Comment on clarity of the 2A

First, no lawyer here.



My belief in Miller is that there is a connection. The reason to protect arms is so that the militia is self arming. Therefore, the rights protected by the second amendment are for military arms more than any other. An M16 would be Second Amendment protected more than an Anschutz .22.



Self defense could come in as an unenumerated right as under Amendment 9.



But like I said, no formal lawyering here.

The Journal of Law & Politics article "The Second Amendment and the Historiography of
the Bill of Rights" was published in 1987.

It seems as if serveral Supreme Court Justices agree with that conclusion, that the two clauses need not control each other.

Yep, and maybe they wanted the "protected weapons" to be defined as "militia weapons" -- the guns used by the infantry soldier.

The Second Amendment, like most of the Bill Of Rights, is a direct response to the grievances held against the King. King George III tried to disarm the colonies, so a provision was added to protect the colonies (now states) from being disarmed by the federal government. Reading beyond this purpose is pure speculation.

However, that doesn’t mean that the Second Amendment protects only a state’s right to defend itself. It doesn’t make sense to defend a right but then discard the principles upon which that right is built. We have a collective right to defend our homeland because we have an individual right to defend our homes...and ourselves. I believe this principle is embodied in the Second Amendment.

This may have been countered before but I understand the wording a bit different:

"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"

My take is that the the term "regulated" means "to adjust so as to ensure accuracy of operation" or "to put in good order".

Since the manual of arms for a musket is very detailed and methodical, a citizen would need a firearm to keep in good form.

there's two reasons people get confused by the second amendment. one is that we no longer have a militia, so nobody has any practical experience with what such a thing demands or what it might be good for; the other is that some people desperately don't want to admit that the thing means what it says.

the first clause of the amendment provides an explanation, or perhaps an excuse, for why the right was deemed important enough to enumerate. it's probably there for political purposes; either way, it's obsolete now, and presently serves only to confuse. really, i wish we could strike that part (and only that part).

the second clause explains the right, and it's one some people revile. admitting that it is what it is, is too much for them, so they wish instead to make the plain language seem confusing. simple as that.

In The Founders' View of the Right to Bear Arms, which was just published in December, I trace back the two clauses of the Second Amendment to their original AMERICAN authors and uses. (I emphasize American to indicate that the constant mention by gun control advocates of Scotland and the English Bill of Rights are all diversionary and unhelpful for understanding American bills of rights) The original two clause version of the Second Amendment had two equal declaratory clauses. These were taken from Mason Triads that appear in EVERY one of the state bill of rights then extant (there were 8 total). Half had the well regulated militia language as the lead Mason Triad clause, the other half had the people's right to bear arms language as the leading clause.

Thus, the two clauses of the Second Amendment as proposed by Mason in his 1788 Bill of Rights are equal and duplicatory. I trace down why this is so, not only for the Second Amendment original, but also for freedom of the press in Mason's model Bill of Rights. Mason's Bill of Rights is what Madison promised to support in order to obtain ratification by Virginia. It was Madison who introduced the dependent nature of what is now the first clause of the 2nd. Also, note that Mason's Bill of Rights was the model for all four of the last ratifying conventions, every one of which defines the militia as the body of the people.

What both forms of the state bills of rights protected, obviously against state government violation, was an armed civilian population. They simply did it in different language. They were all understood as protecting a fundamental right. Mason, who first used well regulated militia language in an American Bill of Rights, indicated that his original 1776 WRM provision was intended as a limit on the state legislature. Mason also indicated that none of the provisions in the 1788 model Bill of Rights he wrote were amendments to either the judiciary or militia powers of the Constitution.

"Well regulated" in conjunction with militia meant an effective militia, and that is all it meant in or out of a bill of rights context. The militia were understood as all the able bodied men. These facts make the Second Amendment much more clear.

Anyone interested in the details of the Second Amendment's development and meaning would benefit from The Founders' View of the Right to Bear Arms. It was cited to the Supreme Court a total of seventeen times in these pro-Heller briefs: Alan Gura's respondent's brief, Gun Owners of America's amicus, the Pennsylvania Senate President Pro-Tem's amicus, and the Academics for the Second Amendment's amicus.

A lot is known about the historical details of the Second Amendment's history but very few individuals are aware of those details.

Forgot to mention that for those interested in information on my new book, The Founders' View of the Right to Bear Arms, go to this URL: http://www.secondamendmentinfo.com/

"there's two reasons people get confused by the second amendment. one is that we no longer have a militia"

I disagree. There is still a strong (but sadly receding) tradition of local and state funded militias, at least here in Michigan. I have been a militia member in three out of four locations I have lived in Michigan, and contrary to the pre-conceptions that people seem to have when I tell them about militias, most of the members are professionals or skilled labor, and ironically, in our weak one dimensional political spectrum, most would be described as liberal leaning. (When really, we would accurately be described as constitutionalists. I explain it to people with both my NRA and ACLU card in my wallet. Both are non-partisan groups, that both sides seem to see as bias to one side or the other.)

The rest of your post though-- I couldn't agree more.

Sorry, I meant "local and state, even state funded"

I always thought that "well-regluated" was akin to a "well-tempered" musical instrument, as in Bach's "well-tempered clavier" (1722) - that is to say "tuned" in a particular manner. A well-regulated militia is one that has been trained and drilled to be effective in combat.