arms jumps in with the big pronouncement that they think will trump every argument to the contrary, I like to very simply complete their educations.

    Then there can be further discussion about the historical understanding of militia service, beginning with the Federalist Papers. The militia actually consists of three recognized segments of the population at large. There is the "popular militia", the bulk of the population subject to call into active service. There is the "select militia", essentially active duty members of state militias (now more commonly known as National Guard formations, integrated into the national military structure and subject to nationalization under an emergency declaration but otherwise remaining under the control of state governors), as well as state and local law enforcement officers. And there is the national military establishment (essentially a "standing army", however since the US Constitution forbids standing armies there can be no more than a two-year appropriation of funding at any time).

    The real key to getting people to understand any of this is that in our system of government all power and authority flows from the individual citizen; no government official has any power or authority whatsoever beyond that which has specifically been delegated to that office by the citizens. Delegating authority is not the same as surrendering that authority, it is merely allowing someone to represent you, stand in your shoes so to speak. The citizen retains, at the same time, the power and authority to act on his own behalf and that of his country.

    Only when people begin to understand the true nature of government in a constitutional republic can they really grasp the meaning of citizenship. We are not ruled or governed, we elect those who will represent us and serve us. Occasionally some of them will require a reminder of their proper roles and functions (such as we provided last year in Colorado when two state senators were recalled from office after defying the will of their constituencies by supporting unconstitutional laws restricting citizens' rights to keep and bear arms).
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    My personal opinion is militias, being generally composed of ill-trained civilian volunteers, were known to fail to stand fast and had a tendency to break ranks and run, unlike the regulars. "Well-Regulated" militias performed better, standing side-by-side with the Continental army. The founding fathers, in recognizing this problem, hoped that all capable citizenry would receive proper training, and to ensure their immediate availability, all the "people" should be able to retain "arms."

    Does that imply everyone should receive military training in order to bear arms? I doubt it, as "militias" were expected to provide their own weaponry of whatever nature. You'd have to ask Washington, Jefferson, Adams and the rest what they truly meant, and the last I heard, they aren't commenting.
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    Quote Originally Posted by OldVet View Post
    My personal opinion is militias, being generally composed of ill-trained civilian volunteers, were known to fail to stand fast and had a tendency to break ranks and run, unlike the regulars. "Well-Regulated" militias performed better, standing side-by-side with the Continental army. The founding fathers, in recognizing this problem, hoped that all capable citizenry would receive proper training, and to ensure their immediate availability, all the "people" should be able to retain "arms."

    Does that imply everyone should receive military training in order to bear arms? I doubt it, as "militias" were expected to provide their own weaponry of whatever nature. You'd have to ask Washington, Jefferson, Adams and the rest what they truly meant, and the last I heard, they aren't commenting.
    In the historical context of the Second Amendment use of the term "well regulated" meant exactly that, organized and disciplined. Further, there were no law enforcement agencies of any kind so law enforcement was known to be a civic obligation of all citizens, and there were no standing military forces so defense of self and community were known to be a civic obligation of all citizens.

    The existence and societal role of the militia (local, state, federal) have become clouded primarily because the populace has lost sight of these basic civic obligations as citizens, as the "select militias" (local and state law enforcement agencies, national guard and military establishments) have come to be viewed as the only legitimate authorities. In point of fact, none of these agencies possess any authorities beyond that of the individual citizen, and what authorities these agencies exercise is just what has been delegated to them by the citizenry.

    While I might delegate to my son certain chores (shoveling snow from the sidewalks, guarding the home against trespassers and thieves, etc) the responsibility for these chores remains mine, and I remain free to act in my own interests as circumstances may require.

    A community may create a police department, delegating certain authorities to act on behalf of the community, the responsibility for law enforcement remains with the citizens, and each citizen has full power and authority to act as circumstances require; indeed, each citizen has a civic duty to act in defense of himself, his family, his property, and his community.

