And also the founders. Some of them loved the idea of a militia instead of a standing army. There was even an attempt at a militia navy. Which is insane. “Got my musket and rowboat. Off to defend the homeland!” rows towards French 90-gun ship.
The whole idea behind a militia was barely practical back then, and isn’t at all with industrialized warfare. If that’s the argument for the 2nd A, then it might as well be tossed on the same pile as the 3rd A of “anachronistic stuff that made sense to somebody at the time”.
Some of the founders. And they were referring to town and state militias, not one big unorganized one. The idea that “the people” comprise “the militia” in a one to one manner tracks to a World War 2 era Supreme Court decision.
If said people are a part of a well-regulated militia, sure. I don’t know of many who are…oh wait, I know of none because militias in the terms the founders would define don’t exist anymore. The closest thing is the National Guard.
But yeah, whatever the courts say is always right and never wrong. So militias are all people, corporations are people, and a collection of cells are people. But veterans coming home from war? Nope, get a job slackers. Can’t afford a home? Live on the streets, slackers. Oh homelessness is illegal now? Time for prison, slackers.
If said people are a part of a well-regulated militia, sure
This is the exact misconception I was talking about.
The militia consists of the “whole body of the people”. We know this from various contemporary writings, including descriptions in the Federalist Papers. We know how the term was used in the constitution, and we know it was used to refer to “We The People”.
In the constitution, it is always referred to as a singular entity. It is never referred to in the plural: there are no such thing as “militias”; there is only one “militia”.
You mentioned the National Guard. In constitutional terms, the National Guard would be a “[provision] for calling forth the militia” (Article I, Section 8, part 15). The members of the national guard haven’t been called forth to the militia. They have been called forth from the militia. This becomes obvious when we look at the other major provision for calling forth the militia: Selective Service. The Draft.
Congress’s authority to institute a draft, compelling “We The People” to report for military training and service against our individual will comes from their power to “call forth” the militia. We are members of the militia, and we are called forth. We are called forth from the militia, not to it. Congress would have no power to draft us if we were not members of the militia, and subject to their provisions established under the militia clauses. Which means that We The People are, in fact, the militia described in Article I and the Second Amendment.
If you don’t feel you and your fellow militiamen are adequately “well regulated”, you should petition Congress to impose more requirements than what they currently deem necessary and proper regulation of the militia, and I’ll see you at the next muster.
What you describe is an interpretation that the courts have laid out, nothing more. And the point I make is that the courts are many times wrong. And in this case, it is wrong. One aspect is that women were not called to (sorry) FROM militia. Yet women are afforded this right today, yes? So a single woman prior to the courts’ various opinions over the centuries would not have such a right, since they would not be a part of the militia – thus, the founders did not intend on it being every person. In fact, women were not even considered full citizens then since they did not possess the right to vote. Then there’s the subject of slaves which I have no interest in diving into since that’s an even bigger can of worms.
The point is that interpretations is what has won, not original intent. You can hand-wave this as a misconception all you want, but there is logic in it. And that logic is that the Constitution was designed to change over time solely because the founders could not envision the future state of existence, only lay the groundwork for such. Therefore as the second amendment is written, women at minimum should not have this right because, even today, they cannot be drafted – by your own statements: “the militia: Selective Service. The Draft.”
So a single woman prior to the courts’ various opinions over the centuries would not have such a right, since they would not be a part of the militia
What you are describing are the provisions Congress has made under their authority in Article I. They have created a legislative definition of “militia” (10 USC 246) that is restricted to male citizens. Female national guardsmen are the only women that fit within this legislative definition.
I think we can agree that Congress is fully empowered to change its legislative definition. We would probably agree that the current definition is unconstitutionally sexist and ageist. Congress could change their age limit from 45 to 60, and remove their “male” limitation. They could expand their definition to include a very, very broad range of people, if they wanted to. They probably couldn’t expand it to include 8-year-old kids or quadriplegics; the court would probably rule that sending kids and severely handicapped people to war is unconstitutional, but they can certainly include far more people in that legislative definition than they actually did.
