Gun Rights Supporters Shouldn’t Ignore the Second Amendment’s Prefatory Clause

Second Amendment Prefatory Clause Militia

courtesy gunculture2point0.wordpress.com

Last night we included a link in the daily digest to a post by Ryan McMaken at lewrockwell.com entitled Why We Can’t Ignore the “Militia” Clause of the Second Amendment. It deserves special attention as it’s a wonderful survey of the history of the militia in this country, a review of the thinking and writing of the Founders on the subject, and a very rational review of the differences between an “organized” and an “unorganized” militia.

As Brion McClanahan has shown, the Second Amendment — like the First Amendment — was never written to apply to the states themselves, but to Congress. The states were still free to regulate the ownership of weaponry in their own constitutions and by their own legislatures. Most state governments, however, elected to include provisions in their own constitutions protecting private gun ownership as an element of the state’s overall militia strategy.

This is understandable given the long tradition of the “unorganized militia” in American history. While some advocates of gun control might claim that gun ownership is guaranteed only to those engaged in active militia service, this idea is directly opposed by the provisions in state constitutions guaranteeing private gun ownership and a general inclusion in the militia of all able-bodied males. This notion was recognized by policymakers even before ratification of the federal constitution, as noted by legal historian David Yassky.

The article also pinpoints the exact moment the Second Amendment was relegated to second class status as an enumerated right. Not only the exact moment, but the reason.

Ironically, though, Parker’s explanation and defense of the Militia Act of 1903 serves largely as an unwitting epitaph and eulogy for the idea of the unorganized militia in the US. The National Guard, as created by the Militia Act, would spell the doom of the unorganized militia in the US, and serve to completely undermine the Second Amendment and its defense of decentralized military power in the US.

As a glimpse of the depth and breadth of the analysis (it’s a short article), there is even notice given of how the Founders would have viewed today’s “militia”, and the National Guard.

Clearly, this stands in contrast to the idea of today’s National Guard. According to Yassky:

the Founders’ did have a concept that approximates today’s National Guard — but it was a concept they disapproved. This is the “select militia” — a specially trained part of the citizenry. To the Founders, a select militia was little better than an army. The Philadelphia Convention explicitly rejected a proposal to create a “select militia” for the federal government, as did the Third Congress. The Constitution’s proponents, moreover, repeatedly denied Anti-Federalist charges that Congress’ power to “provide for training” the militia would lead to creation of a select militia.

As a primer on the concepts of “gun rights” in America, the article is pro-2A argument gold for fighting off claims that the Founders intended gun ownership to be only a collective right. It deflects the civilian disarmers’ attacks that purport to prove the National Guard is the same entity as the militias of old. 

In short, I invite you to, if you haven’t already, click on the link and read the entire referenced article. Then, after some consideration, comment here with your analysis. We need this exercise to help focus our minds on the issues at hand, formulate appeals for returning to the ideas of the Founders, and to publish proactive messages wherever we are still allowed.

comments

  1. Good article. I’ve always enjoyed reading McMaken’s work and even wrote an article on my own blog based on his from the Mises Institute. I remember sitting in high school getting the indoctrination treatment and my history teacher insisting the “well-regulated militia” meant National Guard and nothing else. Thanks for the insights and I look forward to reading Ryan McMaken’s full article. I’m also impressed with the mention of Lew Rockwell, too. I’ll be coming back to this blog more often. Love it!

    1. avatar Leighton Cavendish says:

      Imagine that most of your classmates swallowed the Kool-Aid and believed that lib/dem teacher and their interpretation.
      See my post below for the logic that I impart to people that are so misguided…

  2. avatar Leighton Cavendish says:

    I don’t…but the right is for THE PEOPLE
    we get to keep and bear arms so that we can form the militia if/as/when needed
    the right is not …no right…is for the militia
    all the rights are for individuals…
    this particular right guarantees that the militia will be available if/when/as needed
    it does NOT say you are required to be in a militia to obtain this right…
    it clearly says: the right of THE PEOPLE to keep and bear arms shall not be infringed
    THE PEOPLE…not THE MILITIA
    the people make up the militia…not the other way around

    1. avatar Omer says:

      You’re still thinking in the post Lincoln era of Federal might makes right. When the 2A was written, it ONLY restricted the general (or federal) government from infringement. Think of it as what the UN is supposed to do & what it can’t do, the states we’re some conglomerated mass of indistinguishable people. The states were/are their own countries. The states recognized the INDIVIDUALS’ right to bare arms. The founders would have questioned the prudence and the motives if a state wanted to infringe upon it’s citizens’ right to arms, but they would not have the individual states couldn’t legally infringe due to the federal constitution.

