Draft:The Militia clause of the Second Amendment is unenforceable.
Short Retort[edit | edit source]
The Militia Clause is the only reason 2A exists. 2A is not about personal protection, nor about empowering citizens with weapons to intimidate or revolt from the government. 2A exists only for the purpose of creating State Militias, in order to protect the federal government from threats foreign and domestic, and in order to eliminate a federal army.
Claim Rationale[edit | edit source]
2A is about personal protection, and about empowering citizens to revolt against a corrupt government.
Retort Deep-Dive[edit | edit source]
Comments taken from an online debate. Most are labelled "Pro-Gun" and "Pro-Control", but many are missing labels. Not intended to be published here in this form: the arguments must be summarized in the claim/counterclaim sections of this page.
Pro-Control: we should enforce the 2A fully: all guns issued by government, for service to government only.
Pro-Gun: Where is that written?
Pro-Gun: In the part where John is not a great reader.
Pro-Control: Quote: "A well regulated Militia, being necessary to the security of a free State"
The intended purpose was the protection of the State: that means government. By the Militia: which at the time was understood to mean state-level armies who's allegiance and function was to be on-call, at the service of the government.
Pro-Gun: What about the second half of the clause tho?
Pro-Control: Quote: i'm not denying the 2nd half. I'm saying the purpose of the 2nd half was to serve the objectives of the 1st half.
Pro-Gun: Militia meant all able bodied citizens. It eliminates the need for evil and expensive standing militaries.
Pro-Gun: "A well regulated Militia, being necessary to the security of a free State"
That’s not written in the imperative. It is not executable law.
“The intended purpose was the protection of the State:”
AN intended purpose was the protection of the state. The PRIMARY intended purpose was protection of the people. For this you will need to read more than one sentence of late 18th century American political philosophy.
“By the Militia: which at the time was understood to mean state-level armies who's allegiance and function was to be on-call, at the service of the government.”
Actually it was understood to mean “the whole body of people, under arms”.
Yes, eliminating a standing army was part of the intention.
The Founding Fathers were devoted to the militia. Alexander Hamilton called a well-regulated militia “the most natural defense of a free country.” His critics agreed with the need for a citizens’ militia, writing that “a well regulated militia, composed of the Yeomanry of the country, have ever been considered as the bulwark of a free people.”
Their disagreement was over how best to ensure that the militia was maintained, as well as how to divide up the roles of the national government vs. state governments. But both sides were devoted to the idea that all citizens should be part-time soldiers, because both sides believed a standing army was an existential threat to the ideas of the revolution.
WASHINGTONPOST.COM Perspective | What the Second Amendment really meant to…
Pro-Gun: A modern translation of the text would say, "A well-equipped militia, being necessary to the security of a free state, the right of the citizens to bear military-grade weapons shall not be infringed."
This was literally written as a protection from government, specifically any future tyrannical government similar to the one the Founders were seceding from. 1
Pro-Gun: Never mind the fact private citizens were allowed to own canons. 1
Here is a typical Anti-federalist view, expressed by Richard Henry Lee (writing under the pseudonym "The Federal Farmer"):
"A militia when properly formed, are in fact the people themselves. The powers to form and arm the militia, to appoint their officers, and to command their services, are very important; nor ought they in a confederated republic to be lodged, solely, in any one member of the government. First, the constitution ought to guard against a [federal standing army], by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms"
Note the terms: "the militia shall always be kept well organized, armed, and disciplined"
-- that means the militias were military bodies, led and disciplined by military leaders, themselves authorized by the citizenry as leaders of the militias. Not just disconnected citizens with no formal military affiliation.
"powers to form and arm the militia" -- meaning, the author viewed militias not as self-organized or self-armed entities, but organized and armed by the Republic.
"men capable of bearing arms" -- meaning, the author recognized that not all men are capable of bearing arms.
Pro-Control: Quote: "AN intended purpose was the protection of the state."
That's the ONLY purpose mentioned in the Constitution.
Pro-Gun: “That's the ONLY purpose mentioned in the Constitution.”
So? No purpose is mentioned in any operative clause. No reasonable expectation that the Constitution should mention all relevant purposes exists. You’re arguing from silence, and that’s poor logic and a worthless argument.
Pro-Gun: A challenge from the other end of things occurs to me, John. Tell me which Founding Father you think would argue that the purpose of protecting the state was not itself for the safety and liberty of the individual in the first place.
