Looking for opinion from someone on Consitutional Law or Legal Experience on 2A issue

SmokeEaterPilot · Feb 25, 2018

I'm not looking for a fight or argument. Looking for someone who has legal experience on interpretation. Or a well versed history buff.

This was a passing thought, that is all. I could be off.

In the Bill of Rights, the (for the most part) first 9 are all a direct contract between the individual and the Federal Government. Amendment 10 is the "catch-all" of limiting Federal issues not directly laid out to the states.

The Ratification debates of 1787/1788 dealt with the Federalist and Anti-Federalists over how much power to give to the Federal Government. It's been a while since I've looked into this but I remember reading that the Bill of Rights were a compromise between the Federalists and Anti-Federalists to get the Constitution ratified, a direct contract between mainly the individual and the states (article 10) to make sure the Federal government was not
If I'm wrong in how I remember reading about this I'm not offended, and correct me.

Let's get into the 2nd Amendment which is what we all love defending.

"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."over reaching.

Has anyone in history made an argument that a "free state" is not a state of Maryland, Pennsylvania, Virginia, etc. But a free state of .... (free from tyranny, for lack of better definition).

Looking more to see if anyone has made the argument that "free state" was not intended towards free state of Maryland or free state of Pennsylvania, but a free state as in free state of existence for the individual from tyranny.

All amendments 1 thru 9 all deal with the individual and the Federal government. Amendment 10 is directly towards state governments. Has anyone else (in history) considered "free state" might not be "state government?" There may be a better argument than the one I wrote.

This is just a thought on the interpretation of 2A. If anyone has Law experience, or read more Federalist papers, or letters from our founding fathers to rule out that perception of the 2nd Amendment.

Again, just a thought.....

Occam · Feb 25, 2018

It doesn't matter if the musings at the time were referring to "the state" meaning the entire notion of government, or "a state" as in, Vermont or Maryland. Because the Bill of Rights explicitly trumps any considerations at the (individual) state level. The states can't pass laws that infringe on the things the BoR said were off limits. And that's the entire point of the BoR - it's about recognizing we all have rights, and in anticipation of there being people with government power who might want to limit those rights, the constitution heads those people off on some of the big ones (speech, assembly, self defense, due process, etc).

Regard the 2nd Amendment in particular, it's probably easier to imagine it being written in contemporary conversational language. Something like, "Since it turns out we aren't going to be able to run a free and secure new country without at least SOME kind of standing military - even at just the militia level, nobody with any government power can use the existence of that standing military as an excuse to deny citizens their personal right to keep and bear arms."

Why? Because they'd just shaken off a government that DID use that excuse, and they knew that people with that instinct would continue to crop up. So they set right out to head them off. The first portion of the 2A simply anticipates the most likely excuse that some people would use to deny your ability to defend yourself, with your own personal arms.

Aventus · Feb 25, 2018

SmokeEaterPilot said:
I'm not looking for a fight or argument. Looking for someone who has legal experience on interpretation. Or a well versed history buff.

This was a passing thought, that is all. I could be off.

In the Bill of Rights, the (for the most part) first 9 are all a direct contract between the individual and the Federal Government. Amendment 10 is the "catch-all" of limiting Federal issues not directly laid out to the states.

The Ratification debates of 1787/1788 dealt with the Federalist and Anti-Federalists over how much power to give to the Federal Government. It's been a while since I've looked into this but I remember reading that the Bill of Rights were a compromise between the Federalists and Anti-Federalists to get the Constitution ratified, a direct contract between mainly the individual and the states (article 10) to make sure the Federal government was not
If I'm wrong in how I remember reading about this I'm not offended, and correct me.

Let's get into the 2nd Amendment which is what we all love defending.

"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."over reaching.

Has anyone in history made an argument that a "free state" is not a state of Maryland, Pennsylvania, Virginia, etc. But a free state of .... (free from tyranny, for lack of better definition).

Looking more to see if anyone has made the argument that "free state" was not intended towards free state of Maryland or free state of Pennsylvania, but a free state as in free state of existence for the individual from tyranny.

