2nd amendment definition of "arms"

[kcbrown]

KCbrown, I had posted this question half heartedly in another thread here, but I would be interested in your opinion.

What is to stop any specific state or even locality from building their own militia with fully automatic weapons, hand grenades, tanks and stinger missiles?

That's simple. Federal prohibitions against possession of such weaponry. In the federal system, federal law supersedes state law. You'd run afoul of all sorts of ATF regulations, just for starters.

Even if you built such a force, once prohibitive federal law is in place, it'll supersede state law and that'll be that. You know the federal courts will uphold such laws regardless of whether or not there's any real Constitutional authorization for them.

If a community used their existing voting bodies to allocate tax revenue to fund such a militia under their existing state or local laws, would it be legal in the eyes of ATF and DOJ? Would it be a viable challenge to the current anti-2a movement? It seems that this avenue may be a more viable method for community of likeminded individuals to test the limits of current 2a interpretation.

Well, if you don't run afoul of federal supremacy, then yeah, you could do that. But the problem is that it wouldn't do much with respect to the anti-2A movement, because the entire thing would still be under government control.

Remember that the bulk of 2A violations are being performed by the states.

To take this line of through further could Texas or Arizona create a heavily armed civilian force to stop illegal immigration along their borders? Or more forcefully deter drug smugglers? Suppose the state of California decides to get serious about defending itself against what they perceive as federal government tyranny against sanctuary cities? Could likeminded citizens organized by the state arm themselves in defense of their beliefs? While I don’t agree politically with the last example, it could be interpreted as the exact type of situation that the founding fathers envisioned.

In practical terms, sure, they could do that. In legal terms, it would depend on the prohibitions that currently exist at the federal level. I believe those prohibitions are considerable.

One could argue that the state National Guard units are already that, but those by law ultimately answer to the President when the President issues orders to them. Here, you're talking about arranging state-level military units which answer to no federal authority. That said, if the federal government gets bad enough, the National Guard could, of course, choose to ignore the feds at that point, and it would indeed serve the purpose you speak of.


It's an interesting idea. I just don't know enough about federal law governing things like explosives to say anything about what roadblocks you'd run into with that, but I expect those roadblocks to be considerable, and for further roadblocks to appear almost instantly if some state dares to even try it. At that point, one would hope that the citizens that comprise the force you're thinking of here (which looks a lot like the National Guard) would refuse to comply.

 

[Beancounter]

KCbrown, I had posted this question half heartedly in another thread here, but I would be interested in your opinion.

What is to stop any specific state or even locality from building their own militia with fully automatic weapons, hand grenades, tanks and stinger missiles? Sent from my iPad using Tapatalk

Nothing at all. That falls under states rights and we currently call that the National Guard.

The National Guard is a derivative of the Minute Men who were, the Militia.

 

[Jim12]

"Deadly force" doesn't just come in the form of B52s.


One would hope the lawyers would be enough. But I should note that this is only an article of faith.

Lawyers didn't save the tens of millions of people who died in the Soviet Union, or China, or Nazi Germany.

And you didn't answer my question: would you let the government take your life, or the lives of your children, without so much as firing a shot against the government in protest?




Would you have told them that they were wrong to do so? They did bring lethal force against a government entity, which is precisely what you're arguing that people should never do under any circumstances, right?




I'm not predicting anything. That's perhaps part of the misunderstanding here. There's a difference between being prepared for the worst and believing the worst will happen. One cannot properly deal with the worst case scenario if one is unprepared for it, but being prepared for it will not make it happen on its own!

It's kinda like the U.S. military. Why does it have a nuclear arsenal? Is it because a nuclear war will happen? No. It's because, firstly, having that arsenal means that nobody dares to credibly threaten the U.S. with destruction, lest they be blown off the map (this is the equivalent of the citizenry being so well armed that the government dare not trample upon them); and secondly, the U.S. might actually need to use at least some of it to beat a particularly obstinate and strong enemy, which would otherwise destroy the U.S., into submission (this is the equivalent of the citizenry actually being faced with having to take their liberty back from a nasty, oppressive government). The U.S. military has a nuclear arsenal in order to be able to deal with the worst possible case, and dares not use it except when faced with that case.




Oh, believe me, I'm not writing such an article in the kind of environment we currently find ourselves in. I know it would be horrible timing. But we can have this discussion here, now, at least.

Is it simply coincidental that in the U.S., the states with the most liberty-restricting, taxing, Left-leaning, and tyranny-tilting governments are largely also those that have acted most aggressively to restrict their citizens' Second Amendment rights? What are they really afraid of?

 

[Czechnologist]

.

 

[Onceuponatime]

Awesome family history! It must have been a daunting era and tough choices when 97% would rather sit back with status quo.

