Post New

I heard an eye-opening statement today on C-SPAN, made by Michael Waldman, author of the just-published book "The Supermajority: How the Supreme Court Divided America". He stated the the original meaning of the
"right to bear arms" as used in the Second Amendment was as a "term of art" with the same meaning as the "right to serve in the military"! That is, the meaning was NOT the same as the more superficial dictionary definition that would be implied if the verb "bear" was simply taken to be equivalent to "carry".

I had not heard of this argument before. If it's valid, then it seems to me that the debate on the 2nd amendment would be ended once and for all.

So, is the argument valid?

I have no background in law, would be interested in Albaby's opinion.

I have the same question about "well regulated militia", to me that seems to mean
that rules and regulations can be applied to gun ownership. But the "right of the people to keep and bear arms shall not be infringed" seems to contradict that.

https://www.google.com/search?q=2nd+amendment+text...
"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."

I have the same question about "well regulated militia", to me that seems to mean
that rules and regulations can be applied to gun ownership. But the "right of the people to keep and bear arms shall not be infringed" seems to contradict that.

https://www.google.com/search?q=2nd+amendment+text...
"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."

Yes, but if "the right of the people to keep and bear arms" is just an "artful" (and quite unfortunate) alternative way of describing a "well regulated militia", the 2nd amendment boils down to only militias not being infringed, and thereby says absolutely nothing about individual gun ownership rights. Pretty much every household owned guns at that time didn't they? So it simply might have been unnecessary to belabor that obvious fact.

That is, the 2A would merely state that every state has a right to have a well-regulated militia, nothing more.

I had not heard of this argument before. If it's valid, then it seems to me that the debate on the 2nd amendment would be ended once and for all.

So, is the argument valid?

That argument was raised in Heller, and rejected by the Court. From the majority opinion:

"Although the phrase implies that the carrying of the weapon is for the purpose of 'offensive or defensive action,' it in no way connotes
participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that 'bear arms' had in the 18th century. In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to 'bear arms in defense of themselves and the state' or 'bear arms in defense of himself and the state.' 8 It is clear from those formulations that 'bear arms' did not refer only to carrying a weapon in an organized military unit."

https://www.law.cornell.edu/supct/pdf/07-290P.ZO

Actually, the discussion of Waldman's argument goes on for several pages in the majority opinion - the above quote starts on page 11, but the argument continues through page 18. In the above excerpt, Scalia argued that "bear arms" couldn't be a term of art that was equivalent to "carrying weapons while serving in a military unit" - because otherwise you wouldn't have a bunch of state constitutional provisions that protected citizens' right to "bear arms" in defense of themselves. He continues on to point out numerous other examples of "keep and bear arms" being used as a phrase in other contexts where it would be nonsensical to read it as a term of art only referring to the wielding of a weapon in military service. A huge chunk of the majority opinion is engaging with and rejecting the Waldman interpretation (which forms the basis of much of Stevens' dissent).

I mean, you're correct that if the Court had accepted the construction that Waldman is arguing for, Heller would have gone a different way and the Court would have ruled that there was no individual right to firearm ownership. But the Heller Court disagreed.

But they wrote "right of the people", not the "right of the militia".

I'd guess that the majority of people hunted back then, so most would have had
hunting weapons. But the Founding Fathers did not say the "right of all hunters shall
not be infringed"

I'm not somebody who believes in a strict interpretation of beliefs from the 1700's,
the Founding Fathers could not have dreamed of the amount of firepower available to
everybody in 2023 America. I'd like to think that adults in 2023 America would be
able to work this out, especially with the number of mass shootings that occur in America these days. But the NRA and it's hard core followers have deeply dug in their heels in the
"no compromise" line in the sand. I'm a gun owner, I know other gun owners, most are
willing to register their guns, and feel that AR's should be banned. A few that I know
are not willing to compromise at all.

Why can't this be placed on the ballot and voted on by the American people ?
Prohibition ( 18th Amendment ) was repealed by the 21st Amendment, why can't the
2nd Amendment be repealed ?
I don't know the answer, but I know it involves a whole lot of money being made by
the firearms industry.

So, is the argument valid?

