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Protesters gather at the Bureau of Land Management's base camp, where cattle that were seized from rancher Cliven Bundy are being held, near Bunkerville, Nevada April 12, 2014. The U.S. Bureau of Land Management on Saturday said it had called off an effor
This Supreme Court has repeatedly ignored the opening phrase in the Second Amendment.

The amendment, in full, reads:

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 amendment does not say:
The right of the people to keep and bear arms shall not be infringed.
Yet this Supreme Court seems hellbent on reading the amendment as if the opening clause wasn't there.  In case after case, the Supreme Court has ruled that individual states and the federal government have only limited powers over people's guns.

As a direct consequence, at this time  hundreds of armed and unregulated 'militiamen - most not from Nevada - are now terrorizing the town of Bunkerville, Nevada.  They claim to be acting in the 'defense' of a deadbeat.  The deadbeat claims not to 'recognize' the Federal Government that created the state of Nevada by purchasing the land from Mexico after funding an offensive war against Mexico. (Never mind his idiotic racism, since the militias remain unfazed and obviously sympathetic to Bundy's rhetoric).

As Senator Reid noted, these people terrorizing Bunkerville are acting in armed rebellion.  No state militia has been called out in defense of Cliven Bundy.  These people are not "well-regulated".  But they are certainly well-armed, thanks to the Supreme Court.

In 1876 a prior Supreme Court ruled "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" (U.S. vs Cruikshank)

Yet in decision after decision, the Supreme Court has reversed that logical interpretation.  In 2010 (District of Columbia vs Heller) the Supreme Court almost completely reversed the 1876 interpretation:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Both versions written above clearly prohibit the Federal Government from directly regulating "arms" that might be used by people acting as a state's militia.  In other words, each state is clearly permitted (but not required) to have a militia; and members of those militias are clearly subject to the states regulations.

But nowhere does the actual amendment provide an absolute right to own these weapons.  That's precisely what the Court wrote in 1876.  Since the amendment includes the modifying clause, the right is not absolute.

Logically the amendment should not be read as universally extending gun 'keeping' to people who not acting in a well regulated militia.  States have the right to create militias and arm them as they choose - and to choose where to store the arms, whether in their own arsenals or at home with the militia; and states have the right to regulate or even ban weapons held outside of the militia where public safety concerns over-ride concern with some amorphous liberty.

Loosing every person who wants to wander around with guns is anarchy, not government.  In the old days, Supreme Court Justices would 'ride the circuit' and hear appeals. (The caseload was smaller).  Perhaps this Supreme Court (or at least those who voted in the majority on the Heller decision) could be flown to Nevada and ask for the terrorists to help them parse the meaning of "well-regulated milita".

Originally posted to rexxnyc on Fri Apr 25, 2014 at 05:42 PM PDT.

Also republished by Repeal or Amend the Second Amendment (RASA) and Shut Down the NRA.

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Comment Preferences

  •  Your diary makes no sense. (3+ / 0-)
    Recommended by:
    Neo Control, VClib, Justanothernyer

    Only individuals have constitutional rights so how could the 2nd Amendment apply to the militia??  The militia isn't a person.

  •  Umm....Scalia himself has said that the (2+ / 0-)

    Second Amendment is not absolute and that regulation is needed.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Fri Apr 25, 2014 at 06:10:05 PM PDT

  •  This is why (8+ / 0-)

    The second amendment needs to be repealed. Its intention to protect the sovereignty of States has been perverted by right wing extremists.  

  •  It's Bunkerville NV (1+ / 0-)
    Recommended by:
    Sharon Wraight

    Bundyville is in the Arizona Strip, about 50 miles to the east.

    A learning experience is one of those things that says, 'You know that thing you just did? Don't do that.' Douglas Adams

    by dougymi on Fri Apr 25, 2014 at 06:25:23 PM PDT

  •  Well done (5+ / 0-)

    It makes perfect sense when the entire sentence is taken in context.

