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2nd amendment being an absolute guarantee of freedom is up for interpretation. What well regulated militia are you a part of?

by JTbane 7y ago

rayiner 7y ago
It’s a “debate” created for political reasons. If the right to bear arms was a right people like Larry Tribe believed in, they’d never engage in the contortions they do with the text. If I say “for X purposes, do Y” I’m telling you to do Y. You can’t do Z just because you think that serves X purposes better. And even if you believe the right must be connected to militias, those aren’t necessarily formal organizations. The Minutemen, for example, where self-organizing independent militias that were composed of just whoever brought a gun with them. They comprised 1/4 of the militias that fought in the Revolution. Many of the state militias, too, were BYOG. You think the framers just forgot how they won the war they had just fought? The point obviously is to protect the possibility of such militias being formed by preventing the government from disarming ordinary citizens. Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine. But then you don’t need to rely on the tortured reading of the “militia” phrasing. Just say it’s an outmoded right that we are not going to enforce.
- fnord123 7y ago
  >Just say it’s an outmoded right that we are not going to enforce. Just remove it.
  - moate 7y ago
    If only it were that easy.
  - some_random 7y ago
    Ok, then do that instead of trying to subvert it.
- krapp 7y ago
  >Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time. You know perfectly well that's not what the doctrine of a "living Constitution" is about. Constitutional scholarship is not made up of people who agree with you and people just making shit up.
- madhadron 7y ago
  > Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine. As opposed to what? Textualist? The Constitution is not an unambiguous, coherent document that can have a rigorous interpretation without masses of precedent and case law. It was intentionally ambiguous so that broad swathes of people would vote in favor of it, thinking it said what they wanted. We've been arguing about it ever since. The usual criterion is to maintain stability so we know what to expect, but occasionally someone manages to engineer a major reversal, like the reading of the 2nd amendment in the 20th century switching to allow everyone and his brother to have firearms without restraint. I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors.
  - linuxftw 7y ago
    Even if it's found to be ambiguous, that would only limit the federal governments power, not increase it. > I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors. Then you must believe secession is constitutional and legitimate.
    - madhadron 7y ago
      I don't follow the logic behind either of your statements. Could you please elaborate?
      - linuxftw 7y ago
        Sure. Part 1: The US Constitution grants enumerated powers to the US Federal Government. If there is any ambiguity in the Constitution as to whether or not the US Federal government can do something, then the answer is 'they can't.' Part 2: If you believe the constitution is tyrannical in itself, that future generations owe no allegiance to it, then you logically support secession. Why should anyone be bound by any agreement made in the past, perpetually, without external remediation? Secession is the answer; in order for the Constitution to be valid, it has to be voluntary, and it's not voluntary unless secession is legitimate.
exabrial 7y ago
See that's the thing about a right. You don't have to justify it to possess it. Let me substitute some words in your statement: Right to vote being an absolute guarantee of freedom is up for interpretation. What well regarded scholars group are you a part of?
anarazel 7y ago
Even without considering the full phrasing of the 2nd to be related to militias, there's still considerable room for regulation. If one actually reads Scalia's Heller opinion, it explicitly says that regulation, of gun posession is of course not ruled unconstitutional. Nor are restrictions on the types of firearms unconstitutional.
- deleted 7y ago
  [deleted]
alfromspace 7y ago
Being an adult citizen, which is exactly what the founders meant, and is really not at all open to interpretation. In the parlance of the time, well-regulated meant well-equipped, and militia meant every armed adult male. This is crystal-clear in the federalist papers, and various writings, passages, and speeches from the exact same people who wrote the damn thing.
- andrewla 7y ago
  The Federalist papers are not, as I recall, crystal clear on this issue (that is, what "well-regulated" means". If anything, they say the opposite. From "Concerning the Militia": "To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss" This pretty clearly carries the implication that being "well-regulated" is more than just well-equipped. It is, however, clear that the intention was to continue the policy of citizens bearing arms, even treating that as an implicit part of the culture of the time. Madison says, in "The Influence of the State and Federal Governments Compared", as an offhand remark, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, ...", and in comparison to Europe, it is expected that Americans can be trusted with guns: "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."
  - tomschlick 7y ago
    Here is a decent list of quotes from founders: https://thefederalistpapers.org/us/the-founding-fathers-explain-the-second-amendment-this-says-it-all https://thefederalistpapers.org/us/the-founding-fathers-expl... Notably... “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.” – Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778 “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788 I ask who are the militia? They consist now of the whole people, except a few public officers.” – George Mason, Address to the Virginia Ratifying Convention, June 4, 1788 “The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776 “No free man shall ever be debarred the use of arms.” – Thomas Jefferson, Virginia Constitution, Draft 1, 1776
merpnderp 7y ago
This was set in stone in DC vs Heller. Of the two dissents, the Stevens dissent is one of the poorest examples of judicial reasoning on display and nearly ensures this will never be overturned.
sb057 7y ago
It's "the right of the people to bear arms," not the right of the well-regulated militia. Furthermore, "regulated" in the context of 18th century refers not to government oversight[1], but to such a thing being regular. [1] The modern definition of "regulated" to mean this comes mainly from the creation of the FDA and other such government agencies which made meat, drug, and other such products regular as opposed to varied.
- thfuran 7y ago
  >Furthermore, "regulated" in the context of 18th century refers not to government oversight[1], While that's true, it doesn't mean that the militia was meant to be free of government control. The constitution provides for congress calling forth the militia and The Militia Acts of 1792 gave the president the power to call upon the militia to quell invasion or rebellion.
  - DuskStar 7y ago
    > The constitution provides for congress calling forth the militia We still have that - it's called the draft now, though. ("The Militia" is every man of fighting age and condition, in the original definition)
    - deleted 7y ago
      [deleted]
jack_h 7y ago
Technically all able bodied men between 17 and 45 are part of an unorganized militia according to Title 10 Section 246 of the US Code.
dang 7y ago
That last bit breaks the site guidelines by being a personal attack and flamebait. Please don't do that on HN, regardless of how wrong another commenter is or how strongly you disagree. It leads to dumber, nastier threads. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html We detached this subthread from https://news.ycombinator.com/item?id=20883656 https://news.ycombinator.com/item?id=20883656 and marked it off-topic.
deleted 7y ago
[deleted]

