The Second Amendment

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kroxquo
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The Second Amendment

#1 Post by kroxquo » Wed Jun 01, 2022 8:50 am

"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."

In the thread on guns, bombs, etc. Flock stated that discussing the meaning of the "well-regulated militia" part of the Second Amendment was another topic. I would argue that the meaning is relevant to the topic of school shootings, but I will agree that it is deserving of a separate thread.

The Second Amendment was written into the Bill of Rights at a time when the fear of a professional, standing army was fresh in the minds of the framers. It was also written at a time when the most common firearm (a smooth-bore musket) could shoot one round at a time, three times a minute (if you were really good at it) with an effective range of about 100 yards. A rifle would extend the range considerably, but limited you to one round at a time, two times a minute (if you were really good at it). The expectation was that in times of crisis, people would take up arms to defend the country and then return home. It was little more than ten years after the ratification of the Bill of Rights that that notion became out-dated and the U.S. began mustering its own permanent, standing army.

So where does that leave the 2nd Amendment in the 21st Century? If there truly is no limitations on the right to keep and bear arms, then shouldn't I be allowed to own a rocket launcher, or a tank, or a nuclear weapon? And if those are restricted then where are the limits on what is restricted?

It is accepted law that there are limits to the various amendments. Libel laws restrict total freedom of the press and public safety laws restrict freedom of speech (using Justice Holmes's crowded theater example). So how do we define the limitations on this amendment?

It is a long-standing legal precedent that the freedoms guaranteed in the Bill of Rights and 14th Amendment apply to the states as well as the federal government. The wording of the amendment doesn't specify that only Congress is limited in restricting weapon ownership, so how do states have the authority to do the same thing?

And the question to Flock that prompted this and is open to any and all who want to respond - what is the meaning of a "well-regulated Militia"?
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Re: The Second Amendment

#2 Post by flockofseagulls104 » Wed Jun 01, 2022 9:20 am

Here is what I think is a pretty non-biased history of the 2nd amendment.

https://historycooperative.org/history- ... amendment/

Lots of arguments on all sides.

But, in my view, guns have been around in one form or another since the establishment of this country. With rare exceptions, because we are humans and will never live in a utopia, there has been nothing like we have been experiencing with gun violence in the past several decades.

We need to have a 'conversation' focusing on what has changed in our culture in these past several decades. It is an undeniable truth that guns, by themselves, don't kill people. It is the person who has the gun. Or the knife, or the explosive. Why do we now have so many people who want to use whatever tool they can find to kill multiple other people who have done nothing to them? That is the question we need to figure out the answer to, if we can, and find an answer to, if there is one.
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Re: The Second Amendment

#3 Post by BackInTex » Wed Jun 01, 2022 10:16 am

I don't think the question should be "What is the definition of a well regulated milita?". I think the question should be "What was the purpose of including that phrase as a preamble to "the right to bear arms shall not be infringed."?" None of the other amendments have such a preamble.
..what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms.
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Re: The Second Amendment

#4 Post by flockofseagulls104 » Wed Jun 01, 2022 10:26 am

BackInTex wrote:
Wed Jun 01, 2022 10:16 am
I don't think the question should be "What is the definition of a well regulated milita?". I think the question should be "What was the purpose of including that phrase as a preamble to "the right to bear arms shall not be infringed."?" None of the other amendments have such a preamble.
My opinion is worth as much or little as everyone else's. But in the context of the times the Founders were living in, I believe it means 'To protect themselves from tyranny'.
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Re: The Second Amendment

#5 Post by Bob Juch » Wed Jun 01, 2022 10:28 am

flockofseagulls104 wrote:
Wed Jun 01, 2022 10:26 am
BackInTex wrote:
Wed Jun 01, 2022 10:16 am
I don't think the question should be "What is the definition of a well regulated milita?". I think the question should be "What was the purpose of including that phrase as a preamble to "the right to bear arms shall not be infringed."?" None of the other amendments have such a preamble.
My opinion is worth as much or little as everyone else's. But in the context of the times the Founders were living in, I believe it means 'To protect themselves from tyranny'.
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Re: The Second Amendment

#6 Post by Appa23 » Wed Jun 01, 2022 11:17 am

:)
BackInTex wrote:
Wed Jun 01, 2022 10:16 am
I don't think the question should be "What is the definition of a well regulated milita?". I think the question should be "What was the purpose of including that phrase as a preamble to "the right to bear arms shall not be infringed."?" None of the other amendments have such a preamble.
While you are correct that none of the amendments to the US constitution includes a similar prefatory clause, it was common in state constitutions at that time to have a prefatory clause before an operative clause, with the interpretation that the inclusion of one stated purpose was not viewed as limiting the operative clause.

At the time, “well-regulated” was a term meaning well-organized or well-prepared. It had nothing to do with government regulation.

Also, for whoever referenced “you can’t yell fire in a crowded theatre”, it has been supplanted many times over as a First Amendment test.

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Re: The Second Amendment

#7 Post by silverscreenselect » Wed Jun 01, 2022 11:53 am

BackInTex wrote:
Wed Jun 01, 2022 10:16 am
I don't think the question should be "What is the definition of a well regulated milita?". I think the question should be "What was the purpose of including that phrase as a preamble to "the right to bear arms shall not be infringed."?" None of the other amendments have such a preamble.
Because in 1787, we didn't have a standing army. So if the British decided to reclaim New England or the French decided to take over the midwest, we had no effective way to defend ourselves. Thus, the need for local militias, which could be rounded up in a short period of time. And since many people had guns for hunting back then, there was minimal need for the militia to keep large armories.
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Re: The Second Amendment

#8 Post by kroxquo » Wed Jun 01, 2022 12:09 pm

Appa23 wrote:
Wed Jun 01, 2022 11:17 am
:)
BackInTex wrote:
Wed Jun 01, 2022 10:16 am
I don't think the question should be "What is the definition of a well regulated milita?". I think the question should be "What was the purpose of including that phrase as a preamble to "the right to bear arms shall not be infringed."?" None of the other amendments have such a preamble.
While you are correct that none of the amendments to the US constitution includes a similar prefatory clause, it was common in state constitutions at that time to have a prefatory clause before an operative clause, with the interpretation that the inclusion of one stated purpose was not viewed as limiting the operative clause.

At the time, “well-regulated” was a term meaning well-organized or well-prepared. It had nothing to do with government regulation.

Also, for whoever referenced “you can’t yell fire in a crowded theatre”, it has been supplanted many times over as a First Amendment test.
Thank-you for enlightening me. Brandenburg v. Ohio clarified the limits on free speech and defined its limits. The point, however, is still that there are limits on the Bill of Rights to protect public safety. You are correct, however, in saying that it was Holmes's opinion should not be the basis for those limitations.
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