No. The key to understanding the Second Amendment is found in Federalist 46. Quoting James Madison:

https://founders.archives.gov/documents/Madison/01...

(Madison is speaking here of a federal government intent on subjugating AMericans and what would happen if it tried)

Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men.

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it.

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of.

Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force, and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it.

There you go. The second amendment guarantees all the others.

Why can't this be placed on the ballot and voted on by the American people ?
Prohibition ( 18th Amendment ) was repealed by the 21st Amendment, why can't the
2nd Amendment be repealed ?

Because you won't get even so much as a plurality to vote for it, when in fact you need a supermajority in both houses of Congress:

https://www.archives.gov/federal-register/constitu...

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

And then after that you need 3/4ths of the states. You'd get less than half.

General response. It is an old argument and one of the original arguments making the 2d a collective right - or some people think a right of the state(minority).

They traced it back to the English Bill of Rights 1689, and it does talk of rights and liberties and then allows Protestants arms as allowed by law, as it transferred whatever right the King though he had to regulate guns to Parliament. But if you look at the English, it isn't much of a right.

Another argument is that infringed didn't have the meaning of encroached back then, it meant to break or violate:

'Infringed or Abridged'

The freedom of opinion is one of the inalienable rights of
man, and one of the great gifts of his creator; it is a privilege
which no human power ought to infringe, and no state of
society unnecessarily to abridge.
Alexander Hamilton, 18121

The first amendment is stronger than the second amendment. This
point sometimes gets lost in the public discourse, especially when an all-
or-nothing interpretation of the second amendment is being boosted. But
as Alexander Hamilton understood, there is a key difference in how the
two amendments are worded.

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.2

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 first amendment, Congress may not even abridge'lessen'the
freedoms of speech, press, and assembly. In the second amendment,
Congress may not go so far as to infringe'break or destroy'a right to
bear arms.

The key difference is the difference between the word abridge and
the word infringe. Anyone who looks up the words in English dictionaries
used in 1789'and for centuries before 1789'can find what the framers
would have found. For all the centuries leading up to the Constitutional
Convention in 1787 and the first federal Congress in 1789, the English
word infringe meant to break, to violate. It still does; we still call 'breaking
the law' and 'violating copyright' infringements. The word abridge meant
to limit. It still does. A difference in degree can become a difference in
kind, and abridgement severe enough could become infringement, but it
is essential to understand that to abridge something'a power, a privilege,
even a right'was qualitatively different in 1789 from infringement.

The difference is that we can abridge a right without infringing it. As
the framers understood, human rights have human limits. A society can 11
https://mdsoar.org/bitstream/handle/11603/20606/Co...

Yes, there is that. Language evolves. While it is the 21st century, we have to interpret their words as they understood them in the 18th century.

We also have to understand some context. There was a serious effort for the USA not to have a military. It was envisioned that state militias could be called up from amongst the masses. Eventually the Army and Navy were incorporated into the Constitution (Article 1)**, but the anti-federalists -fearing a powerful federal government- then envisioned states being able to raise a militia to oppose -if necessary- the federal. Which is mostly what Madison was talking about in the Federalist paper quoted by Dope1. In the prior paragraph to the one Dope1 quoted, he explicitly was expressing concern about subjugation of state government. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.

However, that militia was supposed to be regulated. Hamilton discussed that in Federalist 29.

It requires no skill in the science of war to discern that uniformity in the organization and discipline in the militia would be attended with the most beneficial effects.

In other words, they need to know what they're doing (i.e. have some training, some discipline and organization characteristic of a military force, etc).


**So the Air Force actually is unconstitutional. They realized that early-on, which is why you had the Army Air Corps (because the Army was constitutional), and then Navy fliers. A separate Air Force technically isn't authorized, but I think the argument was that 18th century men could not have anticipated we would have machines that fly.

Actually, the discussion of Waldman's argument goes on for several pages in the majority opinion - the above quote starts on page 11, but the argument continues through page 18. In the above excerpt, Scalia argued that "bear arms" couldn't be a term of art that was equivalent to "carrying weapons while serving in a military unit" - because otherwise you wouldn't have a bunch of state constitutional provisions that protected citizens' right to "bear arms" in defense of themselves. He continues on to point out numerous other examples of "keep and bear arms" being used as a phrase in other contexts where it would be nonsensical to read it as a term of art only referring to the wielding of a weapon in military service. A huge chunk of the majority opinion is engaging with and rejecting the Waldman interpretation (which forms the basis of much of Stevens' dissent).