Constitutional rights do not originate from legislature, and cannot be revoked by the legislature. Congress can, indeed, change the legislative definition of “militia”, but they cannot change the constitutional meaning except through an amendment.
So, if Congress could rewrite its definition and compel women to register for the draft tomorrow, then women were members of the “Well Regulated Militia” yesterday, and 200 years ago. Congress’s failure to provide for calling forth female members of the “well-regulated militia” has zero impact on the rights guaranteed by 2A.
In fact, women were not even considered full citizens then since they did not possess the right to vote.
Like most things, this was up to the individual states. Like anything up to the individual states, it was all over the place depending on exactly where you were. For example, at the founding women in New Jersey could vote, presuming they owned 50 British pounds worth of wealth because the wealth requirement was the only requirement New Jersey had for who could vote. Ironically, the spread of Jacksonian democracy (aka universal male suffrage) actually cost women in New Jersey the right to vote in the 19th century.
I meant federally protected right to vote, since that’s apples to apples comparison with the second amendment being a federal right. Thus, from a federal point of view, women were not full citizens in many various terms.
The Constitution didn’t establish a right to vote for men in general or any men in particular. It left the question of which citizens were allowed to vote fully up to the states.
Or to go deeper: The Declaration of Independence limited voting to landowners. The Constitution set no regulations whatsoever for which citizens could vote, leaving it wholly up to the states. There are various trends in state laws over time but nothing federal regarding who can vote (other than various immigration laws about who can be naturalized). Until the 15th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
Technically, men did not have a federally protected right to vote until women did, the 19th amendment. Though state laws had expanded to give essentially all free white men the vote in every state shortly before the Civil War, but that’s not from that federal point of view you’re so worried about.
Seems like you’re making my point for me despite my point being specifically about women’s citizenship and 2A supposedly applying to everyone (you know, “militia”) when it actually doesn’t.
Go back to Article I, Section 8, and perform that same substitution. Replacing “Militia” with “People” does not change the meaning of Article I in the slightest.
The term “militia” was used in the second amendment specifically to reference the militia clauses in Article I. If Article I had referred to “Yeomanry” or “Snorglubben”, the Second Amendment would have used those terms instead.
To provide for organizing, arming, and disciplining, the Militia People, 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 People according to the discipline prescribed by Congress
Can’t say I agree with your conclusion there, that’s a pretty significant change of meaning. The Militia is explicitly described as something that is organized, armed, disciplined, and trained by Officers.
Does Congress not have the authority to organize you, arm you, govern you, employ you? Do the states not have the authority to appoint officers over you, or train you according to the discipline prescribed by Congress?
Can you not be called forth to enforce law, suppress insurrection, or repel invasion?
You certainly can make some distinctions between “person” and “militiaman”. A 4-year-old child is a person and not a militiaman. The courts would certainly rule against the idea that Congress can organize a Children’s Brigade under the militia clauses. They would rule on constitutional grounds against paraplegics, or the mentally disabled being drafted. But we aren’t talking about these exceptional cases. We are talking about the general case, and the general case is that it is your status as a person that makes you a member of the militia.
Indeed, I think that Congress should establish a requirement that every American be trained on safe handling procedures, as well as on the laws governing the use of force in self defense and defense of others. They have that authority under the Militia clauses; I think they should exercise it.
Squares and rectangles, you can’t generalize a subset as synonymous with its superset.
Congress should establish a requirement that every American be trained on safe handling procedures, as well as on the laws governing the use of force in self defense and defense of others.
You won’t hear any argument from me on this point, I do believe the states should organize and train adults with some degree of competency, although this was written when Militias were the primary national defense in lieu of the standing Army we now maintain.
But the rest of your interpretation reads more like you’re working backwards from the conclusion you want to prove.
Do the states not have the authority to appoint officers over you, or train you according to the discipline prescribed by Congress?
Can you not be called forth to enforce law, suppress insurrection, or repel invasion?