    This is the only correct understanding of what the "popular militia" is, and the purpose that it serves. While a particular citizen may hold no warrant or commission as an official of a "select militia" organization, that citizen remains part of the "popular militia" with full authority under the constitution and laws. One might even argue that the citizen actually has greater authority, as those powers delegated to specific "select militia" organizations (law enforcement and national guard) is limited specifically to that spelled out in the laws creating said organizations, while the citizens' authority is much more broad because it is not limited by such laws. In effect, the citizenry may delegate broadly or narrowly, but such delegation does not extinguish the individual responsibilities or duties.
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    Yes, yet please recall that "militia", at the time of the writing, was generally intended as a STATES RIGHT. With so much of the current focus coming from D.C., we tend to forget that the framers intended government to operate from the bottom-up, not vice versa.
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    Quote Originally Posted by ghost tracker View Post
    Yes, yet please recall that "militia", at the time of the writing, was generally intended as a STATES RIGHT. With so much of the current focus coming from D.C., we tend to forget that the framers intended government to operate from the bottom-up, not vice versa.
    It didn't take long for things to get all flipped around. The conflict seems to have been built in.
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    Quote Originally Posted by ghost tracker View Post
    Yes, yet please recall that "militia", at the time of the writing, was generally intended as a STATES RIGHT. With so much of the current focus coming from D.C., we tend to forget that the framers intended government to operate from the bottom-up, not vice versa.
    ... and that while the rights to "militia laws" were intended to be in the province of the States, the true meaning of "the militia" was intended to be the People themselves. Truly an example of the bottom-up focus if ever there was one, the 2A's wording.
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    Quote Originally Posted by Doghandler View Post
    It didn't take long for things to get all flipped around. The conflict seems to have been built in.
    I respectfully disagree with the idea of a built-in (intended) conflict. Federalists indeed believe that Washington should be & is the ultimate authority. And I hesitantly agree that some areas of administrative control is most effectively handled when centralized. Yet it is my whole-hearted opinion that any/all areas of governing not EXPRESSLY ceded to Washington in the Constitution should be irrevocably controlled by sovereign states. To recall the old adage, "Power corrupts. Absolute power corrupts ABSOLUTELY". IMHO, we are not longer represented in Washington. We are tyrannically controlled FROM Washington.
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    My Home is My Castle and under Law you may Not enter without my permission Unless you have a signed Warrant. I and my Family will be our own Militia on our land and will protect and defend it accordingly. We will Always be a part of "We The People" unless "We The People" cave in to the Tyranny this Administration has on it`s Agenda. Then we`ll be alone but that`s ok,we`ll manage.

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    Quote Originally Posted by ghost tracker View Post
    Yes, yet please recall that "militia", at the time of the writing, was generally intended as a STATES RIGHT. With so much of the current focus coming from D.C., we tend to forget that the framers intended government to operate from the bottom-up, not vice versa.
    Quote Originally Posted by Doghandler View Post
    It didn't take long for things to get all flipped around. The conflict seems to have been built in.
    It got flipped around right around 1865 or so. You'll remember that during the Civil War there were units such as the
    1st Alabama Cavalry Regiment (Union)
    1st Delaware Cavalry Regiment
    3rd Georgia Sharpshooters Battalion
    6th Tennessee Infantry Regiment
    This was when a state was truly a State, and not a mere geographical subdivision of the federal government. The States have become states and now have no direct representation in Congress (a fact I can't help but think isn't deliberate.)

    There's also the (problem, for want of a better word) of 'language drift.'
    Everyone remembers the Flintstones, and "... we'll have a gay old time" from the introduction music. You can't really say that anymore, 'gay' means something almost totally different to us than it did a mere 40-50 years ago.
    At the time of the Revolution, "regulated" also meant "to be made regular, to be trained and equipped alike" not merely to have regulations imposed. My gram had a clock hanging on the wall of the kitchen with "Regulated Movement" emblazoned across it's face. I'm pretty sure the federal government wasn't too involved in the manufacturer of clocks back then.
    Last edited by Fallschirmjäger; January 22nd, 2014 at 06:29 PM. Reason: I dun corecketed a spellin' misteak :-p

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    18-45 ?? You mean I can't be in the Militia anymore??

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    The key word is " the people". It is the same. " people" that is being referred to in the other amendments where specific individual rights are given. That's all one needs to know, and legal jargon is not necessary for anyone to understand this.
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