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A 2nd Amendment Quiz


Subdeacon Joe

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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.

The Second contains two, contradictory, thoughts.

 

First, there’s the “militia.” That, by definition, is a body of armed people (in those days, men). The Founding Fathers were nothing if not realists. They knew that bodies of armed men needed “regulation” or they would soon become bodies of armed oppressors.

 

So they added a second thought, that individuals could keep and bear arms for their own protection (unstated, but presumed) and the protection of the “State” (meaning not only the legal government but also the general citizenry). This meant the ability to resist oppression by individuals or groups would have a basis in law.

 

From the beginning, therefore, we must acknowledge that any right to keep and bear arms will be subject to some measure of regulation. All regulation, by definition, will result in some “infringement” upon the regulated activity and persons. We have a built in “contradiction” in the language.

 

When these words were written the U.S. was largely frontier and only a very small portion of the citizenry resided in “settled” areas. Dealing with miscreants was as often as not a work of “self help” vice asking for the assistance of the local sheriff, who might be several days travel away. This background, and the way it has changed, is going to influence how the rights guaranteed by the Second Amendment will be enforced and protected. This is not making the Constitution a document written on “india rubber.” That would be as wrong as seeing it carved in granite.

 

So how do we read, and reconcile, these contradictory thoughts?

 

If I had the clear and concise answer to that I wouldn’t be writing here, I’d send for you. And you’d show up!!!!! :)

 

But I don’t; nor does anyone else. This dilemma is going to be resolved the same way other questions of rights have been resolved. The resolution will not be perfect, but it doesn’t have to be. It only has to be effective and accepted.

 

One more thought: there must a clear distinction drawn between a protected military activities and naval activities. When the Second was adopted it was within the ability of most people to acquire, maintain, and use a basic firearm. There were no national, or even much local, standards for arming the “militia.” Folks showed up with what they had and were organized based upon that.

 

Few people of the day could afford to buy a ship, and even fewer could afford to buy weapons and arm and crew that ship. The power of the U.S. to regulate shipping is well established. Congress has the power to regulate commerce among the States and to punish felonies and piracies on the High Seas. Federal Courts have jurisdiction over cases involving Admiralty and maritime jurisdiction. From the beginning the Federal Government held regulatory authority over maritime activities that did not extend to individuals.

 

There’s more.

 

The Constitution, itself, in Article I, Section 6, notes that Congress shall have the power to:

 

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

 

To provide and maintain a Navy;

It recognizes that armies and navies are different and require different organizational structures. In reality navies are much more expensive to have and require steady funding (note that the Army is limited to a two year appropriation but the Navy is not). Power is given in subsequent clauses to permit Congress to prescribe those structures and in Article II make the President the Commander-In-Chief. To conflate military and naval activities of the day serves to confuse, not enlighten. There is no “total package” to address.

 

Note, too, that the power to grant letters of Marque and Reprisal was ended by treaty in Europe in 1856. The U.S. is not a signatory to that treaty, but has agreed to abide by its terms. In fact, the last U.S. Letter of Marque and Reprisal was issued in 1815. It’s unclear to me whether or not any such issuance would be valid under existing International Law.

 

All rights have limits. That includes the Second Amendment. Just where those limits will be is part of our continuing national experience.

 

SQQ

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A couple of further thoughts.

 

1. from the militia clause many draw the conclusion that the 2nd amendment grants the right to keep arms that the military has.

That really isn't true since the militia is drawn from the citizens and would be armed with whatever they bring.

IE their own personal "arms". But what arms do we have a right to own and bear? Whatever one can obtain; is one answer. (Note I didn't say legally.)

As for the inevitable dribble about the 2A permitting the ownership of nukes; that is pure bull. Neither a nuke, tank, battleship, jet fighter/bomber, crew operated guns/cannons/howitzers, ICBM etc are obviously not personal arms so would not be covered.

 

2. The term "Well Regulated" does not refer to more laws nor restricting rights about arms ownership. Rather it refers to the training, organization and practices of the militia.

Recall that during the American Revolutionary War the Continental Army was subject to much efforts to train the army to work like an army. With the individuals learning the regimented procedures for loading and handling firearms. This does not actually constitute an infringement on the rights to keep and bear arms. More likely it makes the militia more effective.

 

3. It must be noted that while much of the above discussion has wandered over the subject of a standing army, many of the founding fathers did not really want a standing army.

While on todays landscape it is virtually impossible to imagine a USA without a standing army, not having one might have prevented some of the "adventurism" such as Vietnam and Iraq. (This statement is NOT intended to insult any of the efforts or sacrifices of any of the US Armed Forces. But rather to vilify the behaviour of leaders who used war as an administration crutch to divert attention from not having a useful social and economic policy.)

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