Well, just because "the people's right to keep and bear arms" isn't being used in an artful way to refer only to "the right to form a militia" elsewhere doesn't mean that it didn't mean solely that in the 2A! I wonder how Waldman would reply to the arguments in the Heller decision.

We also have to understand some context. There was a serious effort for the USA not to have a military. It was envisioned that state militias could be called up from amongst the masses. Eventually the Army and Navy were incorporated into the Constitution (Article 1)**, but the anti-federalists -fearing a powerful federal government- then envisioned states being able to raise a militia to oppose -if necessary- the federal.

Which was the other major prong of the Heller Court's reasoning. They also viewed the 2A as serving as a bulwark against the federal government neutralizing the state militia in order to accrete to itself a monopoly on armed power. The Founders were keenly against the idea of the only army being the one controlled by the new President - they generally didn't want the President to have a standing army at his command, and didn't want the States to be without their own armies (at need). Subject to the caveat (which we should always keep in mind) that there were minority viewpoints on that subject among the Founders - Washington, for example, was a believer in having a (small) standing army:

https://press-pubs.uchicago.edu/founders/documents...

Anyway, Scalia's argument is that if the federal government has the power to disarm the citizen's militia, it would effectively destroy the citizen's militia - which outcome the 2A intends to prevent. For the citizen's militia to have meaningful existence, its members have to have access to firearms and be reasonably conversant with their use - which can only happen if they have the individual right to own firearms. The citizen's militia consists of all adult citizens. Therefore, the federal government can't prohibit individual citizens from owning firearms.

Well, just because "the people's right to keep and bear arms" isn't being used in an artful way to refer only to "the right to form a militia" elsewhere doesn't mean that it didn't mean solely that in the 2A!

True....but not very persuasive. As a super high-level principle of statutory construction, words are typically given their ordinary meaning, unless there's a reason not to give them their ordinary meaning. Some terms are defined, some terms are inarguably used as terms of art ("ex post facto" or "letters of marque and reprisal") - but when a term isn't clearly being used in an artful way, the presumption is that such term just means what it means.

So if "keep and bear arms" had both a common usage meaning and a 'term of art' meaning back in the day, you would use the common usage meaning to construe the 2A, unless there was a very good basis for not doing so.

As always, thanks for the educated responses, albaby, appreciate the low-key manner in which you do it. It seems crazy to me that the words of men from the 1700's are supposed to be so perfect, so irrefutable, that men and women from 2023 cannot modify them to suit the times that we live in.
There were no automatic weapons in the 1700's, so the words of the Founding Fathers seem ill suited to live by in 2023.

It seems crazy to me that the words of men from the 1700's are supposed to be so perfect, so irrefutable, that men and women from 2023 cannot modify them to suit the times that we live in.

We don't believe that their words are perfect or irrefutable. The Constitution can be modified, and has been modified on numerous occasions.

What's at issue here isn't whether what they wrote in the Constitution is good (much less perfect), but rather the shared agreement that what's in the Constitution is the law until it is changed. No one argues that the absolute perfect minimum age for a Presidential candidate is 35 years old - it might be 30, or 40, or 25 - but we all agree to abide by what the Constitution says is the minimum age unless it is amended.**




**Well, most "all" of us agree. There are Constitutional scholars who might take a contrary position, or who rather might dispute what "amend" means in the context of the Constitution. Looking at you, Bruce Ackerman.

It seems crazy to me that the words of men from the 1700's are supposed to be so perfect, so irrefutable, that men and women from 2023 cannot modify them to suit the times that we live in. There were no automatic weapons in the 1700's, so the words of the Founding Fathers seem ill suited to live by in 2023.


I couldn't agree with you more. The fact that there have been amendments over time certainly reflects the reality that our Constitution.....that any Constitution....needs to evolve over time for its values to remain relevant to the current culture/technology/stressors, etc etc.