Broadly speaking, no I would not say that’s the case .
The founders did not make a habit of codifying lazy verbage, if they meant People in general they would have written People in general. They chose the words they did to convey specific and distinct meanings. Militia refers particularly to that portion of a community trained for “martial exercise”. If you’re not trained, I’d argue specifically trained by the state, you’re not part of the Militia. A candidate for it perhaps, but not a member until you’ve been trained by the state for the purpose.
You won’t hear any argument from me on this point, I do believe the states should organize and train adults with some degree of competency
As you used it in that statement, the term “adults” is synonymous with “well regulated militia” as used in the constitution, and “people” as I have used the term.
It is because we are militia/people/adults that we can be compelled to attend the training you describe, or be otherwise drafted into service.
Squares and rectangles, you can’t generalize a subset as synonymous with its superset.
This is true, there is not a complete overlap, but I accounted for the non-squares in my last comment. My point is not that militia contains absolutely all members of “we the people”. My point is made when “equilateral rectangles” are the general rule, and “non square” is an exceptional case.
When you see a random person on the street and have no special information about them, It is unreasonable to presume they are not a member of the militia.
No I heard what you said, I don’t agree with that interpretation. No training, no Militia. A raw egg isn’t an omelet . Again, you started with your conclusion and are interpreting the words to justify it.
Alright, how about this: fail to register with selective service, and young men cannot get or renew a driver’s license or financial aid for college. They can even be charged with a crime, all for failing to follow one of the very few regulations imposed upon the militia.
How can they be punished for not fulfilling their militia duty if they are not militia?
I started by asking “who is the militia?”, nothing more. The legislature told me who they thought was the militia (every able bodied male citizen aged 17 to 45) and I asked why women weren’t included. Then I realized the definition the legislature used was not the definition used in the Constitution, and I allowed it to expand to as broad a concept as Congress would have access to: everyone.
Your interpretation of “no training, no militia” is not unreasonable as a practical matter, but we are talking about constitutional law, constitutional rights. If there are any rights attached to the concept of “militia”, liberty demands we assume the broadest reasonable interpretation; if there are any infringements attached to the militia, the narrowest definition possible.
“Well regulated militia” is not the “gotcha” that hoplophobes think it is.
Too many people don’t understand that “militia” and “people” are synonymous as used in 2A.
According to the court 175 years later.
And also the founders. Some of them loved the idea of a militia instead of a standing army. There was even an attempt at a militia navy. Which is insane. “Got my musket and rowboat. Off to defend the homeland!” rows towards French 90-gun ship.
The whole idea behind a militia was barely practical back then, and isn’t at all with industrialized warfare. If that’s the argument for the 2nd A, then it might as well be tossed on the same pile as the 3rd A of “anachronistic stuff that made sense to somebody at the time”.
Some of the founders. And they were referring to town and state militias, not one big unorganized one. The idea that “the people” comprise “the militia” in a one to one manner tracks to a World War 2 era Supreme Court decision.
If said people are a part of a well-regulated militia, sure. I don’t know of many who are…oh wait, I know of none because militias in the terms the founders would define don’t exist anymore. The closest thing is the National Guard.
But yeah, whatever the courts say is always right and never wrong. So militias are all people, corporations are people, and a collection of cells are people. But veterans coming home from war? Nope, get a job slackers. Can’t afford a home? Live on the streets, slackers. Oh homelessness is illegal now? Time for prison, slackers.
This is the exact misconception I was talking about.
The militia consists of the “whole body of the people”. We know this from various contemporary writings, including descriptions in the Federalist Papers. We know how the term was used in the constitution, and we know it was used to refer to “We The People”.
In the constitution, it is always referred to as a singular entity. It is never referred to in the plural: there are no such thing as “militias”; there is only one “militia”.
You mentioned the National Guard. In constitutional terms, the National Guard would be a “[provision] for calling forth the militia” (Article I, Section 8, part 15). The members of the national guard haven’t been called forth to the militia. They have been called forth from the militia. This becomes obvious when we look at the other major provision for calling forth the militia: Selective Service. The Draft.