    We have it within our power to make the world over again ~ Thomas Paine

    by occupystephanie on Fri Apr 25, 2014 at 06:31:28 PM PDT

  •  It's a well settled principle of (1+ / 0-)
    Recommended by:

    constitutional/statutory interpretation that some words are there just to make things look pretty and don't really have any meaning attached to them.

  •  Here's what the Court actually said. (7+ / 0-)

    Justice Scalia:

    2. Prefatory Clause.

        The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .”

        a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”).

        Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment , we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise … Armies”; “to provide … a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

        Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”)....

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

        Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) , petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment ’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.

    •  Yep, a wrongly decided case (4+ / 0-)

      That clearly demonstrates the right wing extremism that has perverted the second amendment.

      •  Stevens' & Bryer's dissents (signed by other 3) (4+ / 0-)

        and here:

        Worth reading. Both dissents to Heller were signed by all four liberal SCOTUS justices.

        Stevens, for example, wrote:

        Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. [...] Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. ... The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons... I could not possibly conclude that the Framers made such a choice.
        Thank you for the diary, rexxnyc!
  •  But how am I supposed to compensate (4+ / 0-)

    for my small penis and carry out my Red Dawn fantasies?!!!

  •  I think you meant "unorganized". (0+ / 0-)

    The group is the "unorganized militia", not the "unregulated militia".

    Population of the USA
    subtract those under 18
    subtract those over 45
    subtract women not in the national guard
    equals the entirety of the population demographic "Militia"

    Meaning, last I was aware, the "Militia" was every male between 18 and 45 plus women who are national guard.

    That's a LOT of people. Maybe 55 million men. Dunno how many women, but the whole guard isn't all that large at all when compared to that big group of guys, not even larger than a rounding error.

    So, you have "Militia".
    Break that down into "Organized" and "Unorganized"

    "Organized" is the total number of people in the Guard of each state. Note that the texas national guard is not the same as the federal national guard, for example. "Organized" is basically the state groups. Not the federal groups.

    "Unorganized" is everybody who isn't "Organized".

    So start with roughly 55 million people. Being WAY generous maybe you can get a pile of 5 million people who belong to the various state-recognized/run organizations that would qualify as "Organized". Leaving about 50 million people.

    There's your unorganized militia - roughly 1 of every six people in the country. To make the argument that congress must provide each with arms would require about 75 Billion just for one inexpensive pistol and one inexpensive rifle. That's why the people were intended to come with their own stuff. The first militia act, signed by George Washington, set out that each person was to get for himself his own gun and ammo and etc.

    •  Funny, the word "organized" is not the Constitutio (4+ / 0-)

      But, "a well regulated militia" is right there in the amendment.

        •  At Lexington and Concord (1+ / 0-)
          Recommended by:
          i understand

          it meant the people who shot at the redcoats

          they were organized locally and drilled some; they were authorized by the colonial government

          each of the 13 colonies would have had militia

          •  Oh... the British were trying to seize arsenals (2+ / 0-)
            Recommended by:
            i understand, nextstep

            maintained by the colony of Massachusetts

            they weren't after people's squirrel rifles

            the whole purpose of the British expedition to Lexington and Concord was to seize the colony's arsenals

            •  They *were* squirrel rifles. (0+ / 0-)

              Back then each gun was custom-fitted by hand. You couldn't take a part from one and expect it to function in a different unit.

              If ONE piece broke, they had to send the whole thing off to a gunsmith for a replacement part to be crafted by hand, or scrap the gun and buy a whole new one.

              Guns were important, and life back then was not the libertarian self-made man fantasy of sturdy colonialism that has been presented. People understood that their survival depended on the reliability of their fellow humans, they understood "team" beyond the superficial sports-leagues of today, it existed for them at the visceral life/death level. And so if farmer john bought a gun, he wasn't stingy with possession. If he was off in his fields and his village came under attack, the survival of the village could depend on the people who were there at the time having enough arms at hand for defense of themselves and their village/state.

