Second Amendment: What is the legal definition of a well regulated militia?

[Abatis]

From Five Myths About Gun Control:

Myth # 5 - The Second Amendment was intended to protect the right of Americans to rise up against a tyrannical government.. . .

Our system provides peaceful means for citizens to air grievances and change policy, from the ballot box to the jury box to the right to peaceably assemble. . . .

Thank you for this post, hopefully these gun nuts will read that myth and will be able to comprehend the true intent.

So am I to understand that the two of you do actually believe in the principle that we possess the right to consent to be governed?

[Abatis]

I wonder why you don't call ALL the many posts from your side silly when they write the good ole US of A will turn into a North Korea if we ban semi autos?
Why is that?

If there is any type of firearm and its ownership that is afforded near absolute protection under the 2nd Amendment (along the lines of political speech under the 1st Amendment) it is the type commonly referred to as "assault weapons". (at least using the criteria established by SCOTUS to decide the protection sphere of the 2nd Amendment)

If anyone is being silly it is you and your characterization of pro-gun rights argument.

[Diego]

Well-regulated

The words "well regulated" had a far different meaning at the time the Second Amendment was drafted. In the context of the Constitution's provisions for Congressional power over certain aspects of the militia, and in the context of the Framers' definition of "militia," government regulation was not the intended meaning. Rather, the term meant only what it says, that the necessary militia be well regulated, but not by the national government.

To determine the meaning of the Constitution, one must start with the words of the Constitution itself. If the meaning is plain, that meaning controls. To ascertain the meaning of the term "well regulated" as it was used in the Second Amendment, it is necessary to begin with the purpose of the Second Amendment itself. The overriding purpose of the Framers in guaranteeing the right of the people to keep and bear arms was as a check on the standing army, which the Constitution gave the Congress the power to "raise and support."

As Noah Webster put it in a pamphlet urging ratification of the Constitution, "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe." George Mason remarked to his Virginia delegates regarding the colonies' recent experience with Britain, in which the Monarch's goal had been "to disarm the people; that [that] . . . was the best and most effectual way to enslave them." A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment's overriding goal as a check upon the national government's standing army: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say "A Militia well regulated by the Congress, being necessary to the security of a free State" -- because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the "security of a free State."

http://www.lectlaw.com/files/gun01.htm

[Diego]

Militia

George Mason, one of the Virginians who refused to sign the Constitution because it lacked a Bill of Rights, said: "Who are the Militia? They consist now of the whole people." Likewise, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a "militia, when properly formed, [as] in fact the people themselves." The list goes on and on.

By contrast, nowhere is to be found a contemporaneous definition of the militia, by any of the Framers, as anything other than the "whole body of the people." Indeed, as one commentator said, the notion that the Framers intended the Second Amendment to protect the "collective" right of the states to maintain militias rather than the rights of individuals to keep and bear arms, "remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."

Furthermore, returning to the text of the Second Amendment itself, the right to keep and bear arms is expressly retained by "the people," not the states. Recently the U.S. Supreme Court confirmed this view, finding that the right to keep and bear arms was an individual right held by the "people," -- a "term of art employed in select parts of the Constitution," specifically the Preamble and the First, Second, Fourth, Ninth and Tenth Amendments. Thus, the term "well regulated" ought to be considered in the context of the noun it modifies, the people themselves, the militia(s).

http://www.lectlaw.com/files/gun01.htm

[jessup270]

According to the ATF, 1% of gun dealers are the source of nearly 60% of the illegal guns used in crimes

http://content.thirdway.org/publicat..._Criminals.pdf


In fact, there are a number of sources that allow guns to fall into the wrong hands, with gun thefts at the bottom of the list. Wachtel says one of the most common ways criminals get guns is through straw purchase sales. A straw purchase occurs when someone who may not legally acquire a firearm, or who wants to do so anonymously, has a companion buy it on their behalf. According to a 1994 ATF study on "Sources of Crime Guns in Southern California," many straw purchases are conducted in an openly "suggestive" manner where two people walk into a gun store, one selects a firearm, and then the other uses identification for the purchase and pays for the gun. Or, several underage people walk into a store and an adult with them makes the purchases. Both of these are illegal activities.

The next biggest source of illegal gun transactions where criminals get guns are sales made by legally licensed but corrupt at-home and commercial gun dealers. Several recent reports back up Wachtel's own studies about this, and make the case that illegal activity by those licensed to sell guns, known as Federal Firearms Licensees (FFLs), is a huge source of crime guns and greatly surpasses the sale of guns stolen from John Q. Citizen. Like bank robbers, who are interested in banks, gun traffickers are interested in FFLs because that's where the guns are. This is why FFLs are a large source of illegal guns for traffickers, who ultimately wind up selling the guns on the street.

