James Madison rewrote the Second Amendment into its current form during the 1788 Virginia Ratifying Convention in response to that state’s largest slaveholder, Patrick Henry, demanding that Virginia’s slave patrols be explicitly protected. The real reason the Second Amendment was ratified, and why it says "State" instead of "Country" (the Framers knew the difference -- see the 10th Amendment), was to preserve the slave-patrol militias in the southern states. That was necessary to get Virginia's vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that--and we all should be too. "Well regulated militias kept the slaves in chains." Patrick Henry bluntly laid it out: "If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only [under this new Constitution], can call forth the militia." And why was that such a concern for Patrick Henry? https://freespeech.org/stories/second-amendment-was-ratified-to-preserve-slavery/ The Second Amendment is also about the need of a well regulated militia in a nation without a standing army. The 2ndA. is not simply about everyone's "right" to own a gun. And it is now well out-of-date and needs to be repealed.
You asked why. It was a great question and many great people answered it long ago. I appreciate you asking. Are we moving back to "owning" now?
"(t)he Supreme Court directly addressed the meaning of the Second Amendment only once (before 200, and that came in an odd decision involving the prosecution of a gangster, Jack Miller, for transporting a short-barreled shotgun in violation of the National Firearms Act of 1934 (NFA). The NFA was Congress’s response to the gun-fueled gangland violence of the 1920s and ’30s that had besieged the nation — including Stevens’s own home of Chicago. It strictly regulated short-barreled shotguns and other weapons, like the Thompson submachine gun, that had become popular among mobsters and bootleggers. In United States v. Miller,6 the Court held that because a short-barreled shotgun was not suitable for use in a militia, its possession was not protected by the Second Amendment, and Miller’s indictment was lawful."
Again, it’s in plain English right in the amendment. It’s the people’s right, not the militias right. Dissenting opinions are absolutely meaningless in case you weren’t aware. and no, for 200 years the courts did no such thing. Every single time this argument has come up in court, is has been completely shut down, because words mean things. And the plain wording of the amendment clearly and specifically states it’s the people’s right, not the militias right.
It may or may not have been the framers Intent in 2nd amendment to grant citizens the right to own firearms but it nevertheless did grant that right. Unless perhaps you have a different meaning for "to keep". What does "to keep" mean to you? ...the right of the people to keep and bear Arms, shall not be infringed.
It comes down to one basic fact. "shall not be infringed". It made no exceptions and it did not say it depended on militias. It never said a citizen had to belong to a militia or that a militia even had to exist all the time. That should be enough for anyone. However, there is also some logic to go along with this interpretation. Since militias were primarily voluntary, there was no requirement that a militia exist all the time. It is obvious, that they intended the citizens to own the weapons they used. It would not be reasonable for the citizen to be required to buy a weapon when a militia was formed and get rid of it when the militia no longer existed. In addition, to be able to properly use the weapon, he must have possession of it for the vast majority of the time. Otherwise his skills go away over time.
The 2nd A. has been "infringed" many times and the SCOTUS upheld the infringement. Further "infringements" are possible.
I think that is correct. Individuals have the right to bear arms, so that they could form a militia if needed by the state. And ownership of arms shall not be infringed. However, with the advancement of arms today, many rights to access of arms are infringed. Especially larger weapons, battalion level, crew serve type.
The original purpose was so that it would be controlled by individual state governments, and they could protect themselves. It was about state's rights, and trying to prevent overreach by the new centralized federal government. The entity that needed the "well regulated militia" was the people in the form of the states. This was about the states. The states did not want to have to be left entirely dependent on an army under the direct command of federal forces. What guarantee did they have that they would be protected? I think it ultimately set a dangerous precedent when the Supreme Court began applying the Bill of Rights to the states. The Constitution is all about the relationship between the federal government versus the states and people. (of course, the Fourteenth Amendment opened up a whole other can of worms)
Oh, by the way, the opening poster of this thread is being completely disingenuous, has a clear pattern of doing so in other threads, and openly does so with no shame whatsoever.
It was ridiculed because at that time people could not even imagine the federal government doing that, it just seemed totally ridiculous at the time. Doesn't that sort of make the case that the original founders would not have approved of what is happening now, or at least could not have foreseen how things would change?
I think it was, but in a very indirect passing way. It mostly seems to sort of presuppose that interfering with individual rights would/could interfere with state rights. Which of course makes sense if one considers the state militia system at that time.