  3. avatar anarchyst says:

    The term “well-regulated” in 1800 parlance was defined as “well-disciplined” and “well-ordered”, NOT by “laws”. The term “regulated” was in use in the 1800s to describe “being in control” as well. Cattle drivers and others who maintained farm and cattle lands were known as “regulators”–keeping the property and livestock “in good order”, nothing more. The present interpretation of the prefatory clause (that anti-Second Amendment types like to use to deny Second Amendment “rights” is dead wrong.

    1. avatar CZJay says:

      Very old military literature has “regulations” you must follow to be a good soldier.

      1. avatar tdiinva says:

        Regulation meant drilled according to the “Regulation” which in 1787 meant drilled according to von Steuben’s “Blue Book.’

        1. avatar frank speak says:

          focus on some of those early scenes in “Drums Along the Mohawk” to get an idea of what they had in mind…everybody was included that could act to defend the community…..

        2. avatar tdiinva says:

          Great book

        3. avatar Kenneth says:

          Which the unorganized militia in the colonies did not follow. That’s the rules that the British accused us of breaking when they complained so bitterly that we colonials wouldn’t fight fair. Europeans had many rules of war that they followed religiously. We didn’t. Our reaction was; This is war. There’s no rules. (otherwise known as; yuck fou and the horse you rode in on, buddy.)

  4. avatar tdiinva says:

    Both supporters and opponents of the Second Amendment focus to much on the prepatory clause. The authority for and regulation of the Militia is found in Article I Section 8, paragraphs 15 & 16. Properly understood, the Militia Clause of the Second Amendment us merely a nod to the main body of the Constitution. The Second Amendment is about individual rights. Don’t fall into the trap of thinking that the Second is about Militia.

  5. avatar CZJay says:

    Oddly, when I make the argument the founders did I am called an anarchist by 2A guys. It’s a hard fight…

    1. avatar SouthernPhantom says:

      There is no shame in being an anarchist.

      1. avatar Omer says:

        Exactly, being a nihilist is different story, I look at the destructive “anarchists” and think nihilism is a more apt description, but I also look at the word decimate and think one out of ten being destroyed.

  6. avatar Michael says:

    “Don’t fight (mourn), ORGANIZE.” Quote and historical significance? Anyone? It’s a slow day, let’s mix it up. 30

  7. avatar Brainman says:

    When I lived in Maryland, I always thought it was funny when gun-grabbers referenced the militia as being the only people who should have guns. Maryland code states that all able bodied citizens are members of the militia.

    1. avatar frank speak says:

      the national guard can be federalized…making it a “select militia”…and little different from a standing army…private citizens can be deputized to act in the defense of the community…the western posse is a classic example of that……

    2. avatar strych9 says:

      Funny, the Feds have the same thing. It’s called 10 U.S. Code § 246

      “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard…

      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”

      1. avatar Omer says:

        I call that selective service.

        1. avatar strych9 says:

          Then you need to either re-read the law or take a class on reading comprehension.

  8. avatar Kendahl says:

    According to the Militia Act of 1903, which is still in force, the Unorganized Militia consists of every male at least 17 years old and less than 45 years old who is not part of the National Guard or Naval Militia. That raises three questions:
    (1) What about possession of firearms by males from 17 to 20 years old?
    (2) What about possession of firearms by males 45 years of age and older?
    (3) What about women?

    1. avatar BehindEnemyLines says:

      The 2nd and 14th Ammendments. In Heller, SCOTUS also ruled that one doesn’t need to be in a militia to exorcise their gun rights.