2nd amendment being an absolute guarantee of freedom is up for interpretation. What well regulated militia are you a part of?

by JTbane 7y ago

2nd amendment being an absolute guarantee of freedom is up for interpretation. What well regulated militia are you a part of?

rayiner 7y ago

It’s a “debate” created for political reasons. If the right to bear arms was a right people like Larry Tribe believed in, they’d never engage in the contortions they do with the text. If I say “for X purposes, do Y” I’m telling you to do Y. You can’t do Z just because you think that serves X purposes better. And even if you believe the right must be connected to militias, those aren’t necessarily formal organizations. The Minutemen, for example, where self-organizing independent militias that were composed of just whoever brought a gun with them. They comprised 1/4 of the militias that fought in the Revolution. Many of the state militias, too, were BYOG. You think the framers just forgot how they won the war they had just fought? The point obviously is to protect the possibility of such militias being formed by preventing the government from disarming ordinary citizens. Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine. But then you don’t need to rely on the tortured reading of the “militia” phrasing. Just say it’s an outmoded right that we are not going to enforce.

fnord123 7y ago
>Just say it’s an outmoded right that we are not going to enforce. Just remove it.
- moate 7y ago
  If only it were that easy.
- some_random 7y ago
  Ok, then do that instead of trying to subvert it.
krapp 7y ago
>Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time. You know perfectly well that's not what the doctrine of a "living Constitution" is about. Constitutional scholarship is not made up of people who agree with you and people just making shit up.
madhadron 7y ago
> Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine. As opposed to what? Textualist? The Constitution is not an unambiguous, coherent document that can have a rigorous interpretation without masses of precedent and case law. It was intentionally ambiguous so that broad swathes of people would vote in favor of it, thinking it said what they wanted. We've been arguing about it ever since. The usual criterion is to maintain stability so we know what to expect, but occasionally someone manages to engineer a major reversal, like the reading of the 2nd amendment in the 20th century switching to allow everyone and his brother to have firearms without restraint. I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors.
- linuxftw 7y ago
  Even if it's found to be ambiguous, that would only limit the federal governments power, not increase it. > I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors. Then you must believe secession is constitutional and legitimate.
  - madhadron 7y ago
    I don't follow the logic behind either of your statements. Could you please elaborate?
    - linuxftw 7y ago
      Sure. Part 1: The US Constitution grants enumerated powers to the US Federal Government. If there is any ambiguity in the Constitution as to whether or not the US Federal government can do something, then the answer is 'they can't.' Part 2: If you believe the constitution is tyrannical in itself, that future generations owe no allegiance to it, then you logically support secession. Why should anyone be bound by any agreement made in the past, perpetually, without external remediation? Secession is the answer; in order for the Constitution to be valid, it has to be voluntary, and it's not voluntary unless secession is legitimate.