Congress’s authority to institute a draft, compelling “We The People” to report for military training and service against our individual will comes from their power to “call forth” the militia. We are members of the militia, and we are called forth. We are called forth from the militia, not to it. Congress would have no power to draft us if we were not members of the militia, and subject to their provisions established under the militia clauses. Which means that We The People are, in fact, the militia described in Article I and the Second Amendment.
If you don’t feel you and your fellow militiamen are adequately “well regulated”, you should petition Congress to impose more requirements than what they currently deem necessary and proper regulation of the militia, and I’ll see you at the next muster.
What you describe is an interpretation that the courts have laid out, nothing more. And the point I make is that the courts are many times wrong. And in this case, it is wrong. One aspect is that women were not called
to(sorry) FROM militia. Yet women are afforded this right today, yes? So a single woman prior to the courts’ various opinions over the centuries would not have such a right, since they would not be a part of the militia – thus, the founders did not intend on it being every person. In fact, women were not even considered full citizens then since they did not possess the right to vote. Then there’s the subject of slaves which I have no interest in diving into since that’s an even bigger can of worms.The point is that interpretations is what has won, not original intent. You can hand-wave this as a misconception all you want, but there is logic in it. And that logic is that the Constitution was designed to change over time solely because the founders could not envision the future state of existence, only lay the groundwork for such. Therefore as the second amendment is written, women at minimum should not have this right because, even today, they cannot be drafted – by your own statements: “the militia: Selective Service. The Draft.”
You raise a very, very good point.
What you are describing are the provisions Congress has made under their authority in Article I. They have created a legislative definition of “militia” (10 USC 246) that is restricted to male citizens. Female national guardsmen are the only women that fit within this legislative definition.
I think we can agree that Congress is fully empowered to change its legislative definition. We would probably agree that the current definition is unconstitutionally sexist and ageist. Congress could change their age limit from 45 to 60, and remove their “male” limitation. They could expand their definition to include a very, very broad range of people, if they wanted to. They probably couldn’t expand it to include 8-year-old kids or quadriplegics; the court would probably rule that sending kids and severely handicapped people to war is unconstitutional, but they can certainly include far more people in that legislative definition than they actually did.
Constitutional rights do not originate from legislature, and cannot be revoked by the legislature. Congress can, indeed, change the legislative definition of “militia”, but they cannot change the constitutional meaning except through an amendment.
So, if Congress could rewrite its definition and compel women to register for the draft tomorrow, then women were members of the “Well Regulated Militia” yesterday, and 200 years ago. Congress’s failure to provide for calling forth female members of the “well-regulated militia” has zero impact on the rights guaranteed by 2A.
Like most things, this was up to the individual states. Like anything up to the individual states, it was all over the place depending on exactly where you were. For example, at the founding women in New Jersey could vote, presuming they owned 50 British pounds worth of wealth because the wealth requirement was the only requirement New Jersey had for who could vote. Ironically, the spread of Jacksonian democracy (aka universal male suffrage) actually cost women in New Jersey the right to vote in the 19th century.
I meant federally protected right to vote, since that’s apples to apples comparison with the second amendment being a federal right. Thus, from a federal point of view, women were not full citizens in many various terms.
The Constitution didn’t establish a right to vote for men in general or any men in particular. It left the question of which citizens were allowed to vote fully up to the states.
Or to go deeper: The Declaration of Independence limited voting to landowners. The Constitution set no regulations whatsoever for which citizens could vote, leaving it wholly up to the states. There are various trends in state laws over time but nothing federal regarding who can vote (other than various immigration laws about who can be naturalized). Until the 15th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
Technically, men did not have a federally protected right to vote until women did, the 19th amendment. Though state laws had expanded to give essentially all free white men the vote in every state shortly before the Civil War, but that’s not from that federal point of view you’re so worried about.