According to a recent ATF report, there is a significant diversion to the illegal gun market from FFLs. The report states that "of the 120,370 crime guns that were traced to purchases from the FFLs then in business, 27.7 % of these firearms were seized by law enforcement in connection with a crime within two years of the original sale. This rapid `time to crime' of a gun purchased from an FFL is a strong indicator that the initial seller or purchaser may have been engaged in unlawful activity."

http://www.pbs.org/wgbh/pages/frontl...ocon/guns.html

Interesting article.

The problem as I see it, is that ATF can not possibly track every straw purchase of guns, even under the best of circumstances.

Lets say a bad guy just tells the straw purchasers to buy a particular brand and model from a legitimate gun seller. NO way ATF can track that or prevent such a purchase.

Maybe it time for guns to be tracked the way motor vehicles are tracked. There should be state issued title issued for every firearm sold, just like a motor vehicle title.

If you use a motor vehicle you must have an authorized title issued by the state, should be the same for firearms.

When a vehicle is no longer owned by the person of record, the state is notified, should be the same for firearms.

Then there is the liability issue for motor vehicles, that should apply to firearms.

If I sell you my truck and do not notify the state that you are the new owner and that vehicle is involved in an accident, I would be liable. Should be the same with firearms.

[jessup270]

Now is the time for storing bullet tracings for all firearms:

http://www.nytimes.com/2002/10/17/op...e-bullets.html

Every vehicle on the road today, has it VIN number registered with the state, does not seem to create a privacy issue.

Should be same with firearm bullet tracings.

[Jeebus]

According to the ATF, 1% of gun dealers are the source of nearly 60% of the illegal guns used in crimes

http://content.thirdway.org/publicat..._Criminals.pdf

I used the actual current up to date stats, with links, from the BATFE website.

You use some anti-gun blog from 1994 and pbs.

Next.

[Jeebus]

Now is the time for storing bullet tracings for all firearms:

http://www.nytimes.com/2002/10/17/op...e-bullets.html

Every vehicle on the road today, has it VIN number registered with the state, does not seem to create a privacy issue.

Should be same with firearm bullet tracings.

And then we would have learned from those "bullet tracings" (known as "ballistic fingerprinting") that the mass murder in CT was......the dead one with the gun in his hand.

And we would have learned from those bullet tracings that the mass murderer at VA Tech was......the dead one with the gun in his hand.

And we would have learned from those bullet tracings that the mass murderer at Luby's in Killeen TX was......the dead one with the gun in his hand.

And we would have learned from those bullet tracings that the mass murderer at McDonalds in San Ysidro was......the dead one with the gun in his hand.

And we would have learned from those bullet tracings that the mass murderers at Columbine were ......the dead ones with the guns in their hands.

You're inventing a solution to a problem that doesn't exist.

Just ask the MD State Police what they think about ballistic fingerprinting:

In its progress report on the Integrated Ballistics Identification System (IBIS), the Maryland State Police Forensic Sciences Division recommends that "this program be suspended, a repeal of the collection of cartridge cases from current law be enacted and the Laboratory Technicians associated with the program be transferred to the DNA database unit." So far, Maryland has spent $2.5 million over the past four years, with nothing to show for it. The report admitted, "Guns found to be used in the commission of crime…are not the ones being entered into" the system.

[soulflower]

I used the actual current up to date stats, with links, from the BATFE website.

As EmDot pointed out in post# 106, your post was misleading(par the course for you)

My link is from 2004 not 1994

Not much has changed since 2004. The ATF is still leaderless and doesn't have the resources to enforce gun laws and regulations

From the WaPo:

For decades, the National Rifle Association has lobbied successfully to block all attempts to computerize records of gun sales, arguing against any kind of national registry of firearms ownership. And despite the growth of the gun industry and the nation’s population, ATF has fewer agents today than it did nearly four decades ago: fewer than 2,500.

“If the administration and Congress are serious about addressing this problem, they need to fund the gun police, the agency charged with administering the firearms regulations,” said Michael Bouchard, a former ATF assistant director. “Unless they are going to do this completely, simply passing some form of gun legislation is only part of the solution.”

The man currently at the helm of ATF is B. Todd Jones, an interim acting director who works part time at the agency, juggling his position there with his job as U.S. attorney in Minnesota.

http://www.washingtonpost.com/invest...196_story.html