Different interpretation of the 2cnd Amendment

[wgoforth]

I have interpreted the second amendment to mean that we the citizenry ARE the militia. I recently came across a different interpretation that made sense, but I never heard it this way....maybe you all are ahead of me, but new to me.

The "people" and the "militia" are two different groups. That the colonies had just come out of subservience to England where the militia confiscated the guns. That while it is necessary to have a well regulated militia, the militia could not interfere with the rights of the people to own guns...that is, the army could not do what the English army had done.

Anyone else understand it this way?

[JALLEN]

There is a great deal of judicial writing on the interpretation of the Second Amendment. This synthesizes the various arguments and positions, the serious ones anyway, as opposed to the crackpot type, on what the "proper" interpretation ought to be. I would start with District of Columbia v. Heller 554 US 570 (2008) which you can read free online here at http://www.law.cornell.edu/supct/html/07-290.ZS.html" onclick="window.open(this.href);return false;.

[seamusTX]

It was not a militia that the United States revolted against. It was the uniformed British Army. That's why we call them "redcoats."

The U.S. Constitution, Section I, Article 8, defines the powers of Congress. In this section, within a few lines, the army and navy are clearly distinct from the militia:

12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13: To provide and maintain a Navy;

14: To make Rules for the Government and Regulation of the land and naval Forces;

15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Also the tradition of a citizen militia goes back hundreds of years in Anglo-Saxon common law. There are plenty of writings from the revolutionary period (that is, 1770-1790 or so) about the formation of the militia.

The militia was not identical to "the people." For most of history, the militia consisted of able-bodied free men within a certain age bracket, something like 18-45.

I suggest Stephen P. Halbrook's The Founders' Second Amendment for a solid scholarly foundation on these issues.

P.S.: Arms did not mean only guns in the 18th century. Every fighting man had a sword, saber, or a hefty knife that would be illegal in Texas today.

- Jim

[DocV]

US Code
Title 10, subtitle A, Part I> Chapter 13, Section 311
§ 311. MILITIA: COMPOSITION AND CLASSES

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[apostate]

In the context of the Bill of Rights, I always understood "the people" whose right to keep and bear arms shall not be infringed to be the same "people" who have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. In fact, all credible evidence says when "the people" are referenced in the Bill of Rights, the original intent was the same group of people throughout.

[Texas Dan Mosby]

The "people" and the "militia" are two different groups.

Yes, and no.

NO, because "people" means everybody. Man, woman, child of every age. Not everyone would be in the "militia".

YES, because the "militia" is drawn FROM the "people", and while the "militia" is a select group, they are STILL drawn FROM the "people", using arms that belong TO the "people", NOT the state.

So while one COULD say that the "militia" and the "people" are two distinct entities, in reality, they are one in the same, because despite INITIAL standards for membership in the "militia", those standards may change out of necessity, and where would the "militia" draw from to fill the ranks? The "people". Well, the REMAINING "people".

That the colonies had just come out of subservience to England where the militia confiscated the guns.

Do some research. The only elements that participated in the confiscation of arms were British soldiers directly serving the crown, and sympathetic local "militia" raised to work FOR the British soldiers serving the crown.

Our forefathers KNEW that the biggest threat to our liberty would come from a tyrannical GOVERNMENT. The second amendment was included in our constitution to serve as a check to tyranny, the ONLY way a government can maintain tyrannical control of the people they are supposed to be SERVING, is by maintaining a monopoly of arms. Without arms, the people can't fight their armed oppressors. WITH arms, on the other hand, they stand a chance.

[wgoforth]

The "people" and the "militia" are two different groups.

Yes, and no.

NO, because "people" means everybody. Man, woman, child of every age. Not everyone would be in the "militia".

YES, because the "militia" is drawn FROM the "people", and while the "militia" is a select group, they are STILL drawn FROM the "people", using arms that belong TO the "people", NOT the state.

So while one COULD say that the "militia" and the "people" are two distinct entities, in reality, they are one in the same, because despite INITIAL standards for membership in the "militia", those standards may change out of necessity, and where would the "militia" draw from to fill the ranks? The "people". Well, the REMAINING "people".

That the colonies had just come out of subservience to England where the militia confiscated the guns.

Do some research. The only elements that participated in the confiscation of arms were British soldiers directly serving the crown, and sympathetic local "militia" raised to work FOR the British soldiers serving the crown.

Our forefathers KNEW that the biggest threat to our liberty would come from a tyrannical GOVERNMENT. The second amendment was included in our constitution to serve as a check to tyranny, the ONLY way a government can maintain tyrannical control of the people they are supposed to be SERVING, is by maintaining a monopoly of arms. Without arms, the people can't fight their armed oppressors. WITH arms, on the other hand, they stand a chance.

