The Second Amendment to the Constitution?

Question

The second amendment states, in its entirety, “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.”

Who is the militia? At the time of writing the militia was those of military age, who were not criminal nor mentally enfeebled, and would provide their own weapons, for the purpose of training and defense.

Please note, not criminals, not convicted felons, not the mentally ill.

Today the definition of militia is spelled out clearly in US Code Title 10, Subtitle A, Part 1, Chapter 13, subsection 311, which states;

“(a) 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. 
(b) The classes of the militia are— 
(1) the organized militia, which consists of the National Guard and the Naval Militia; and 
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. "

Since the national guard has been converted into part of the the standing army of the United States, the rights of the militia have devolved on to the portion that remains, namely, the unorganized militia.

We ordinary citizens are that unorganized militia.

You might be able to make a case that the congress of the US has the power to control the regulations regarding the arming of the militia, under article 1, section 8 of the constitution, which grants to congress the 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;”

However, since the second amendment was enacted after this provision, it would take precedence as a clarification of the limits of power to be exerted by the congress.

In short, the second amendment provides that the people, who are the unorganized militia, have a right to keep (read as own) and bear (read as carry) firearms, and those rights shall not be infringed by congress.

Given the above, and if you decide to challenge these presuppositions, please cite your evidence sustaining that challenge, case law if you will, not just asserting your opinions, the currently considered gun legislation could not be considered to be constitutional.

Why then haven't the proponents of such legislation proposed an amendment to change the constitution to remove the protections of the second amendment?  It seems to me that this would be the proper procedure to follow if you really want to disarm the american people.

Bill · Accepted Answer

Title 10 has nothing to do with the Second Amendment. That is part of the U.S. Code which pertains to the United States armed forces, and defines the militia that the federal government is permitted to raise in an emergency. The Second Amendment does not define militias at all, and a statute cannot modify the Constitution.

You simply can't use a definition in one law and apply it to another. Any attorney or law student will tell you the same thing. This is like saying the definition of "dwelling house' as used in the Nevada Criminal Code, must be the same as the definition of "dwelling house" as used in the Rhode Island Building Code. You can't do that. Title 10, Subtitle A, Part 1, Chapter 13, subsection 311 defines "militia" for the purposes of Title 10 and Title 10 only.

The Second Amendment was also NOT enacted after the Title 10. Congress could not pass laws until after the Constitution was enacted because that is the basis for all federal power. In fact that portion of title 10 was enacted in 1903.

Also being eligible for the "unorganized" militia, is not the same as actually being *in* a "well-regulated" militia.

If you want sources try reading literally any Supreme Court case addressing the Second Amendment. But here's one anyway.

strech · Answer

A bill is working it's way through South Carolina right now!

Senate Bill 247 is sponsored by state Senators Tom Corbin, Tom Davis, Kevin Bryant, and Lee Bright. Although only four senators currently sponsor the bill, sources inside the South Carolina House of Representatives report that a companion measure will soon be offered in that chamber, as well.

The Senate bill aims to protect the right of citizens of the Palmetto State to keep and bear arms by amending the definition and rights of the state’s “unorganized militia.”

According to Section 25-1-80 of the South Carolina Code, “an able-bodied citizen of this State who is over seventeen years of age and can legally purchase a firearm is deemed a member of the South Carolina Unorganized Militia, unless he is already a member of the National Guard or the organized militia not in National Guard service.”

The newly proposed bill exempts all members of the unorganized militia (essentially everybody over 17) from complying with federal firearms restrictions passed after January 1, 2013.

Per the bill, “A militia member, at his own expense, shall have the right to possess and keep all arms that could be legally acquired or possessed by a South Carolina citizen as of December 31, 2012. This includes shouldered rifles and shotguns, handguns, clips, magazines, and all components.”

Members of the state militia are specifically exempted from falling under the jurisdiction of “any law or regulation or jurisdiction of any person or entity outside of South Carolina.” That includes, it would seem, the United Nations, the federal government, and Barack Obama.

Anonymous · Answer

It used to be intended that the U.S. Would have only a small army and that state militias would complement the military in occasions of need. To make sure this thought would continue via time the 2d modification was written. Even at present in Iraq the countrywide guards troops are being used. Whilst the suggestion of grabbing your musket and running off to struggle with the militia is some what obsolete , the guardsmen of state-of-the-art army nonetheless do that once they are called. It is principal to notice though that the 2nd amendment doesn't provide everybody the correct to hold arms or allow any form of hands to be carried.

lost 1 · Answer

This is what the author of the 2nd amendment said. Who would know better then the one who wrote it??
"...to disarm the people ― that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)
"I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426)

Uncle Pennybags · Answer

Actually, all of that is irrelevant.

The RIGHT to keep and bear arms does not belong to the militia.  The Right belongs to the PEOPLE.

Even if the militia is now the National Guard, that still does not revoke people's right to own weapons.

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The Second Amendment to the Constitution?

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