 

[Crusty ol' sarge]

The 2A is clear and unambiguous. Americans have a right to keep and bear arms suitable for militia service. In today's world that includes semi-autos rifles and handguns. (Many common military rifles CAN operate in fully auto mode, but but usually AREN'T, because it decreases accuracy and wastes ammo.)

 

[Biggfoot44]

Wow. I had been skipping this thread because at the start it seemed headed into trolling crap blizzard , but it turned around.

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I really, really, really don't *want* a Civil War , round three . But not wanting isn't the same as believing somthing could never, ever happen .

*************

The other side these days talks derisively about Muskets . But put those muskets into context.

In the 1780's the Brown Bess was a representive example of state of the art , high volume firepower, Infantry weapon . percussion caps in the early 1800s were handy , but didn't fundamentally change the situation. Only in 1850s when minie balls came into common use , was potential for meaningful change. ( I could make an argument that Union Army would have been better served with a mix of up to half or so 1842 Springfields , but that's a separate discussion.)

**********

US v Miller was very badly argued by Miller's lawyers , but the SCOTUS did rule that among other things , the 2A specifically included effective millitary weapons .

In the 1780s context , the term used was arms , not boomsticks . Swords were commonly used by both Millitary and civilians well into the next century. Only takes a slight squint to include a bunch of sharp, or pointy, or sturdy blunt things generally .

********

State Militias * used to * be a counterbalance to standing Federal forces, but the various Nation Gaurd Acts since turn of 20th Century have effectively turned them into just another reserve branch of the US Military.

The various states Could indeed create true State Militias outside of the National Gaurd system , but few have them , and none seriously.

 

[Jim12]

The Second Amendment addresses an imperative: The People's ability to preserve and protect a free state, uninfringed. It not only doesn't place limitations on which arms, but it affirmatively declares that fact. By any means necessary. "Uninfringed."

Antis' arguments about muskets and weapons of the era are absurd on their face.

The First Amendment doesn't mention TV, movies, or the internet.

The Fourth Amendment doesn't speak of wiretaps, blood tests, or scanners, either.

 

[WatTyler]

Nothing at all. That falls under states rights and we currently call that the National Guard.

The National Guard is a derivative of the Minute Men who were, the Militia.

Except that the National Guards are reserve components of the United States Army and the United States Air Force (10 US Code subtitle E). What we would think of as state militias would be more like the various defense forces that some states have. Like MD and VA. Of the states that have them, only about half have weapons training. There aren't any exact comparisons between militia of today and militia of days of yore because the states today are not exact comparisons to those at the founding of our country. In my opinion, to our detriment.

 

[cowboy321]

Is it simply coincidental that in the U.S., the states with the most liberty-restricting, taxing, Left-leaning, and tyranny-tilting governments are largely also those that have acted most aggressively to restrict their citizens' Second Amendment rights? What are they really afraid of?

NY, CT, Mass,Rhode Island,California seem to fit your criteria.

 

[Jim12]

NY, CT, Mass,Rhode Island,California seem to fit your criteria.

Yes, and I would include MD, NJ, and maybe a couple of others. Plenty of Leftist urban centers, too. And the hysteria caused by crises never goes to waste, causing knee-jerk reactions in places like FL and CO.

The Founders experienced, defeated, and sought to ensure that we would have the means to prevent having to repeat history.

Did we learn enough from their experience and wisdom?

 

[Dave MP]

Except that the National Guards are reserve components of the United States Army and the United States Air Force (10 US Code subtitle E). What we would think of as state militias would be more like the various defense forces that some states have. Like MD and VA. Of the states that have them, only about half have weapons training. There aren't any exact comparisons between militia of today and militia of days of yore because the states today are not exact comparisons to those at the founding of our country. In my opinion, to our detriment.

The individual State National Guards are governed by the State.
Title 32

 

[JohnnyE]

"Deadly force" doesn't just come in the form of B52s.


One would hope the lawyers would be enough. But I should note that this is only an article of faith.

Lawyers didn't save the tens of millions of people who died in the Soviet Union, or China, or Nazi Germany.

And you didn't answer my question: would you let the government take your life, or the lives of your children, without so much as firing a shot against the government in protest?


Would you have told them that they were wrong to do so? They did bring lethal force against a government entity, which is precisely what you're arguing that people should never do under any circumstances, right?




I'm not predicting anything. That's perhaps part of the misunderstanding here. There's a difference between being prepared for the worst and believing the worst will happen. One cannot properly deal with the worst case scenario if one is unprepared for it, but being prepared for it will not make it happen on its own!

