At the time when it was written, "well-regulated" did not mean lots of oversight by the government. It meant something closer to "properly functioning". I.e.: armed and trained sufficiently.
Trained and led in such a manner to constitute an effective fighting force.
Note that the "right of the people to keep and bear arms" is a precondition, according to the 2A, for a "well-regulated militia", not vice versa. If you want to repeal the 2A, repeal the fucker, don't try to sneak repeal under the wire with a license to twist the grammar of the law till it says what you want. That just opens the door for the government to justify violating, say, the first and fourth amendments.
> Note that the "right of the people to keep and bear arms" is a precondition, according to the 2A, for a "well-regulated militia", not vice versa.
That's a fairly strained interpretation, especially given that where the 2A sees a necessary pre-condition (well-regulated militia to the security of a free state) it expressly identifies it as such: a more reasonable interpretation would be that the 2A is based on the strongly implicit premise that right of the people to keep and bear arms is at least useful to a well-regulated militia, whereas a well-regulated militia is a necessary precondition for a secure, free state.
It is the NRA that has twisted the Second Amendment to say what they want. [0] [1]
Let me quote from [0]: The [NRA under its new leadership] pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
Look, you're welcome to your opinion; I'm not expecting to change it. But you should recognize that the point is quite a bit more debatable than you make it out to be.
Well, sure, anything is debatable if you take the Humpty Dumpty stance. But if English words mean things the language in the Constitution will hamper gun control efforts in the USA.
These articles are examples of what I call "sneaking repeal under the wire". Just because an article comes from a scholarly source doesn't mean it stands up to scrutiny: Michael Bellesiles landed himself in hot water attempting to argue this very issue, that the right to personal arms is a recent invention. The first tell I found in the sources you cited was when Toobin called the amendment text "ungrammatical"; it's perfectly grammatical, just not rendered in modern style.
A more modern restatement of the amendment would be: "Since a well-trained militia is necessary to the security of a free state, the right of the people to own and carry weapons shall not be infringed." The thinking of the time -- and this is all in the freakin' Wikipedia article on the Second Amendment should you care to look -- was that the right to self-defense and to defense against tyranny were of paramount importance -- thinking that predates the Constitution and has its roots in English law. To raise a defense force from among the people it was thought necessary to protect their right to own, train with, and carry weapons.
Now you may say that this right is trumped by others' right to live peaceably without fear of being shot. I won't disagree. But what you should be agitating for is repeal of the second amendment, whose language is very plain once you parse it; not for the courts to obfuscate and reinterpret the meaning. That way does lie tyranny, for the next step is for the courts to interpret away your right to not be searched without a warrant, your right not to be punished for a crime without due process, etc. Because hey, the Constitution is a living document; that means its meaning in times of old has nothing to do with today.
(My belief is that the Constitution was intended as a living document and that's why it has a well specified amendment process of which we should avail ourselves.)
I will admit that I have mixed feelings about the Second Amendment. As does the Supreme Court; Heller was a 5-4 decision, in which the minority disagreed with the interpretation of the text that you claim is plain and indisputable. Furthermore, "Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia." [0] You could argue, I suppose, that the true meaning of the amendment was forgotten and has been recovered, but then I think you should attempt to explain why that happened.
> Now you may say that this right is trumped by others' right to live peaceably without fear of being shot. I won't disagree.
Okay -- we agree on something :-)
> But what you should be agitating for is repeal of the second amendment
This doesn't follow. We all know about restrictions on speech that are seen as legitimate -- yelling "fire!" in a crowded theater, etc.; the examples are familiar -- yet the arguments for these restrictions are not taken as arguments for repealing the First Amendment altogether.
I certainly think that my right to live peaceably, as you say, without fear of being shot, is worthy of some protection and needs to be balanced against gun ownership rights.
I also wonder how well even armed citizens can defend themselves against a tyrannical government in this era of militarized police, modern weapons, and SWAT teams. 240 years ago, the arms technology race had only barely started; now it is in full swing. We know how arms races end: the side with the most money wins. Even if the Second Amendment came to be read to permit citizens to own tanks, drones, etc., people can't afford them.
Personally I think the right to communicate with my fellow citizens unmonitored is more important, and in the end more likely to be decisive.
Common law from which US law descends has the right to self defence which is why until after a panic over the general strike the UK had fairly liberal laws around gun ownership.
There is absolutely no point in debating the past or the original text of the Second Amendment.
Post-Heller, post-McDonald, it's moot. The Court's word is Constitution.
If the anti-gun (really, pro-authoritarian-state) minority wants to ban firearms: they should lobby for a Constitutional amendment (which will undoubtedly fail), and then lobby for each individual state to ban arms - keeping in mind, some states have arms in their constitutional documents as well.
And then, once all of the appropriate legislative and political actions have been completed, this group can have police (who will need firearms to actually enforce this law, and most of whom are pro-private-firearms themselves) go door to door and round them up.
Sandy Hook, Colorado (3 times in recent memory), Lafayette, San Bernardino, et cetera, et fucking cetera.
Every time one of these shootings happens RKBA repeal gets dragged closer to the Overton window. The only question is how much more human blood must be shed.