              Try on these sections of the PA Constitution...

              Passed in Convention the 28th day of September, 1776, and signed by their order.
               BENJ. FRANKLIN, Prest.
              I. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
              VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.
              That bold bit is the type of clause that was originally included in the federal second amendment but was stripped out because of concern that some future administration could declare whole swaths of people as religious and thus exempt from a right to have arms at all - a sort of thing a king would do, which they had intimately experienced.
              XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
              When you take away armies and declare the people as the source of their own protection (rather than some king as the provider of guards of the peace), the result is the population being armed as part of a team that have to chip in their share. As part 8 declared "bound to contribute his proportion towards the expense of that protection".

              Back to hypothetical farmer john of lexington... Farmer john's contribution could very well be buying a rifle and making it available to anyone who may have need of it through storing it in a common location, in case of event of attacking mercenaries or a band of brigands or enemy soldiers etc.

              And if he needed it to go hunting deer or turkey or such, he could send his kid off to the common armory to retrieve the gun he owns. A gun, in fact, that was every bit equally powerful as what some enemy soldier was carrying. He owned military grade assault weapons.

        •  So you agree with me? (1+ / 0-)
          Recommended by:
          i saw an old tree today

          If so, we can move on to your question.

    •  They aren't regulated at all (4+ / 0-)

      Clearly, the Clive Bundy militia is not regulated at all.

      Republicans: Taking the country back ... to the 19th century

      by yet another liberal on Fri Apr 25, 2014 at 08:30:28 PM PDT

      [ Parent ]

    •  Its up to each state how to arm the unorganized (0+ / 0-)

      militia; and how to regulate its members

      and its up to each state how to define "unorganized militia" though I think they generally do so in a way you describe

      but theoretically each state could require all members of the unorganized militia to own a weapon and keep it at home in a safe; each state could provide a weapon to unorganized militia;

      But why the hell would they? Canada? Russia?  Ohio isn't part of the crimea.  Legislators would never approve such measures unless there were some growing threat.

      the national guard is the organized militia; states and the federal government long ago worked out how to share organizing those

      •  Nope. Not quite. Nope. (0+ / 0-)
        the national guard is the organized militia; states and the federal government long ago worked out how to share organizing those
        This is not organized simply, and the same terms are used for different groups which makes it a pain in the ass to keep it from getting confused.

        But it doesn't end there. The militia is NOT military. The militia was separate from a standing army. There would be an army raised by congress, per the constitution and alongside that there would be a militia that was called up from the population of a state to act in defense of themselves and their state.

        Each state has an army and air national guard, which normally answers to the governor, until federalized which changes their state-organization into a federal-organization.

        Furthermore, some states have MORE than just their state guard (which can be federalized). They have State Defense Forces which are not able to be federalized or ordered by the federal military. No, these aren't just republican states, there is the:
        California State Military Reserve
        Maryland Defense Force
        Massachusetts State Defense Force
        Michigan Volunteer Defense Force
        New York Guard
        Ohio Military Reserve
        Ohio NAVAL Militia
        Vermont State Guard

        Not to mention there is the
        Puerto Rico State Guard

        Not exactly a list of the states that have threatened secession, eh? ;)

        Back to Ohio. Read a bit about naval militias, just to get the flavor of the landscape going on here.

        It really is as I said----

        Militia = 55-ish million people
        --Organized segment, maybe 5 million?
        -----State Only forces
        --------State Defense Forces
        -----State and Federal / Able to be Federalized
        --------State Army National Guard
        --------State Air National Guard
        --------State Naval Militia
        --Unorganized Segment, everyone else, ?50? million

        And the fact that states have organized militia units that are outside of their NG units means you are wrong. Clearly you were not in possession of as many facts as you thought.

        •  The general principle is correct (0+ / 0-)

          That is -each state is responsible for 'regulating' it's militia(s).  

          Some national guard, some 'organized' militia, a lot of 'unorganized militia'. I was convoluting some national guard and some 'organized' militia.