All amendments 1 thru 9 all deal with the individual and the Federal government. Amendment 10 is directly towards state governments. Has anyone else (in history) considered "free state" might not be "state government?" There may be a better argument than the one I wrote.

This is just a thought on the interpretation of 2A. If anyone has Law experience, or read more Federalist papers, or letters from our founding fathers to rule out that perception of the 2nd Amendment.

Again, just a thought.....

The 2nd Amendment was adopted on December 15, 1791. At that time, there were only 14 states ratified. The Constitution and it's Amendments applied to the entire territory, not just the ratified states. So either the 2nd Amendment only applied to the ratified states (it didn't) or the term "free state" doesn't apply to a state at all. The Constitution also begins with "We The People", which refers to all of us as individuals, not as part of a state.

Just my 2 pennies and the country needs many more conversations on the subject!

Mule · Feb 25, 2018

I’m far from an authority when it comes to law. However, your query has piqued my curiosity.

If I’m understanding your question correctly, the interpretation you’re asking about seems to be more “as a person exists in the state of nature”, right? Meaning, “the right to keep and bear arms is necessary for an individual to maintain their naturally occurring condition of freedom”, or something to that effect?

When reading the term “free state”, I’ve always understood the word “state” to have the meaning of “nation” or country. I’ll defer to those in the community who are more educated on the topic than I, but I believe that to be the definition that’s generally used by the courts as well.

Anyway, a cursory search hasn’t yielded anything yet. I’ll keep poking around, though, as I think it’s an interesting thought.

In the meantime, here are here are links I found to writings of Eugene Volokh (2007) and David Harmer (1998), exploring the meaning of “free state”:

Volokh

http://volokh.com/posts/1181941233.shtml

http://www2.law.ucla.edu/volokh/freestate.pdf

Harmer

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2793&context=lawreview

Chauchat · Feb 26, 2018

Talking about the constitution and the second amendment is fine. But.... But do yourselves a great kindness and read Lee's resolution on June 7th 1776 then take a deep breath and read the Declaration of Independence and the Articles of Confederation word for word out loud. Another deep breath. And then after all that read the Constitution without the amendments in mind. Lastly, read the amendments.

You should come to a couple of conclusions. One of which is Hamilton was a rotten SOB and the American experiment died the day the Constitution was ratified. I can wait for the others.

Lee's Resolution
http://avalon.law.yale.edu/18th_century/lee.asp

Declaration of Independence; July 4, 1776
http://avalon.law.yale.edu/18th_century/declare.asp

Articles of Confederation : March 1, 1781
http://avalon.law.yale.edu/18th_century/artconf.asp

Constitution of the United States - 1787
http://avalon.law.yale.edu/18th_century/usconst.asp

You will find the flavor of your understanding of role of national government and the congress of the States should change in ways that will astond you.

SmokeEaterPilot · Feb 26, 2018

Mule said:
I’m far from an authority when it comes to law. However, your query has piqued my curiosity.

If I’m understanding your question correctly, the interpretation you’re asking about seems to be more “as a person exists in the state of nature”, right? Meaning, “the right to keep and bear arms is necessary for an individual to maintain their naturally occurring condition of freedom”, or something to that effect?

When reading the term “free state”, I’ve always understood the word “state” to have the meaning of “nation” or country. I’ll defer to those in the community who are more educated on the topic than I, but I believe that to be the definition that’s generally used by the courts as well.

Anyway, a cursory search hasn’t yielded anything yet. I’ll keep poking around, though, as I think it’s an interesting thought.

In the meantime, here are here are links I found to writings of Eugene Volokh (2007) and David Harmer (1998), exploring the meaning of “free state”:

Volokh

http://volokh.com/posts/1181941233.shtml

http://www2.law.ucla.edu/volokh/freestate.pdf

Harmer

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2793&context=lawreview

Thanks, although I wasn't articulating my questions properly. Those two articles answered my question perfectly. Thanks for sharing!

Looking for opinion from someone on Consitutional Law or Legal Experience on 2A issue

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