Pro-Control: Quote: You mean, what they didn't say is equivalent to what they did say. What they left out is equally important as the words they enshrined into the Constitution. Correct?
Pro-Control: Quote: They didn't say "the security of a free individual". They said "State". You're arguing that what they didn't write is equal in importance to what they did write. I think you're the one arguing from silence. I'm arguing from what's actually written.
Pro-Gun: “Pro-Gun: You mean, what they didn't say is equivalent to what they did say. What they left out is equally important as the words they enshrined into the Constitution. Correct?”
No, but the words enshrined in the Constitution aren’t exclusive of their other words. You’re treating them as if they were. I’m simply showing through those other words that you are warping the meaning of the Constitutional words. And remember YET AGAIN, we are not discussing an operative clause. You literally cannot do the prefatory clause. There is no way. Enforcing the 2A means every free man, woman, or child can buy whatever military equipment they can afford.
Pro-Gun: “They didn't say ‘the security of a free individual’. They said ‘State’.”
“You're arguing that what they didn't write is equal in importance to what they did write.”
No, I’m arguing that what they did write puts the lie to your version of what they codified into law.
“I think you're the one arguing from silence.”
Well then you don’t understand the fallacy. Sorry. This is a matter of fact. You argued from silence. I did not.
“I'm arguing from what's actually written.”
No, you literally just argued from what’s not written. You brought up that it’s not written “security of a free individual” to argue that the right is not to secure individuals.
Nevermind that a state itself cannot be free—only individuals can—and thus a free state is really all about and contingent upon the individual.
Pro-Control: Quote: "individual" is your word. That you introduced.
"which Founding Father you think would argue that the purpose of protecting the state was not itself for the safety and liberty of the individual in the first place."
You're saying they meant "individual".
"a state itself cannot be free" So, you're saying the words as written are incorrect.
Pro-Gun: “You're right, i'm obsessed with what it actually says. Crazy! It doesn't say ‘buy’. It says ‘keep’. It was a common conception that militias would be armed by the state.”
Buying was part of keeping in 1792 parlance. If in the event a person could not buy his own arms, the state was expected to provide, but George Washington himself signed a law mandating each person buy a serviceable firearm. You do not know more about what the militia meant than George Washington.
Pro-Gun: “Pro-Gun: ‘individual’ is your word. That you introduced.”
To reference an idea the founding philosophy is shot through with like black veins in marble.
“You're saying they meant ‘individual’.”
No, I’m saying that your misreading of the 2A defeats the whole purpose of the free state.
"So, you're saying the words as written are incorrect.”
No, I’m saying you have the reading comprehension of a loaf of bread and the framers wrote grand philosophical and poetic thoughts in what now constitutes very archaic language.
Pro-Control: Quote: Ok, i see you fixed the missing word:
"the right of the citizens to bear military-grade weapons shall not be infringed."
Sure! And even keep them. To protect the free State (by the 2A).
I think, by the wording, you only get the "keep and bear arms" part if you accept the "well-regulated militia" part.
It's silent on personal protection. It's not a silence that implies support for personal protection. There's no evidence the Framers of 2A gave even considered personal protection.
Pro-Gun: You know what words are missing? Let me show you. “A well regulated militia being necessary to the security of a free state, the right of the people to keep [to the exclusion of buying] and bear arms [exclusively for that purpose] shall not be infringed”. Everything in brackets is both pure fantasy, and absolutely necessary for your interpretation.
I agree-- it's doesn't say "to the exclusion of buying". It doesn't talk about buying vs issued. Both were practiced at the time.
I agree-- it doesn't say "exclusively for that purpose". It doesn't talk about other purposes. It talks about only one purpose, militias, clearly indicating militia's were their motivation for this amendment.
I agree-- their motivation for 2A isn't something that can be enforced, as in prosecutions. But it is something that can be supported in how we treat guns today.
Your strategy is to legally disqualify the Militia clause, in order to exploit the keep-and-bear clause for reasons other than Militias.
I think if Militias were important enough to be the only purpose they mention, then we should heed that. A new law which, say, restricts weapons to military usage would not conflict with 2A.
I'm not saying that i'm advocating that. But we make a choice: Do we want to support the spirit of the Amendment? Or use semantic logic to disregard the spirit of the Amendment?