      1. avatar Rocketman says:

        Read my previous post and you’ll see why the SC ruled the way it did. According to Alexander Hamilton, the militia is all of the people!

  9. The “unorganized militia” term is misleading. While a “select militia” (sometimes called “special militia”) has its officers put in place by the government, an “unorganized militia” chooses its own officers from within its ranks. Treating “self-organized” as having the same meaning as “unorganized” is incorrect, and is a subtle bit of statist propaganda.

  10. avatar Rocketman says:

    The militia act of 1903 didn’t change a thing. Alexander Hamilton wrote that the “militia” were abled bodied males then not currently in military service and some public officials between the ages of 16 to 45 years of age. (Remember that back then the average life expectancy age was much less than now) All other people were considered “The militia of the residue” according to him. All the people are the militia!

    1. avatar Sam I Am says:

      Perhaps you didn’t read the actual article. Specifically the quote, “…the militia shall consist of every able-bodied citizen between eighteen and forty-five, and divides the militia into two classes the organized militia or National Guard, and the unorganized or reserve militia.” Reading the article, you would have noted the statement that National Guard as conceived in 1903 would have been considered. in 1789, a standing army controlled by the central government

      The act established that the “organized militia” was none other than the National Guard (not a peoples militia as understood in 1789). That statement changed the accepted meaning of the Second Amendment from individuals, to an established organization not of the choosing of the individual states. The statement converted state controlled militia into a hybrid construct, at best. It is the genesis of the entire “collective right” argument we contest today. That hybrid established the generally perceived end to individual protected rights, thus an end to RTKBA as it is understood by POTG. If the 1903 act had changed nothing, the 2010 Supreme Court ruling the Second Amendment an individual right would have been unnecessary.

  11. avatar BD says:

    The first amendment addresses Congress and limits Congress’ right to restrict the delineated rights.

    The second amendment does not address any particular government and just says that the delineated right shall not be infringed.

    I read the first as addressed to Congress and the second to every government from Congress, to the State to the County, to the city within the US.

    1. avatar Sam I Am says:

      You would be incorrect about the original intent of the founders, but correct after the 14th Amendment. We have a habit of imposing modern thinking (from modern education) on people and affairs of the 18th century.

      The states (colonies if you like) considered themselves sovereign and superior to any central government. The central governments (there were two) could not create the original states, and the constitution provides that whenever Congress creates a new state, that new state enters the union with the full rights and powers of the original thirteen.

      Each original state already had constitutions in being, prior to the Confederation, or the actual ratification of the stronger compact we call “the Constitution”. If the founders had announced that the intent was for the new constitution to supersede and be enforced against the states (other than the powers specifically delegated to the central government), what we know as the Constitution would never have been ratified. As it was, there was great opposition among the delegates regarding states ceding power to a strong central government.

      There are no writings from the period wherein the founders declared the U.S. Constitution would apply, in full, to all levels of government within the nation, and that individual state constitutions were moot upon ratification of the national compact.

  12. avatar sound awake says:

    the unorganized militia may be making a comeback

    and that right soon:

    “Last week, for the first time the Iowa Electronic Market indicated a majority likelihood that Democrats will win the house even as the GOP holds the Senate.”

    https://www.zerohedge.com/news/2018-08-26/democrats-set-win-house-what-happens-next

    whatever guns and ammo you ever thought about buying buy it now before it becomes unavailable or cost prohibitive or even illegal

    the republicans will fold like a cheap suit on anything and everything of grave importance if the dems win the house back

  13. avatar Toni says:

    Personally i have always felt much the same as the Founders and in particular the Anti-Federalist Founders, that the formation of a standing state or federal govt controlled army is ALWAYS a threat to liberty. This applies not just to the army but also to “unelected” police forces where for example “police chiefs” are nominated and employed by the local council and not “elected” by the community at large. Once elected the sheriff does have the power to deputize people from the community to assist in upholding the law but only as needed. It is a service position to the community to be given only upon deep consideration of the character of the persons standing for election.