exabrial 7y ago

See that's the thing about a right. You don't have to justify it to possess it. Let me substitute some words in your statement: Right to vote being an absolute guarantee of freedom is up for interpretation. What well regarded scholars group are you a part of?

anarazel 7y ago

Even without considering the full phrasing of the 2nd to be related to militias, there's still considerable room for regulation. If one actually reads Scalia's Heller opinion, it explicitly says that regulation, of gun posession is of course not ruled unconstitutional. Nor are restrictions on the types of firearms unconstitutional.

deleted 7y ago
[deleted]

alfromspace 7y ago

Being an adult citizen, which is exactly what the founders meant, and is really not at all open to interpretation. In the parlance of the time, well-regulated meant well-equipped, and militia meant every armed adult male. This is crystal-clear in the federalist papers, and various writings, passages, and speeches from the exact same people who wrote the damn thing.

andrewla 7y ago
The Federalist papers are not, as I recall, crystal clear on this issue (that is, what "well-regulated" means". If anything, they say the opposite. From "Concerning the Militia": "To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss" This pretty clearly carries the implication that being "well-regulated" is more than just well-equipped. It is, however, clear that the intention was to continue the policy of citizens bearing arms, even treating that as an implicit part of the culture of the time. Madison says, in "The Influence of the State and Federal Governments Compared", as an offhand remark, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, ...", and in comparison to Europe, it is expected that Americans can be trusted with guns: "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."
- tomschlick 7y ago
  Here is a decent list of quotes from founders: https://thefederalistpapers.org/us/the-founding-fathers-explain-the-second-amendment-this-says-it-all https://thefederalistpapers.org/us/the-founding-fathers-expl... Notably... “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.” – Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778 “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788 I ask who are the militia? They consist now of the whole people, except a few public officers.” – George Mason, Address to the Virginia Ratifying Convention, June 4, 1788 “The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776 “No free man shall ever be debarred the use of arms.” – Thomas Jefferson, Virginia Constitution, Draft 1, 1776

merpnderp 7y ago

This was set in stone in DC vs Heller. Of the two dissents, the Stevens dissent is one of the poorest examples of judicial reasoning on display and nearly ensures this will never be overturned.

sb057 7y ago

It's "the right of the people to bear arms," not the right of the well-regulated militia. Furthermore, "regulated" in the context of 18th century refers not to government oversight[1], but to such a thing being regular. [1] The modern definition of "regulated" to mean this comes mainly from the creation of the FDA and other such government agencies which made meat, drug, and other such products regular as opposed to varied.

thfuran 7y ago
>Furthermore, "regulated" in the context of 18th century refers not to government oversight[1], While that's true, it doesn't mean that the militia was meant to be free of government control. The constitution provides for congress calling forth the militia and The Militia Acts of 1792 gave the president the power to call upon the militia to quell invasion or rebellion.
- DuskStar 7y ago
  > The constitution provides for congress calling forth the militia We still have that - it's called the draft now, though. ("The Militia" is every man of fighting age and condition, in the original definition)
  - deleted 7y ago
    [deleted]

jack_h 7y ago

Technically all able bodied men between 17 and 45 are part of an unorganized militia according to Title 10 Section 246 of the US Code.

dang 7y ago

That last bit breaks the site guidelines by being a personal attack and flamebait. Please don't do that on HN, regardless of how wrong another commenter is or how strongly you disagree. It leads to dumber, nastier threads. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html We detached this subthread from https://news.ycombinator.com/item?id=20883656 https://news.ycombinator.com/item?id=20883656 and marked it off-topic.

deleted 7y ago

[deleted]