The premise of Hamilton's quote suggests that a militia, being in the hands of a much larger group ('the people' ) than a standing army, is the best defense against a tyrannical government. That has always been the argument made by second amendment proponents. However, in the modern era, Hamilton's point is moot, for 2, possibly 3, reasons. 1. The government now has a standing army 2. No private 'militia' or militias can overpower America's military, a mighty force of 2 million persons, who have access to Canons Howitzers, RPGs, submachine guns, Bombs, F-22 fighters, tanks, etc. 3. America has existed now for some 250 years, and a tyrannical government or governing body, such as those of 18th century monarchs, 20th century dictatorships, etc, has yet to manifest in America, and the fickle incipient stages of the environment which existed in the late 18th century which gave rise to Hamilton's sentiments along these lines no longer exists, i.e., America's stability has proven itself, and, as such, Hamilton's fear of a tyrannical government with a standing army is a moot point. Therefore, the need for gun ownership to be a right insofar as being in the constitution is moot, given that that is what 2a was based on. Now, no one is suggesting taking away guns, I'm just saying, relegate the subject of gun ownership to the states.
It is infringed at this very moment. There are some weapons that are outright illegal to own. There are many weapons that is very difficult or extremely pricey to be able to own. A simple one is automatic machine gun. It is being infringed.
To bare arms by members of the militia is without doubt protected. Absolutely. The whole issue comes down to non militia members baring arms without restriction. It comes down to a comma that was included in some of the states votes and not in others which did end up in the final version. IF 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. HAD BEEN, as written in some states, 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. Then the right to bear arms would have delegated to those who serve in the militia and maintain an active or reservist status. That works for me even if reservists are for life. People properly trained in the use of weapons do not scare me at all, it's the crazies allowed to have guns that worry me and yes, that includes gang members. Don't hear much of gang bangers who were in a state's militia do you?
The question was actually why it was included in the 2nd A. But, I get your point. However, can you answer the questions about the discussions leading up to the 2nd A?
What is a militia? The founders thought it was a military unit formed of citizens that were willing to participate in times of war that dissolves into nothing in times of peace. There's no such thing as a non militia member.
"To keep" doesn't mean anything. "...to keep and bear arms" means to have in their possession and maintain in good working order weapons for military purposes. And the absolute clause indicates that the military purpose is to form part of a well-regulated militia. I already addressed this in the corresponding threads http://www.politicalforum.com/index.php?threads/english-101-for-gun-advocates.585785/ http://www.politicalforum.com/index.php?threads/english-102-to-keep-and-bear-arms.586083/ On the other hand, the idea that the framers could have "inadvertently" granted some "right" to own weapons for personal use, after having explicitly voted down any language in the 2nd A that would imply that, is not rational. But at least it's very imaginative.
Not sure what you mean by "what is happening now". I don't think they foresaw that one day anybody could walk into a store, buy military-style weapons, and go out on a shooting spree just because they "had a bad day". But they certainly foresaw that things would change. That's why they left in place a procedure to amend the Constitution.
We must not forget the fact that, even though discussions about including a "right" to possess guns for personal use were few, the proposals that did come up to include language addressing something like that were always voted down.
Wow, a long winding road that ultimately fails. The intent of retaining arms was so that when needed EVERYONE could be counted on to join in the defense of the locality, the state, or the nation. Which still means that having the appropriate armaments was necessary. We see letters in the formation of the nation that included "can one have cannon" to "protect from pirates who have cannon". etc. There is a letter where George Washington replied that, "most certainly" and "can I get the plans for my own".. or words to that effect. The reason we have an individual right to bear arms is that continental europe didn't afford folks that right. In most countries, you had to be a member of the nobility, and the nobility were responsible for arming their serfs. This is historic fact. The US wouldn't have nobility, thus it was the responsibility of all citizens to be armed to respond as a well regulated militia when necessary. Why do you attempt to repudiate what actually is? If folks cannot have weapons themselves, who then provides for the militias that would defend us again? Why do you suppose it is the responsibility of government then to obviate the responsibilities of the people here? Where in the constitutional construct does your theory exist? I can make it short for you. Nowhere. As in, your theory doesn't exist in the document. Your misreading of Heller demonstrates that your desire isn't construed as a normative function of the Constitution. Why, again, are you so willing to try to rewrite history to support your bogus theory?
Again, it's not. Read it. https://judicature.duke.edu/articles/stevens-j-dissenting-the-legacy-of-heller/
So, as the founders understood it, the observation is still correct, and every individual has the right to bear arms even with the equivocations you supply. They actually feared having a standing army. With a standing army, and hence the reason that your home is protected from having to quarter said standing army,( for example) means nothing in relationship changes, and perhaps becomes yet more important for individuals to not be overcome by the standing army. You simply ignore the idea that state and more importantly, federal power to oppress the people was never the intent of the founders. You would strip folks of their basic right of self preservation. And the formation of well regulated militias requires that individuals be able to keep arms in support of that future mission. I would suppose that given the relationship you foresee for the use of the standing army doesn't include say the use of said army to attack the citizens of the nation does it? And when folks swear to protect the nation from enemies foreign and domestic, do you understand that those enemies might be, for example, folks who work actively to destroy the nation by, IDK, advocating against the structure of the nation to oppress the people? Perhaps you should consider this going forward.
Why would anyone want to listen to what justice stevens thought? He made a lot of stupid decisions, and invested lots of theory that was ridiculous.