    and i am not even American 🙁

    in australia i have been known to cast a ballot in black ink where there were no candidates i felt were suitable with all names crossed out and in NOT NEGOTIABLE style write NO SUITABLE CANDIDATES. Here voting is compulsory so abstaining from the vote for the reasons above are not permissible. We also dont have the power to “elect” any of the police force which means they are not answerable to we the people in the final analysis

  14. avatar TWP says:

    The founders were smart people with good command of the English language. The competing popular interpretations of the 1st clause seem to be: 1) It means arms are restricted to “militia” under full government control or 2) It’s superfluous hand-waving immaterial to the “right of the people”that follows. It’s nice to read an analysis that attaches real meaning and purpose to the words they chose without reducing them to one or the other. Unfortunately all the business about sovereign states seems to be water under the WBTS bridge. Thanks for linking this, it’s the most intelligent thing I’ve read today.

  15. avatar Jason A Somers says:

    The Army is not only paid, it is supplied with all necessary rations, food, weapons, etc. A militia is by voluntary participation only. You provide all necessary war materials or do without. Several acts or definitions of the militia or “national guard” have changed but the 2nd amendment has not.

    1. avatar Sam I Am says:

      “A militia is by voluntary participation only. You provide all necessary war materials or do without.”

      Not quite.

      From the U.S. Constitution –
      “The Militia Clauses – Article I Section 8, Clauses 15 and 16 of the Constitution”

      “[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

      “[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;”

      Note that Congress is responsible for arming the militia. Note also that Congress can call forth the militias of the separate states, as necessary, to enforce the laws of the union. The Second Amendment was inserted, among other reasons, to ensure the states could refuse to be used against one another…and the standing army would be too small to force state compliance. Congress hasn’t ever shown much interest in the equipping and arming of the militia.

  16. avatar Danny338 says:

    “As Brion McClanahan has shown, the Second Amendment — like the First Amendment — was never written to apply to the states themselves, but to Congress.”

    Which is plainly contradicted by how the amendments are worded.

    1. avatar BD says:

      That is what I was alluding to earlier. Sam I Am’s reply is obviously well versed in the history of the document and the strongly supported in by the intent of the Founders.

      The questions are as follows.
      1. If the entire document was only to limit Federal powers, then why not say that up front? And why address the first to Congress, and then not address Congress in every one of the amendments?

      2. And if the States were completely not under the Constitution (prior to the 14th Amendment), then, hypothetically, as a settler moving through the States, headed for the prairie, should I expect that the guns I bought in North Carolina to be ‘discovered’ with a bogus search, confiscated in Tennessee, and to be put in prison without any hope of a speedy trial, because I’m a member of a forbidden branch of Protestantism?

      3. And the modern question is, do we take a Textual and Originalist view of the document and quit complaining about Maryland and New Jersey’s flagrant restrictions on our gun rights (this being pedantically consistent), or do we lift the sledgehammer of the ubiquitous 14th Amendment and demand National Reciprocity?

      1. avatar Sam I Am says:

        Please read some history of the construction of the U.S. Constitution, starting with “The Federalist Papers”. Then have a look at the history of the ratification process. But first, look at amendments nine and ten. Those amendments were intended to make clear that the national constitution did not usurp the existing sovereignty, or powers, of the individual states except as specifically written in the national compact.

        Amendments nine and ten are so important because without them, the anti-federalists refused to agree to the publication and ratification of the national constitution…because they knew the central government would try to use the national contract to coerce the states into being vassals.

        In understanding the promulgation of the national constitution, one must abandon the modern mindset and enter the mental construct of the founders, in their own era. Having won independence from one central government, they were not about to create another government capable of ruling the states; the states were to rule the central government through elected representatives.

        1. avatar BD says:

          Mr Sam,
          So, in summary, prior to the 14th amendment, from what I’ve read in the Federalist papers and in the ninth and tenth amendments,

          1. You can just scratch what is written in the first amendment where it is addressed to “Congress” and change it to all the Federal government because of the Federalist papers.

          Hence prior to the 14th amendment States could establish religion, hence Utah the Mormon state and Maryland the Catholic state and Pennsylvania the Quaker state. And these states could have made other religions illegal and abolished the press and confiscated the guns.