Seems like you’re making my point for me despite my point being specifically about women’s citizenship and 2A supposedly applying to everyone (you know, “militia”) when it actually doesn’t.
Thanks!
Then why does the amendment refer to a Well Regulated Militia? If “People” were synonymous, the amendment doesn’t make sense. “Well regulated people”?
Go back to Article I, Section 8, and perform that same substitution. Replacing “Militia” with “People” does not change the meaning of Article I in the slightest.
The term “militia” was used in the second amendment specifically to reference the militia clauses in Article I. If Article I had referred to “Yeomanry” or “Snorglubben”, the Second Amendment would have used those terms instead.
Can’t say I agree with your conclusion there, that’s a pretty significant change of meaning. The Militia is explicitly described as something that is organized, armed, disciplined, and trained by Officers.
Are you not a person?
Does Congress not have the authority to organize you, arm you, govern you, employ you? Do the states not have the authority to appoint officers over you, or train you according to the discipline prescribed by Congress?
Can you not be called forth to enforce law, suppress insurrection, or repel invasion?
You certainly can make some distinctions between “person” and “militiaman”. A 4-year-old child is a person and not a militiaman. The courts would certainly rule against the idea that Congress can organize a Children’s Brigade under the militia clauses. They would rule on constitutional grounds against paraplegics, or the mentally disabled being drafted. But we aren’t talking about these exceptional cases. We are talking about the general case, and the general case is that it is your status as a person that makes you a member of the militia.
Indeed, I think that Congress should establish a requirement that every American be trained on safe handling procedures, as well as on the laws governing the use of force in self defense and defense of others. They have that authority under the Militia clauses; I think they should exercise it.
Squares and rectangles, you can’t generalize a subset as synonymous with its superset.
You won’t hear any argument from me on this point, I do believe the states should organize and train adults with some degree of competency, although this was written when Militias were the primary national defense in lieu of the standing Army we now maintain.
But the rest of your interpretation reads more like you’re working backwards from the conclusion you want to prove.
Broadly speaking, no I would not say that’s the case .
The founders did not make a habit of codifying lazy verbage, if they meant People in general they would have written People in general. They chose the words they did to convey specific and distinct meanings. Militia refers particularly to that portion of a community trained for “martial exercise”. If you’re not trained, I’d argue specifically trained by the state, you’re not part of the Militia. A candidate for it perhaps, but not a member until you’ve been trained by the state for the purpose.
As you used it in that statement, the term “adults” is synonymous with “well regulated militia” as used in the constitution, and “people” as I have used the term.
It is because we are militia/people/adults that we can be compelled to attend the training you describe, or be otherwise drafted into service.
This is true, there is not a complete overlap, but I accounted for the non-squares in my last comment. My point is not that militia contains absolutely all members of “we the people”. My point is made when “equilateral rectangles” are the general rule, and “non square” is an exceptional case.
When you see a random person on the street and have no special information about them, It is unreasonable to presume they are not a member of the militia.
No I heard what you said, I don’t agree with that interpretation. No training, no Militia. A raw egg isn’t an omelet . Again, you started with your conclusion and are interpreting the words to justify it.
Alright, how about this: fail to register with selective service, and young men cannot get or renew a driver’s license or financial aid for college. They can even be charged with a crime, all for failing to follow one of the very few regulations imposed upon the militia.
How can they be punished for not fulfilling their militia duty if they are not militia?
I started by asking “who is the militia?”, nothing more. The legislature told me who they thought was the militia (every able bodied male citizen aged 17 to 45) and I asked why women weren’t included. Then I realized the definition the legislature used was not the definition used in the Constitution, and I allowed it to expand to as broad a concept as Congress would have access to: everyone.
Your interpretation of “no training, no militia” is not unreasonable as a practical matter, but we are talking about constitutional law, constitutional rights. If there are any rights attached to the concept of “militia”, liberty demands we assume the broadest reasonable interpretation; if there are any infringements attached to the militia, the narrowest definition possible.
“Well regulated militia” is not the “gotcha” that hoplophobes think it is.