"A well regulated Militia, being necessary to the security of a free State....."
How exactly does the NRA/GOP/SCOTUS decide that this means that anyone can become a vigilante patrolling the streets and becoming judge, jury, and executioner?
Scalia, and the GOP segment of the SCOTUS, essentially dismissed half of the actual Amendment as "merely prefatory" so that Mr. Originalist, Antonin Scalia, could "discover" a right that gives every (white) person the right to carry a firearm.
elleng
(136,043 posts)'A well regulated Militia, being necessary . . .'
guillaumeb
(42,649 posts)the first half of the Amendment is merely prefatory.
elleng
(136,043 posts)(thanks for remembering.)
Deuxcents
(19,694 posts)I dont have my Constitution book out but I believe it says .. a well regulated and trained Militia. I contend we have the Army, Navy, Air Force n Marines n National Guard n Coast Guard that fit that description. Regulated and well trained. Ill get my book out..
guillaumeb
(42,649 posts)Thus the perceived need for a well-regulated militia.
Deuxcents
(19,694 posts)Were able to defend themselves. Ive been looking and dont see well trained in the Construction..only interpretation. Good to get a history lesson here..ty
paleotn
(19,178 posts)they were also known as the slave patrol. Saint Domingue / Haiti was always in the back of slaver's minds.
guillaumeb
(42,649 posts)AndyS
(14,559 posts)get a feel for what all that stuff means. Madison, author of the 2nd Amendment, had some very definite thoughts of what a militia was and it's not any of the crazy stuff we hear today.
History teaches a lot if it doesn't get in the way of political objectives . . .
LastDemocratInSC
(3,829 posts)and IIRC Madison said the local militias were not intended to attack the government but to protect it in the absence of a standing army. There were a number of local militia rebellions in those days (Shay's, the Whiskey rebellion) and those events were not well received by the new government.
AndyS
(14,559 posts)that would form the nucleus of a militia called up from the population at large. As for the citizenry he said the best that could be expected was that they gather occasionally for training.
This is pretty far from the bunch of good ole' boys playing with AR-15s out in the woods we see today.
dchill
(40,467 posts)Kablooie
(18,768 posts)There is no part that is merely prefatory.
It was crazy that this was decided.
WHITT
(2,868 posts)the SCOTUS held that a "well regulated Militia" was equivalent to the modern day National Guard.
lastlib
(24,902 posts)"A well-regulated militia" is the superior clause--the subject of the sentence. The other two phrases are subordinate clauses--telling WHY the superior clause "shall not be infringed." It is essentially saying that the RIGHT of each state to "a well-regulated militia" shall not be infringed, BECAUSE it's necessary for security, and BECAUSE that is the repository for "the people's" right to bear arms.
Whatever Scalia said is absolute unmitigated bullshit, of course.
Yes we need to stretch the proportionality to require at least as much insurance and fees as on a car or truck.
guillaumeb
(42,649 posts)and his tortured reasoning was somewhat original in Constitutional law.
jimmy the one
(2,717 posts)William Rawle, in 1825 revised 1829, wrote in his 'A View of the Constitution', that the individual right (rkba) clause was a 'corollary' to the well regulated militia clause (wrm). A corollary is generally a derivation from a higher rule or principle.
What Rawle said in 1825: The corollary, from the first position, is, that the right of the people to keep
and bear arms shall not be infringed.
Scalia in Heller, and most all pro gun undereducated 2ndA sycophants, subscribed and twisted this into Rawle supporting the individual rkba interpretation! Using their usual claptrap of specious and fractured reasoning, they created a concoction song and dance to wiggle around Wm Rawle's 2ndA views.
By 1825 the dichotomy between americans who supported the militia view & those the independent view had blossomed. The latter were at first considered scofflaws to the militia act of 1792, but, as today, the dark side gained strength as the well regulated militia became less well regulated.
Here is Rawles' 'first half' of his 1825 view of the 2nd article/amendment. The first half is what I call the domestic half, there is a second half, the foreign half. Observe how often he mentions a militia, underlining mine. His only mention of rkba is as a corollary to the wrm:
In the second article, it is declared, that a well regulated militia is necessary
to the security of a free state; a proposition from which few will dissent. Although
in actual war, the services of regular troops are confessedly more valuable; yet,
while peace prevails, and in the commencement of a war before a regular force
can be raised, the militia form the palladium of the country. They are ready to
repel invasion, to suppress insurrection, and preserve the good order and peace
of government. That they should be well regulated, is judiciously added. A
disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to
its own country. The duty of the state government is, to adopt such regulations as
will tend to make good soldiers with the least interruptions of the ordinary and
useful occupations of civil life. In this all the Union has a strong and visible
interest.
The corollary, from the first position, is, that the right of the people to keep
and bear arms shall not be infringed
In a Fordham Law Review article that was cited in Justice Breyers Heller
dissent, {Saul} Cornell claims that Rawle viewed the right to bear arms as inextricably
linked to the militia.
I should note that Rawle was off when he wrote in 'View' that states which wanted to secede from the union, could. Nonetheless each topic should be judged along with other notable writers, to corroborate.
Rawle's second half on the 2nd amendment - the 'foreign half'. The 'prohibition' he refersr to is rkba not being infringed:
The prohibition is general. No clause in the Constitution could by any rule of
construction be conceived to give to congress a power to disarm the people. Such
a flagitious attempt could only be made under some general pretence by a state
legislature. But if in any blind pursuit of inordinate power, either should attempt
it, this amendment may be appealed to as a restraint on both.
In most of the countries of Europe, this right does not seem to be denied,
although it is allowed more or less sparingly, according to circumstances. In
England, a country which boasts so much of its freedom, the right was secured to
protestant subjects only, on the revolution of 1688; and it is cautiously described
to be that of bearing arms for their defence, suitable to their conditions, and as
allowed by law. An arbitrary code for the preservation of game in that country
has long disgraced them. A very small proportion of the people being permitted
to kill it, though for their own subsistence; a gun or other instrument, used for
that purpose by an unqualified person, may be seized and forfeited. Blackstone,
in whom we regret that we cannot always trace the expanded principles of rational
liberty, observes however, on this subject, that the prevention of popular
insurrections and resistance to government by disarming the people, is oftener
meant than avowed, by the makers of forest and game laws.
This right ought not, however, in any government, to be abused to the
disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an
indictable offence, and even the carrying of arms abroad by a single individual,
attended with circumstances giving just reason to fear that he purposes to make
an unlawful use of them, would be sufficient cause to require him to give surety
of the peace. If he refused he would be liable to imprisonment.
Note that by 1825 the english game laws Rawle refers to had been largely resolved, gun confiscation was limited to the early 1700's and subsequent incidents were rare. 'Disarm the people' should be construed as disarming the citizen militia, not taking away musquettes from ordinary citizenry, something any congress then would never have considered to begin with.