2nd Amendment – Shall not infringe vs well order militia

OK, here is where I make many of the supports of the second amendment mad. 

Well regulated militia vs shall not be infringed.

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.

For years, those 27 brief words have been the source of contentious debate — seen by some as inalienable protection against tyranny, by others as a dangerous anachronism.

Many in the 2nd amendment community focus on the ‘shall not be infringed‘ phrase in the 2nd Amendment. They use this as a blanket argument to say that any firearm law is unconstitutional.  As such, the government has no right to enforce any restriction on firearm possession.

We could get into days worth of debate over the constitutionality of firearm laws under the ‘shall not be infringed’ phrase.’ I support many of these positions.

However, while the government may not have the right, they have the power. This power will remain valid until we can get a Supreme Court with the backbone to stand up for the 2nd Amendment. For our part, we must make our voice heard. 

For this discussion, I would like to approach the constitutionality of firearm law from a different view. I want to focus on the entire 2nd Amendment. 

'A Well Regulated Militia'

What is a militia?

At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns and colonies.  In many cases, these militias were expected to arm themselves. They were also expected to become proficient with their firearm on their own.

When the Constitution was drafted, the militia was a state-based institution. However, they were not a state-controlled entity.

In many cases, the militias owed their allegiance to their community. In other cases, a militia had a patron that provided support. Often these militias owed their allegiance to the patron. In all cases, allegiance was owed to the upper levels based upon loyalty, not mandated from the state down. 

Even today we voluntarily accept allegiance to our city, state, and nation. Were reject a mandated allegiance from the top down.

What did it mean to be well regulated?

One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge.

Well-regulated in the 18th century tended to be something like well-organized, well-armed, or well-disciplined. 

It didn’t mean ‘regulation’ in the sense that we use it today. Militias were not regulated but the state as National Guards are today.

There’s been nuance there. It means the militia was in an effective shape to fight. In other words, it didn’t mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty. 

'being necessary to the security'

What type of security was referred to in the 2nd Amendment?

To get to the root of this topic, consider the climate of the United States at the time. The country had just fought a war and won its independence. It was also expanding west.

There were plenty of reasons to feel unsafe. “Security” had a very palpable meaning to the population of the time. The government had an expanding country with limited resources.  The militias would be expected to protect local residents from attack and invasion.

The militias would also be expected to provide physical protection from government overreach. The idea of a state militia would also be attractive because it serves as a deterrent against national tyranny.

If government forces tried to take over land or overstep their boundaries, you would have an institution in place — the militia — that would outnumber any army.

With the size and scope of the modern United States military, and the fact that militias as we know them no longer exist, that notion is hard to imagine today. In the debate over the Second Amendment, this phrase, “a well-regulated militia,” remains one of the most cited and argued parts of the sentence. 

'of a free state'

What did a free state mean?

It may seem obvious, but the Constitution bore a lot of contemporary moralism, and not every word is well-defined.

In this case, the term is referring to ‘state’ as in one of the states of the original colonies. James Madison had the 1777 Virginia Declaration of Rights by his side when he wrote the Bill of Rights and he essentially copied and pasted language from it. Mason is talking about not only the free state of Virginia. He is also talking about a broader state of freedom.

'the right of the people'

What kind of rights?

This is another highly-contested area where it helps to know more about how the framers of the Constitution thought about complex ideas like “rights.

Today, when we think about ‘rights,’ we think of them as regulations and exemptions.

Back at the birth of our nation, they had a different quality. They were more moralistic.

This viewpoint is reflected in the Declaration of Independence. Rights were inherited; not granted.

The framers definitely believed in natural rights that were are endowed by a creator. They believed we are born into a state of nature before we form governments.

In addition, we are endowed with certain fundamental rights. These natural rights included the right to religious expression, free speech, property, and more.

However, the original constitution did not specifically include the tenets of the Second Amendment.

The framers did not talk about the right to bear arms as one of the set of natural rights. However, it is fair to say that the framers certainly believe there was a right to alter and abolish government.

In this light, it is historically accurate to say that the framers did recognize a natural right of self-defense.

Who are the people?

Even the term “people” has limitations. When some say people, they mean individual persons. However, ‘people’ can be read to mean different things in different articles.

There is a more basic question of semantics.  By “the people,” is the Second Amendment referring to people as private entities, or as participants in the militia? The legal consensus is that the 2nd Amendment applies to individual rights, within reasonable regulations.

More on that below.

'to keep and bear arms'

What are Arms in this context, and what is the scope of bearing Arms?

In the “District of Columbia v. Heller,” the Supreme Court decided the rights outlined by the Second Amendment did apply specifically to possession of firearms for purposes of self-defense.

The decision struck down the Firearms Control Regulations Act of 1975, which heavily regulated owning and keeping firearms in the District of Columbia.

If one reviews the decision, one can see the Court considered the awkward phrasing of the Amendment. The Justices divided the Amendment into an operative clause: “right of the people to keep and bear arms,” and a prefatory clause: “A well regulated Militia, being necessary to the security of a free State.” The court determined the relationship between these phrases, as well as the historical context of the Constitution’s creation, clearly provided an individual right.

The term “arms” is also an ever-changing one, and there are ongoing debates about assault weapons and emerging firearm technologies.

One thing people disagree about is whether assault weapons bans are constitutional. They also disagree about how we should interpret the constitution in terms of history or in light of new technologies.

'shall not be infrenged'

What does infrenge mean?

For modern applications and purposes, sadly we must turn to how the Second Amendment is presented in a court of law. For the most part, these applications have remained consistent since the Heller decision in 2008 and a similar case, McDonald v. City of Chicago, which was decided in 2010.

It’s really striking that since these Supreme Court decisions… lower courts have upheld almost all of the gun regulations they have asked to review

So what does this word salad men?

I think the framers of the Constitution would be surprised at the conversations we have today. 

Words like “militia” and “rights” are loaded with historical context and nuance that can act as a Rorschach test, leading even the best-intentioned interpreters to different conclusions. These 27 words wouldn’t be so incendiary if there were any clear answers.

Here is what I have gleaned:

  • Many on the Left would believe that the modern equivalent of a militia is the National Guard. However, what we have discussed so far has debunked this argument.
  • It is the responsibility of the individual to provide physical protection from government overreach.  The individual must possess firearms comparable to what the military uses. 
  • If we’re are going to cite the 2nd Amendment as a justification of firearm position, we must be ready to do our duty. There are many ways can do that duty. To some, this would be joining an organized group. For other of us, this would involve protecting our home and family. Part of this duty is to obtain the skills and knowledge necessary to safeguard. This duty could be but is not limited to formation training, range time, and personal training.
  • The 2nd Amendment does not grant the right to possess a firearm just because it is cool. The possession must be related to the individual’s responsibilities to the 2nd Amendment.
  • We are the defenders of the 2nd Amendment. I am not talking about an armed revolt. We must make our voices heard. Stop bitching on Facebook. Get out, and support candidates at the local level support the 2nd Amendment. Move from the local level to the state level and from there to the national level. 

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