          2. The guns I bought in North Carolina on my way to the prairie in could be ‘discovered’ with a bogus search in Tennessee, then confiscated in Tennessee using Tennessee State laws, and to be put in prison without any hope of a speedy trial, because I’m a member of a forbidden branch of Protestantism because Tennessee is sovereign.

          3. unclear what path you take on this one.

        2. avatar Sam I Am says:

          In item one, you have the essence of The Federalist Papers and other writings of the founders. They wer not setting up a government to impose universal standards among and onto the states.

          Item two is why there is a commerce clause in the constitution. That is, free passage for goods between the states – no state established tariffs, no arcane rules designed to harm commerce between the states. Item two also points out that in the first days, yes, one could run afoul of certain laws in another state, for actions that were permitted in your state. Hence, some states permitted slavery, and others did not. Today we see state differences acted out in extradition petitions. Generally, the perp does something that is likely illegal in both states, but still a request to from one state to have another state expend resources returning a suspect to resident jurisdiction. However, even the 14th Amendment did not require states to have standard laws. This means grand theft might be charged for $20 dollar crime in one state, but only at $1000 in another.

          As noted in other commentary, the relations between the states, and between the states and the federal government are almost incomprehensible today. That is why it requires effort to shed notions about what should/should not be today, and immerse in the culture of the founding, in order to really grasp what was intended.

          In short, states were sovereign unto themselves, except what power they jealously granted to their employee – the federal government. The federal government was a mere agent of the states to carry out activities individual states could not accomplish for themselves. The constitution was an injunction on the federal government as to what actions of the central government were permitted BY THE STATES. Not the other way around. The constitution did not establish the states, nor did it make the states mere political subdivisions of the central government.

          It pays to read about the states operating under The Articles of Confederation. Even that agreement was suspect among the states, as ceding too much power to very weak central government. If you can wrap your mind around the conditions leading to the Confederation, you can better appreciate the contention about the stronger central government allowed/permitted (i use these words intentionally) under the Constitution.

          The history of the constitution offered free online by Hillsdale College is very good.

        3. avatar Danny338 says:

          So the ninth and tenth amendment mean what they say as written but the others don’t.

          Regardless of the anti-federalists concerns of the Constitution it was still ratified. Because of their concerns some States included with their ratification i call for (in some cases specific) amendments.

        4. avatar Sam I Am says:

          “So the ninth and tenth amendment mean what they say as written but the others don’t.”

          Not implying this statement. All the first ten amendments mean what they “say”.

          The Second Amendment (as with the entire Constitution) is putting the federal government on notice that the federal government is not granted the power to control the armaments of the militia. It was a roadblock to the central committee declaring that individuals cannot own arms, so as to neuter the ability of states to resist the power of government expressed through the standing army, or any other law force.

          The Ninth and Tenth Amendments were considered superfluous by the Federalists because the intent and purpose of the Constitution was to tell the national government which powers that entity possessed – by grace of the sovereign states. Thus, it was unnecessary to make a separate declaration that the central government only has the powers delegated in the body of the Constitution. The Anti-Federalists would not accept the proposition that the national government would not immediately begin to argue that if every limit on federal power was not listed in the text of the Constitution, the federal government was free to act in areas not specifically and individually prohibited.

          All in all, the entire Constitution is the instruction handbook for the hired help of the states – the federal government. The states retained their powers to govern themselves individually as they saw fit (except for powers specifically allowed to the federal government). In order to grasp the founding concepts, one must stop thinking of the Constitution as it became after the first ten amendments. If you had been a government official after the ratification, and told the founders that the entirety of the constitution immediately applied to, and controlled the states, you would have been flogged.

          Because Americans are conditioned to believe the central government is all powerful, and state power derives from the federal, we have great difficulty with the original concepts of American government prior to the 13th and 14th Amendments. It is difficult to overlook the history of politics since 1868 (14th Amendment), and keep focus on the era of the founding. If you don’t try to backfit modern notions of government onto/into the political environment of 1789, you can begin to approach the founding with a new perspective.