Yes, this has/had been my understanding as well. The documentary I saw was pro second amendment, but interpreted it so that it is saying that in establishing a militia, we are still allowed to keep our arms and not have the militia to disarm us. I had not heard that interpretation before.

[OldCannon]

This is a common gun-control agenda item. "Militia" doesn't refer to citizens, just military, therefore governments have rights to regulate and control access to arms.

Problem is, that's false. Others above have cited the historical reasons why. Many people get tripped up on the words "militia" and "free state" in the second amendment. Militia was, and still is, comprised of ordinary armed citizens. George Washington, in fact, despised militia soldiers, although he begrudgingly found them useful at times. The "free state" part, in gun controller's minds, refers to the established individual states, but in fact refers to the collective definition of "the state" regarding the union itself.

The history is that the original bill of rights granted these rights (not privileges) to individuals and spelled out what the federal government could do. The 14th amendment, ironically, was written to wrest away laws created by specific states that infringed those rights (although, as an example, I think it's still _technically_ a felony in Texas if you own a firearm and are homosexual -- unless those laws got removed from the Texas Penal Code).

[seamusTX]

Not to quibble too much (I would never do that ) but the word state in the Constitution never means the federal government. It refers only to the individual states.

This is clear in the clause that I quoted above:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

It is also clear in the text of the 10th Amendment, which was drafted separately:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The country as a whole always was referred to as the United States, and in writings of the time people often used the phrase "these United States," recognizing that the country was a union of sovereign states.

In The Federalist, you can find a lot of concern about the individual states controlling militias of their citizens, for example, the militia of Massachusetts citizens controlled by the Massachusetts General Assembly. They had great caution about the federal army becoming a tool of oppression (which nowadays is pretty much limited to the tinfoil hat crowd).

- Jim

[RPB]

I have interpreted the second amendment to mean that we the citizenry ARE the militia. I recently came across a different interpretation that made sense, but I never heard it this way....maybe you all are ahead of me, but new to me.

The "people" and the "militia" are two different groups. That the colonies had just come out of subservience to England where the militia confiscated the guns. That while it is necessary to have a well regulated militia, the militia could not interfere with the rights of the people to own guns...that is, the army could not do what the English army had done.

Anyone else understand it this way?

As far as I can tell, all above posts are correct, but I'll add to them some historical info and things not often mentioned nor taught... (not "politically correct" by today's no-bullying Liberal gumdrops and rainbows people, though historically factual)

That's fairly accurate, the THIRD Amendment (written 45 minutes later) has the same 2 groups/categorizes as the Second.
I've written and told people for years, but a Harvard Prof with no relatives on this content at the time my relatives actually wrote those who has an anti-gun agenda reached more lawmakers than I do.

Some of what follows=just to explain how I know what I know, my family told me; they've always known ... rather than saying some Harvard History Professor told me so or a recent Court opinion said ...

My way of seeing it is from history rather than dictionary definitions or judicial writings of someone's opinion. I rarely mention this, but ... just as historical fact ... not my opinion nor endorsement of their thinking at the time ...
The first category in the Second/Third soldiers/militia is pretty self-explanatory

Not saying everything in History is something to be proud of ... just stating rarely mentioned historical facts here which do relate to the Second and Third Amendments and "People/Property Owners":
As a side note, the second category in the Second/Third (People/Property Owners) are similar to each other, remembering the times, the "People" didn't actually MEAN everybody. Man, woman, child of every age ... Property Owners would be those who could vote/own land etc under the law at that time "People" rather than Indians /Women/Slaves, [[[The three-fifths compromise is found in Article 1, Section 2, Paragraph 3 of the United States Constitution]]] and I'm not sure about the "People" category (Family doesn't really discuss old sexism/racism issues nowadays, the women won't allow it ) but obviously Property Owners didn't include Indentured Servants even if they were white folks who indebted themselves to work in return for payment of the Ship Passage here (a few of those were relatives of mine too, as well as a few men in my family who married "non-people" John Basse B: 1616 married in 1638 Keziah B: 1618 (Christian Name Elizabeth, the daughter of Robin the Elder, Robin the Elder was Chief/King (Weroance) of the Nanesmond Indians, of the Algonquin (PowatanTribe). ) (My grandad, named after his great great great ....grandad, was John Willis Bass ... I'm not condoning sexism/racism, just stating history as our family says they know it was when they were there)

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viewtopic.php?f=94&t=51793&p=629841&hil ... nt#p629841" onclick="window.open(this.href);return false;

Not only does the THIRD relate to the SECOND Amendment, but both are based upon Statements in the Declaration of Independence (I may have mentioned those here, I'll search)