          Each state 'regulates' organized and unorganized militia.  And many times in the 18th and 19th centuries USA went to war mostly with militia contingents.  Militia contributed were voluntary placed under Federal command.

          So the overall principle is: the states can and have for 200+ years regulate the militias as each state sees fit. The Federal Government cannot interfere in the militia.

          That's all the 2nd amendment says.

          It doesn't say anything about whether or not states can regulate hunting weapons or any other kind of weapon.

          That's how I read it.  Supreme Court majority now disagrees. Maybe I'll finish law school and apply for the job.

        •  Folks can call themselves whatever they want. (2+ / 0-)
          Recommended by:
          rexxnyc, LeighAnn

          A well related militia is what was deemed necessary for the security of a free State and the Federal Government can't disarm them.

          The current interpretation of the 2nd amendment is an extreme right wing perversion.

  •  the key part is ... (4+ / 0-)

    This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence  Meaning the right is not given to the people by the Constitution, it would exist even if the Constitution did not say anything about it.

    Just like the "right to privacy" exists with out the Constitution saying it does.

    Humans have rights because they are humans. Not because some paper listed a few of them.  The paper does not give them the rights, they had them before the paper existed.

    Stupid question hour starts now and ends in five minutes.

    by DrillSgtK on Fri Apr 25, 2014 at 10:13:04 PM PDT

  •  Right-wingers aren't big on reading (3+ / 0-)

    for content.

    They prefer to 'skim'.

  •  I'm in favour of gun control but agree with Heller (1+ / 0-)
    Recommended by:

    I believe the Roberts court got the interpretation of the 2nd Amendment correct.

    The Amendment is an anachronism in the modern age and ought to be repealed or replaced, but if you just reverse the order of the two clauses, the meaning (as interpreted by the Roberts court is clearer).

    "The right of the people to keep and bear arms shall not be infringed" [because] "A well regulated militia [is] necessary to the security of a free State"

    It's anachronistic because the arms that the members of state or national militia would have these days would not be their own, but would be weapons supplied to the state or national militia by the state or national government. The amendment was written at a time when all able-bodied (citizen) men (i.e. no slaves, immigrants, or native Americans) were expected to maintain a firearm in case it was needed for the defense of the state. There is no such requirement today. Police, national guard, state or federal law enforcement, armed forces members are supplied with all necessary weaponry by the state.

    Therefore, the 2nd Amendment has outlived its usefulness and ought to be repealed. Until it is, "the people" have a constitutional right to keep and bear arms.

    •  even in the 1700s the militia was not self armed (0+ / 0-)

      sorry to repeat -

      but at Lexington and Concord the British were trying to seize the colonial arsenals maintained for local militias. The British were not after individual hunting rifles.

      there were a few companies of self armed hunters, but they were pretty ineffective in pitched battles

      The whole revolution was fought by colonial militias, armed by each colony (sometimes with weapons given to the colony by France and Spain).

      The wars of 1812 and the Mexican American War and the Civil war (on both sides) were largely fought by militias brought under Federal command, with only a few directly Federal troops

    •  Again (0+ / 0-)

      If you can remove words from the Constitution and it would still mean the same thing to you your interpretation is probably wrong.

      •  to which words do you refer? (0+ / 0-)

        As far as the 2nd amendment, the current court majority agrees with your interpretation - i.e. that the phrase:

        "A well regulated militia being necessary to the security of a free state,"
        is superfluous, and can be ignored.

        But other members of this court and courts in the past have held that the phrase radically changes the meaning of the whole sentence; and that the sole purpose of the amendment is to give each state the freedom to form a militia free from federal interference.

        To me, and those dissenters the 2nd amendment says nothing about individual rights to own guns; that's just left to each state to regulate, without interference from the Federal government.

        The second amendment says nothing about my right to own a bicycle, either.  Or to have a backyard grill.

        All three of those are left to each state to regulate.

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