"We don't believe that their words are perfect or irrefutable. The Constitution can be modified, and has been modified on numerous occasions."
--------------------------------------------------------

So can modifying ( or repealing ) the 2nd be put on the federal ballot and voted on by all registered voters ???

I'm pretty damn sure that the 2nd would be struck down ( or modified to ban AR's ).
It is a loud, vocal MINORITY, not MAJORITY, that are for the right to bear assault rifles in peacetime America.

Why doesn't this happen ??

Cash talks, NRA and firearms industry interest supersede the voice of the majority of Americans ??

Think this is hyperbole on my part ?? put it on the ballot, let all Americans decide.
I ain't no bleeding heart anti-gun person, if it goes to a vote and America decides that assault rifles are a fundamental tenet of modern day America, I'll live with that. Shit, I'll go out and purchase one so I'll be ready for the coming storm, lol. Got lots of places to practice shooting in my neck of the woods.

So can modifying ( or repealing ) the 2nd be put on the federal ballot and voted on by all registered voters ???

There is no "federal ballot" generally (all elections are conducted by states), and especially not for Constitutional amendments.

The Constitution can be amended if Congress passes an amendment by a 2/3 vote of both Houses, and such amendment is then passed by 3/4 of state Legislatures. While presumably a state Legislature could ask their citizens by plebiscite or vote whether they should approve the amendment, the Constitution does not require it.

It's really, really hard to pass a Constitutional Amendment.

I'm pretty damn sure that the 2nd would be struck down ( or modified to ban AR's ).

I doubt it. Repealing the 2A isn't often polled, but it almost invariably is rejected by a very large majority. For example:

https://www.washingtonpost.com/news/wonk/wp/2018/0...

Short of repeal, you'd probably never get a majority of people to agree on any specific change to the 2A. Anything narrow will be dismissed by some people as insufficient ("why only AR rifles? Why not other weapons?"); anything broad will run into the same concerns that lead people to reject a total repeal.

Albaby

But the states don't have militias anymore. The National Guard might qualify, and would conform to Hamilton's concern about proper discipline (and training).

Or at least most don't. Turns out FL has one. The FSG. So members of the FSG would be covered by the 2A, as well as the FL Nat Guard. Per the reading of Hamilton's writings.

Therefore, the federal government can't prohibit individual citizens from owning firearms.

We end up with individual rights to keep and bear that are unconnected to the militia because the prefatory clause has no effect on the operative clause of to keep and to bear. The Constitution outlined the Militia:

Section 8.
Clause 15. The Congress shall have Power * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have Power * * * 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.

So this is the Constitutional militia. And under Ch 12 of the Federal Code it is all able bodied men between 17 and 45. Modernly, the organized militia in the code is the National Guard, and the unorganized militia is the pool of able bodied men (17-45) that both the Federal Government and the State can draft from and enlist. There are a few bodies that might be considered militia - DeSantis' State Guard if he turns it military (looks like it), but there are no private or self appointed militia. The States had dealt with Shays rebellion and kept that power to themselves and the Fed.

So the individual right is based mostly on self defense. The easier way to deal with the second amendment is to alter it from a right that seems to be sacrosanct to one that can be limited. Trying to repeal or amend it is too hard, but we can interpret it so it can be limited.

"I doubt it. Repealing the 2A isn't often polled, but it almost invariably is rejected by a very large majority. For example:"
------------------------------------------

Cool, thanks for clearing that up for me.
I'll be hitting the gun shops soon, MAGA/Confederate want to come up here, I'll be ready.
Not the only one thinking like this,either, been discussed around a few campfires.

I'll be hitting the gun shops soon, MAGA/Confederate want to come up here, I'll be ready.
Not the only one thinking like this,either, been discussed around a few campfires.

No sign of anything like that that I can see. I've been driving around Jacksonville, Lakeland, and now in Sebring, Florida and I have only seen a couple of Confederate Flags, a few Trump memorabilia. I crossed the country and saw very little of that on my tour. We're polarized, but I got the sense that people are having to deal with the day to day and not terribly involved with politics too much. My Cuban LL has "Let's Go Brandon". but he's more concerned about his divorce and the cost of his home insurance. He's got a metal roof over the old roof and you can't do the wind mitigation ties properly to reduce his insurance. His insurance seems to be tied to how big his roof is.