          To wrap, in the beginning, the words of the Constitution meant what they said (our understanding of the language of the era is poor). The States were determined that the central government dogs always knew who the master was. And that the master would effect discipline when and where required. We are a galaxy away from those days.

      2. I agree! Its all BullShit! For years, every American has been placed in giant political dryer, and spun around in NWO spin-doctor machine! Brainwashed on a Nationwide level about the Bill of Rights…! If all this nonsense were true…We would have never made it out of the American Revolutionary War…Every amendment is based on Judeo-Chirstian/Natural Law, every right is a god give right!

    2. avatar Sam I Am says:

      Prior to the 14th amendment, which words would imply (other than powers delegated by the states – meaning states are superior to the national government) the states intended the national constitution to be applicable to, and enforced on the states?

      If the national constitution was designed to regulate the states under the same provisions that regulated the national government, the state constitutions would have either been moot, or required to be changed so as to incorporate the entire national constitution.

      To think the original constitution applied instantly to the states, in all respects, is to ignore the entire history of the constitutional convention, and the history of the ratification.

  17. avatar Gman says:

    I don’t like the term “clause”. It implies, though perhaps not grammatically, that what follows is predicated upon the prefatory statement. It does not. What it does is provide “A” reason the founders found the right to keep and bear arms important enough to enumerate. But it is not the only reason. However, the prefatory statement does qualify what types of arms are of particular import to protect. Those necessary and usefull in the militia. Though the decision in Miller v. US (1939) was flawed in that SCOTUS determined that short barrel shotguns were not usefull to the military and therefor were not protected, they specifically cited the prefatory statement for the just and Constitutional protection of arms usefull to the military and ergo the militia and ergo the People. The modern progressive cry “Weapons of war have no business in civilian hands” is directly challenged by the Miller decision. It is also quite ironic that decision actually negates the restrictions upon fully automatic arms. It is strange we have never opted to point that out and end the silliness.

    1. avatar Sam I Am says:

      “It is strange we have never opted to point that out and end the silliness.”

      Because it is too late in the day. Once the SC determined it alone had the power to determine which weapons are necessary and useful to the militia. That power to decide has never been revoked/overturned. The constitution nowhere provides for the federal courts to make any foray into the decisions of the states regarding arming of the militia. The SC has had ample prior opportunity to declare that deciding the utility of weapons for the militia, especially since Congress refuses to arm and equip the militia, is not within the jurisdiction of the judiciary. Courts making the determination of which weapons are necessary and useful is a blatant declaration that the central government has the power to restrict the weapons to be employed in keeping the central government in check. The founders would tolerate no such usurpation.

  18. avatar Narcoossee says:

    Bruce Krafft wrote a great piece here on TTAG: “The Second Amendment: What it Says and What it Means” Nov 18, 2012

  19. avatar Chris T in KY says:

    It would help If there were examples of unorganized militias being used though out US history. Any books or Links? Mr. Jeff Hummels Pdf is full of information. Its a good start.

    I think the local police force is now more a problem than a standing army. Large american cities have a police force the size of a small countries army. The nation needs an armed defensive force. If we as a society had regular military drills at the local level, it could work. But I don’t see the three L’s, Libertarians Liberals and the Left supporting it. Everyone admits the current military is full of “Christians” who want to serve. The three L’s are not military material. Following stupid orders is not what they would do. But its is an order nun the less. Its what happens in training and combat.

    A civilian force could take on a police of even military unit, if they had the same weapons. But TTAG people can’t even support the Bump stock, a less expensive rapid fire gun. The word is ARMS not guns in the second amendment. When I see people on TTAG and elsewhere start to support private ownership of rocket launchers, then maybe we can get a discussion going. Remember its not about hunting.

    These were unorganized militias:
    The Bundy Ranch
    Deacons For Defense and Justice
    Athens Tennessee Revolt
    Coal miners revolt, 1900 to 1925 or 26.
    But nobody wants to include them and study them. Organized civilians with weapons make socialist progressives nervous. You can’t even get so called “2A people” to support open carry. Can’t we “bear” arms???