Yeah, here
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I''ll link to a post I made after a recent article and quote myself in part ( I rarely give out this much personal info lol )

http://patdollard.com/2012/02/the-pledg ... -426577981" onclick="window.open(this.href);return false;
I'm descended from a small group who in this country, in small groups, changed elections in this country, beginning with Ruth Alden (daughter of John Alden and Priscilla Mullins of the Mayflower)+John Bass (son of Samuel Bass-Grandfather to Pres John Adams ) through the Adamses (darn Tea Partiers, especially Samuel Adams) and on down through the changing of election laws in 2000 and Uncle Harvey (back when even Rick Perry was a Democrat) ... In the autumn of 2000, Harvey Bass, (((( the owner of Harvey Bass. Furniture -a group of one, unless you count Marie, his wife- upon writing on a cardboard box in Muleshoe, Texa, changed Federal Election laws----and ... to admit that the respondents had, in fact, violated the law.2. 1 The case of the ''Muleshoe Four'' is Federal Election Commission)))) ...

and other relatives working in and for the Government in many positions of the Government my family was involved in making after we got tired of obeying the Brits (although one was the appointed as first judge under the Brits here, he heard cases up to ten dollars ...and some as Elected Representatives etc since then. Time and space limits listing them all :) If curious, check out all volumes of "Three episodes of Massachusetts history" by a relative CHARLES FRANCIS ADAMS [those Adamses liked to write lol] (available at the archives of any Ivy League University) and one can learn about part of my small group of relatives,

As far as "militia" Obviously we had no army nor National Guard organized, but we realized we WOULD be needing one, and having just fought against Britain's while we technically "belonged to them" we didn't trust a standing army, but knew we needed one for defense as a NECESSARY evil (Hence the reference to "NECESSARY" (an evil thing, unwanted by many, but necessary) in the Second Amendment ...

Not very much of the above will be taught in any Harvard History class by that newcomer to our Country, which is a shame since several signers of those Documents wee Harvard Grads (Hancock I think, and Adams I know ... that's a story for another time

[Purplehood]

I was under the impression that the Founding Fathers tried to avoid a National standing-army and hoped to rely exclusively on the Militias of the various colonies (states).

In my mind, the Militia IS the People, and vice versa.

[jimlongley]

And, just to throw one more dash into the mix, I have always wondered if maybe the right to keep and bear arms was protected so that we the people could regulate the militia.

[RPB]

I was under the impression that the Founding Fathers tried to avoid a National standing-army and hoped to rely exclusively on the Militias of the various colonies (states).

In my mind, the Militia IS the People, and vice versa.

If the militia/soldiers = the People
Then that would mean the Soldiers who want to force you to quarter them are the people/property owners

[Purplehood]

I was under the impression that the Founding Fathers tried to avoid a National standing-army and hoped to rely exclusively on the Militias of the various colonies (states).

In my mind, the Militia IS the People, and vice versa.

Then that would mean the Soldiers who want to force you to quarter them are the people/property owners

I am not sure how you drew that conclusion.

The term "Soldiers" imply membership of a standing-army. Occupiers. Foreign or Domestic.

[RPB]

I was under the impression that the Founding Fathers tried to avoid a National standing-army and hoped to rely exclusively on the Militias of the various colonies (states).

In my mind, the Militia IS the People, and vice versa.

Then that would mean the Soldiers who want to force you to quarter them are the people/property owners

I am not sure how you drew that conclusion.

The term "Soldiers" imply membership of a standing-army. Occupiers. Foreign or Domestic.

The 2 categories of persons in the two Amendments below are color coded... understand the mistrust of Standing Armies we had immediately surrounding the Revolution and the relation of the Third Amendment to the Second Amendment, which were written about 45 minutes apart...

Third Amendment
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in manner to be prescribed by law.

Second Amendment
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

"being necessary" means it was recognized that a military/militia/armed "officials"/soldiers/police/defenders from Indians ... was needed as "a necessary evil" ... compromise to get it ratified ...

Town militias
Colonial era, pre-1774
The early colonists of America considered the militia an important social structure, necessary to provide defense and public safety. http://en.wikipedia.org/wiki/Militia_%2 ... C_pre-1774" onclick="window.open(this.href);return false;
^ Wills, Garry (1999). A Necessary Evil, A History of American Distrust of Government Page 27. New York, NY; Simon & Schuster. ISBN 0684844893

So, your big East town folk weren't as likely to get Indian killed, so they'd have less need for a Militia, and guns ... and your frontier folk have more need for a militia, and guns to protect from both Invasion AND the Militia/standing army/police/ distrust) So we elected Rick Perry and they Elected Bloomberg ... (not much changed) but the compromise got it ratified by all