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Comment by seanmcdirmid | Hacker News Reader

> Because the right to guns is in our charter, it makes regulation much more difficult to implement and enforce (not to mention, much more unpopular because to many folks it feels like a betrayal of the charter).

There are some debates, however, that the first clause of the second amendment actually is meaningful and not just meaningless flavor text. The interpretation of the second amendment therefore has undergone a lot of change over time, and is now interpreted way more broadly than it was in the early years of the country (i.e. when many of the founding fathers were still alive). An interpretation where the militia clause was largely meaningless didn't really come into vogue until the 1970s, and the NRA has a version of the 2nd amendment on its headquarters that edits it out.

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> There are some debates, however, that the first clause of the second amendment actually is meaningful and not just meaningless flavor text.

Nobody says it's meaningless, it just doesn't mean what gun control proponents want it to mean, due to (a) a purpose, even a stated one, not being a limit on Constitutional rights; and (b) what the word "militia" means in the text.

(a) "The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting." District of Columbia v. Heller. There are numerous rights in the Constitution that are not limited solely to their original or documented purpose. The equal protection clause protects against gender, sex, and sexuality discrimination just as much as it protects against discrimination based on race or condition of former servitude. The First Amendment protects artistic expression and personal speech just as much as it protects political speech. A documented purpose does not limit the applicability of a Constitutional right.

(b) It is nearly a century-old precedent that the militia refers to every able-bodied man, not just those in, e.g., the National Guard. United States v. Miller, 307 U. S. 174, 179 (1939). That is why "the militia is assumed by Article I already to be in existence," District of Columbia v. Heller, rather than being created by Congress or a state.

"District of Columbia v. Heller" was in 2008, and was the first time the Supreme court ruled that the 2nd amendment allowed the right to bear arms outside of a well organized militia. In fact, they had 4 chances to to do that in the early 20th century alone, passing on it. It was only with a more conservative court that existed recently that the interpretation that the militia clause of the 2nd amendment was just flavor case became law of the land.

You are literally the only person saying it is "just flavor." Please do not repeat partisan talking points, as they do not contribute to thoughtful discussion or intellectual edification.

I specifically cited United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court reversed a lower court's holding that the National Firearms Act was unconstitutional as it pertained to possession of a short-barreled shotgun. Importantly, their reasoning was not that the Second Amendment does not protect individual rights, but that such a firearm had no reasonable relationship to contributing to the common defense.

It also explicitly held that "the Militia comprised all males physically capable of acting in concert for the common defense," id. at 179. Twenty-first century gun control proponents seem to suggest that it only pertains to those in the National Guard or another milita-like body organized by statue (e.g., the Texas State Guard), but that is simply not the case and never has been.

> You are literally the only person saying it is "just flavor." Please do not repeat partisan talking points, as they do not contribute to thoughtful discussion or intellectual edification.

That is a lot of words for committing an ad hominem.

> It also explicitly held that "the Militia comprised all males physically capable of acting in concert for the common defense," id. at 179, not whatever 21st century gun control proponents want it to mean.

The Swiss militia was in existence at the time the constitution was written, they knew exactly what they were talking about. And it is exactly what they still have and what we no longer have.

Miller is pro-interpretation that the first clause of the 2nd amendment isn't meaningless.

my understanding is the exact opposite. how odd.

>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.

Well regulated means well armed. Militia means citizen army, and the people means the people.

It is hard to come to a different understanding of the amendment without redefining these terms.

My understanding is that those favoring a living constitution focus on the purpose or why of the amendment was there, and and that a citizen militia is not longer necessary.

It definitely means a well organized militia, like the ones they use to defend Switzerland, which every male belongs to and has to go through a year or two of conscription before they take a gun home.

A well balanced breakfast being necessary to the start of a healthy day, the right of the people to keep and eat food shall not be infringed.

Who has the right to keep and eat food, the balanced breakfast or the people?

> Well regulated means well armed

How do you figure this? Is there judicial precedent for this particular interpretation?

There seems to be some (literary, rather than judicial) precedent for that meaning of the expression, but on the other hand I haven't seen conclusive arguments as to why they would have chosen that particular turn of phrase to say something other than "governed by rules."

Consider another part of the US Constitution, the Commerce clause: "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

In this case "Regulate" is clearly used to mean the action of setting rules. It's a bit weird that they would use that word again in a legal context to mean something non-legal.

Even if it were taken to mean regulate, in terms of rule setting, you still have to deal with the fact that the right is assigned to "the people", and not the state militias.

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause.

These instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

As the SCOTUS found in Heller, The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

Historically military slang referred to the “regulars” which was the way to say “they guys you call upon to get dirty” and would mean different things depending on the army… a British regular would be a redcoat conscript, a US regular would be a militia volunteer from one of the colonies.

Guns were not issued to citizens, but were owned personally. It makes sense that the resulting law would read “we want the ability to have a militia and have those guys bring along their guns”. Especially because there was no standing army at the time, it was envisioned that the US Army was simply a way to refer to a conglomeration of state militias, not an organized Army.

See The meaning of the phrase "well-regulated" in the 2nd amendment[1].

[1]: https://www.constitution.org/1-Constitution/cons/wellregu.ht...

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