    The 2A is not about hunting. Its about mounting cannon on your own boat. We have a pirate problem. And american registered ships can’t carry weapons. The Second amendment says we can.

    The socialist progressive is a real problem. But “gun people” really need to learn history. We are only hurting ourselves and we aren’t helping future generations to learn about their right to ARMS, which have nothing to do with hunting.

    ps. If you study the reason why the NRA was founded, you will learn that the federal troops were terrible shots. Civilians beat them every time in contests.

    1. avatar Toni says:

      I am one who supports ALL ARMS in the hand of civilians and i am not even american 🙁

    2. avatar Toni says:

      Agree completely. It is not just even about mounting a cannon on your boat either but right up to and including the latest tech being a rail gun or when it becomes feasible lazers. There should be no limits in that regard. Any limits are only a limit on liberty and a pro for those who seek power and control

  20. avatar Chuck Cochran says:

    I disagree with the author’s conclusions about the “prefatory clause.” The 2nd Amendment consists of 2 separate, distinct and independent clauses, separated by a comma rather than a semi-colon, as was typical of the grammar usage of the time (still correctly used due to length of each clause). Any confusion over the 2nd Amendment’ clauses and the Framers’ intent, is easily dispelled by reading Madison’ original proposed Amendment(s). In reading Madison’ proposed, there were three separate clauses, the two we’re most familiar with and a third that prevented anyone from being forced to use a gun in contradiction of their religious beliefs. The two separate clauses then gives the State a right to muster and form a militia through the first clause, but through the second clause prevents any Local, State and/or Federal governing body from infringing upon the individual right to keep and bear arms. In truth, any legislation passed since the ratification restricting firearm usage at any level has been an infringement upon the individual’s rights.

    1. avatar Sam I Am says:

      “Local, State and/or Federal governing body from infringing upon the individual right to keep and bear arms.”

      Not quite.

      The constitution is/was a constraint on the national government, except as certain powers were delegated; powers that restrained the individual states – each of which was a sovereign power unto itself (9th and 10th amendments). We must abandon all this modern (since 1868) concept of a national government that controlled that states. That somehow the jealous guardians of state power (the founders) were willing to subjugate the states to the federal government. There is no evidence whatever that the founders intended the entire constitution to apply as a blanket constraint on state power (“states’ rights”)

      The two parts you reference from the second amendment are important, and not to be ignored by POTG nor the anti-gun tribes. The people were considered “the militia”. The militia were considered necessary for sovereign states to defend themselves against each other, the central government, Indians, French, English, Spanish and internal insurrection (state internal). Thus, since the militia were essential, and since the militia were made up of “the people”, the central/national government was prohibited from disarming the people who constituted the militia.

      If “the militia” were ever formally disbanded (by the states themselves), the very reason for arming the militia would cease to exist. The interesting question would then be whether legitimate claims could be made that the purpose of the RTKBA (arming the people of the militia) becomes moot. That question could then turn on the new concept that the federal constitution was imposed, by constitutional amendment, on the states.

      The purpose of the second amendment was to protect the militia of the individual states. The base document of the constitution granted certain powers of control of state militias, and an amendment was needed to ensure that those powers were not extended to complete control via the mechanism of disarming the public.

      1. avatar Clark Kent says:

        WRONG! The purpose of the Second Amendment is to guarantee THE PEOPLE the right to keep and bear arms. You can’t have any sort of militia unless THE PEOPLE keep and bear arms. The Bill of Rights as a whole confirms God given inalienable rights of THE PEOPLE. Get over yourself.

        1. avatar Sam I Am says:

          Which is what I wrote.

  21. avatar Free Texas says:

    The Constitution proper (the articles), is where government received its enumerated powers, while the Bill of Rights (the first ten amendments) laid out the rights of the People over against government. 2A does not lay out a power of the government to form a militia, but reassured the People of their natural and civic duty to bear arms and form militias to themselves ensure (contrary to the idea of a standing army, which they rightly perceived to be a threat to our liberties) the security of the state.

    Just read Heller and MacDonald. And the next opinion on it from Justice Kavanaugh.

    1. avatar Frederick Armayor says:

      We are in agreement!

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