What is interesting is when you explore northern parts of Jacksonville there are much more signs of Evangelicism than there is MAGA. It looks like Trump is going to lose, do some not so hard time, but the White Nationalism (racism) is still there. But people have to deal with the day to day and that isn't getting any easier.

Our problem is we are awash with guns and most of the gun violence is with handguns, not AR15s or assault rifles. The politics behind the guns is that any slight concession on guns is seen as a mistake, the beginning of a slide down the slippery slope to where all guns are confiscated. That's extremely remote, but we do have a few people who talk that way. It's a vote getter to appeal to gun owners so you end up with guns, immigrants, and abortion as major issues, along with kitchen table issues.

The 2d Amendment isn't going away but the idea that it is a right that can't be limited is just false.

So if "keep and bear arms" had both a common usage meaning and a 'term of art' meaning back in the day, you would use the common usage meaning to construe the 2A, unless there was a very good basis for not doing so.

James Madison wrote the amendments, right? I don't suppose James Madison himself had tried to clarify the meaning of the 2A. I guess not, or the debate might well be long over.

There's apparently been more research done on the meaning of "bear arms" "back in the day". It's a field called corpus linguistics. The "new" evidence suggests that "bear arms" was much more commonly applied in the context of a militia than not! I thought this was a good 8 minute discussion of that - https://youtu.be/AT2jMJk1akA

^^There's apparently been more research done on the meaning of "bear arms" "back in the day". It's a field called corpus linguistics.^^
You have to look at the history first and then utter the words completely living in that context, in order to find the meaning. Our national mythology encourages Americans to see the Second Amendment as a result of the Revolutionary War. But if you want to go back, the original meaning was completely unrelated to that. Dunbar-Ortiz is a good researcher on the subject. He reckons it relates to priorities even in the centuries before 1776 - the individual white settler was then understood to have a right to bear arms participate in near-constant ad-hoc, self-organized violence against Native Americans. The colonists' use of guns was brutal. Based on work by military historian John Grenier, Dunbar-Ortiz describes how early colonists practiced what they called "the first way of war" or "savage war". Unlike war between "advanced" European nation-stations, in this mode of warfare Anglo settlers organized "irregular units to brutally attack and destroy unarmed Indigenous women, children, and old people using unlimited violence in unrelenting attacks." We change the meaning of words over time, similarly as we change the interpretation of the Bible to wash out all the violence and craziness, but if you want to take the constituion literally to intended meaning you have to go back in the history. If they were living today they wouldn't want people carrying guns around given the lack of natives - we have already killed all of them - but the wealth in hands of the few worthy of it, is very much alive and well. Freedom of speech has completely disappeared - we can talk, but no-one listens - no-one has the capacity to speak on the TV at will, and at length, and if you say the wrong thing you are never invited back.

There's apparently been more research done on the meaning of "bear arms" "back in the day". It's a field called corpus linguistics. The "new" evidence suggests that "bear arms" was much more commonly applied in the context of a militia than not! I thought this was a good 8 minute discussion of that - https://youtu.be/AT2jMJk1akA

No. That's old and was covered in Heller. The Justices made light of the linguistics approach. But the data base accessed to support that interpretation is huge, nothing to take lightly. Yhey had a search term criticism too..

It's a darn shame that the 2A was written so grammatically awkwardly:

2A - "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."

Versus either one or both of these sub-amendments:

2Aa - "The right of the people to form a state-run militia shall not be infringed."

2Ab - "The right of the people to own and carry firearms on their person at all times shall not be infringed."

Of course, we'd still have arguments about what a "firearm" is and what a "militia" is, but at least some of the ambiguity of the current 2A would have been eliminated.

"The right of the people to own and carry firearms on their person at all times shall not be infringed."

Please excuse another post from a visitor, but if this: In 2019 the murder rate from guns was fully 22 times that in the EU. which "The Economist" writes here:

Original link:
https://www.economist.com/leaders/2023/07/31/how-t...

Link for non-subscribers:
https://archive.li/d6Zq1

is correct, the whole discussion can be put to rest.

Post New

US Policy FAQ

---

Contact Shrewd'm
Contact the developer of these message boards.