It's kinda like the U.S. military. Why does it have a nuclear arsenal? Is it because a nuclear war will happen? No. It's because, firstly, having that arsenal means that nobody dares to credibly threaten the U.S. with destruction, lest they be blown off the map (this is the equivalent of the citizenry being so well armed that the government dare not trample upon them); and secondly, the U.S. might actually need to use at least some of it to beat a particularly obstinate and strong enemy, which would otherwise destroy the U.S., into submission (this is the equivalent of the citizenry actually being faced with having to take their liberty back from a nasty, oppressive government). The U.S. military has a nuclear arsenal in order to be able to deal with the worst possible case, and dares not use it except when faced with that case.


Oh, believe me, I'm not writing such an article in the kind of environment we currently find ourselves in. I know it would be horrible timing. But we can have this discussion here, now, at least.

Judge Alex Kosinski, in his dissent when the 9th circuit refused to hear the case of Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) en banc, laid out the reasoning quite eloquently.


Judge Kozinski wrote:

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

In that 2002 case, the 9th held that 2A did not apply to individuals, rather, it applied to militias. That holding was overturned by the SCOTUS in the 2008 Heller case.

 

[cowboy321]

"Deadly force" doesn't just come in the form of B52s.




And you didn't answer my question: would you let the government take your life, or the lives of your children, without so much as firing a shot against the government in protest?

First of all, if the US Army starts doing massacres in America, we would be seeing people defending themselves. You will not see this. You live in America, not China. We do have periodic massacres in Las Vegas and Florida which do not endear the public to AR15s. These are not done by US troops.

I have a dozen pieces of shrapnel in my body and was decorated for valor under enemy fire, so don't challenge my willingness or substantial ability to defend my family with firearms and other weapons. Also don't keep droning on about the US government possibly beginning a killing spree for which we need to be prepared with military weapons to include anti aircraft. The people of China, Russia and North Korea had/have no laws protecting them from government abuse. We live in America for which you paint a grim picture of a government one day willing to take our lives. Huh? So we need to accumulate massive firepower which is quite expensive to acquire and maintain. I simply give no credibility to this assertion. None.

This is all from a Mad Max Movie. The idea of killing Americans, as I have tried to state, is way off the Grid. I am concerned about Russia and ISIS, not the US Army. The aforementioned ISIS and Russia are dangerous.

 

[JohnnyE]

It's way off the grid as far as I am concerned, but that does not mean it should not be planned and prepared for. No sane individual is, in any way, shape or form, looking forward to the Mad Max scenario unfolding. In fact like you, that prospect scares the hell of out me. Just because it is so frightening and yet so unlikely in any foreseeable time-frame, however, is not a reason to ignore it. The founders considered it, lived it, prevailed in the face of it, and recognizing its importance, enshrined the right to be prepared to do it all over again if need be. It's not impossible for it to happen. We know can, because it DID.

 

[cowboy321]

It's way off the grid as far as I am concerned, but that does not mean it should not be planned and prepared for. No sane individual is, in any way, shape or form, looking forward to the Mad Max scenario unfolding. In fact like you, that prospect scares the hell of out me. Just because it is so frightening and yet so unlikely in any foreseeable time-frame, however, is not a reason to ignore it. The founders considered it, lived it, prevailed in the face of it, and recognizing its importance, enshrined the right to be prepared to do it all over again if need be. It's not impossible for it to happen. We know can, because it DID.

I will fight the British if they try to take back the colonies!

 

[JohnnyE]

I will fight the British if they try to take back the colonies!

Recall that we were British, and overthrew our own government in 1776. We were not repelling invaders.

 

[teratos]

Recall that we were British, and overthrew our own government in 1776. We were not repelling invaders.

We were British subjects, but there were many families who had been on US soil for generations.

 

[Blacksmith101]

Arms in the Revolution were not limited to privately owned muskets. Privately owned arms included warships with multiple cannons aboard.

The Constitution includes:

In Article I, Section 8, the Constitution provides the following power to Congress:

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

During the Revolution the individual Colonies issued letters of Marque to private citizens wishing to outfit ships of war.

https://babel.hathitrust.org/cgi/pt?id=coo1.ark:/13960/t4nk3xq5s;view=1up;seq=1

A history of American privateers / by Edgar Stanton Maclay.
Page 69 (My emphasis)

In the first two years of the war New Hampshire,
although pretending to only one considerable seaport,
sent out eight privateers, while her powerful neighbor,
Massachusetts, had in commission fifty-three.
Little Ehode Island and Connecticut had six and
twenty-two, respectively, and even New York, whose
principal seaport was held by the British through
most of the war, managed to secure seven commissions.
New Jersey, in the first two years, had only
one privateer credited to her, but Pennsylvania had
thirteen and Maryland twenty-one, while six were
sent out from South Carolina and three from North
Carolina, making a total of one hundred and fortytwo
privateers fitted out by the colonists in the first
two full years of the war.

 

[teratos]

Arms. Those weapons needed by The People to crush a tyrannical government, should the need arise.