It was not the NRA that pushed for this interpretation. If you are interested in the Second Amendment, I recommend reading this US Supreme Court Case opinion in full: https://www.law.cornell.edu/supct/html/07-290.ZO.html
It explains the meaning of the words and phrases, and their intention, and provides ample justification in the way of founding-era sources.
> There are many reasons why the militia was thought to be “necessary to the security of a free state.” [...] When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. [...]
> That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.
>Note that the "right of the people to keep and bear arms" is a precondition, according to the 2A, for a "well-regulated militia"
Arms are indeed a precondition for a militia, but it seems to me the 2A only exists because the need for a militia was perceived at the time. I'm not so sure that's the case today. In any event, you make a very good point about the danger of 'creative' interpretations.
The US Supreme Court analyzed the meaning of the text in District of Columbia v. Heller:
> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
> Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. [...] [A]part from [its] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
The court also examined the meaning of the word "militia". The word had a different meaning at the time than it does today. The militia did not refer to a specific military force, like the National Guard today. Rather, it referred to a section of the populace:
> As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
> We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
Indeed, I'm making an is-ought distinction here. Ought there be a protection of RKBA? Maybe not. The anti-gun lobby has a fairly strong case. But there is, in the form of the second amendment, and if we try to circumvent the Constitution through Humpty-Dumptying rather than addressing its deficiencies through the amendment process, the Constitution means nothing.
To say that the country needed well managed militias to protect the country. Remember, the first several battles of the revolution were local Massachusetts militias defending their local weapons caches and supplies.
I see how that was critical to the nation at the time, but then how is that amendment relevant in the modern world? Standing armed forces protect our national integrity, and state/county/municipal agencies maintain local order. Aren't local militias effectively obsolete?
That's only an argument for a constitutional amendment. The justice system can interpret a law in light of modern technologies (I don't think anyone argues that the first amendment gives you the right to use a printing press but not an electronic printer) but they have to follow the intent of the constitution.
Which, as a firearms enthusiast and pro-gun individual: I wish groups would attempt to make.
If you want to curb private firearm ownership: please, introduce a constitutional amendment instead of trying to throw shit against the wall and see what sticks.
Then, once said amendment fails to get even a fraction of the support necessary, we can go back to business as usual.
You misunderstand the meaning of "militia". The term militia as used in the constitution essentially means the entire populace, all people capable of fighting. The US Supreme Court in Columbia v. Heller examines the meaning of the words and phrases in the Second Amendment: https://www.law.cornell.edu/supct/html/07-290.ZO.html
An armed populace was viewed as crucial during the founding of the US because when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. The modern era demonstrates that this is still relevant: see Iraq, Ukraine, Syria, etc. There's a great documentary on Netflix that shows, from footage on the ground, what transpired while the Ukraine crisis unfolded. Ukraine's local self-defense forces gave the protesters a foothold that eventually took down the unjust government (at least, that's the narrative - I'm only remarking on their effectiveness as a fighting force, and their relevance to political change).
Standing armed forces protect our national integrity, and state/county/municipal agencies maintain local order. Aren't local militias effectively obsolete?
Echoing Pyxl101, "Quis custodiet ipsos custodes?" ("Who will guard the guards themselves?"). We gun owners believe we provide a needed bulwark against the worst forms of tyranny, and certainly notice that 20th Century tyrants for some inexplicable reason fell disarming targeted populaces was a prerequisite to slaughtering them wholesale. Given what an abattoir the 20th Century turned out to be, maybe you should seriously consider that bit of unpleasant history?
Fair point about the separate clauses-- but what's the intent of the "well-regulated" part, then?
That whole preface was a compromise of sorts, a sop thrown to the anti-Federalists who wanted to outlaw standing armies and depend on the militia system. Which just wasn't practical in such an unthreatened place like the US, compare to Switzerland---and I wonder what will happen with their post-Cold War downsizing when things get hot again.
And there was the minor detail that George Washington, the essential man in all this, wouldn't sign off on such a prohibition. He's not as anti-militia as he's sometimes made out to be, but his position that a complete dependence on the militia system wouldn't do was unrefutable.
The well regulated part of it came from the observation that if you just keep the militia's weapons in armories except for formal practice and fighting, an excuse the British used to confiscate all of them in Boston, the militia members aren't going to be any damn good with them when put to the test.
Again going back to the Swiss system, at least during the Cold War once you were in the reserves you had to qualify with your personal weapon once a year, failure to score high enough signed you up for a 2 week refresher course. So they have an insane number of 300 meter range lines, subsidized and very high quality ammo sold at them (in theory you're supposed to use it all up on the spot), and a whole bunch of other things to encourage good marksmanship.
Hmmm, you know, going back to what the British did back then, very few of the arguments are new, and the Constitution and the Bill of Rights were based on direct, living memory of their depredations back then. Modify at your peril.
The US Supreme Court analyzed the meaning of the 2nd Amendment in District of Columbia v. Heller:
> [We] explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. [...]
> Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. [...]
> There are many reasons why the militia was thought to be “necessary to the security of a free state. [...] When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.