Question on Constitutional rights with respect to gun ownership

[Squatch]

1) Does the US Constitution give rights to citizens or protect citizens' rights?

2) If the former, does the government give the right to free speech, keeping and bearing arms, etc?

3) If the latter, how does one reconcile the requirement that keeping and bearing arms (by some militia) is done so in order to secure a free state, and not individuals?

[jody]

1. RE: 3) RKBA for militia and individual rights. History of state

constitutions that predate our Constitution recognize that arms used to perform militia duties are the same arms used to defend self. Those states also said each militia man was responsible for providing his own firearm and ammunition. The right to defend self and state was recognized as an inalienable right and an inalienable right can not be given away.

[slackmaster]

2. The Constitution and BoR define the scope and power of government

Under our system all conceivable rights exist except those that have been curtailed through due process of law.

1) Does the US Constitution give rights to citizens or protect citizens' rights?

The Constitution grants certain powers to state and federal governments. It is the job of governments to protect citizens' rights.

2) If the former, does the government give the right to free speech, keeping and bearing arms, etc?

No, government can only limit the exercise of those rights.

3) If the latter, how does one reconcile the requirement that keeping and bearing arms (by some militia) is done so in order to secure a free state, and not individuals?

States can do whatever they want with their militias. The Second Amendment was written to ensure that the federal government cannot interfere with the states in that regard. Most states have neglected thir militias.

The right of citizens to keep and bear personal arms arises from the basic freedom to do as we please, as long as what you are doing has not been proscribed by due process of law.

[hansberrym]

3. But states can't do whatever they want with their militias.

The constitution gives the ultimate power over the militia to the Federal government.

The states do not even have "their own militias" if what you mean is something completley separate from the national militia. From the first federal militia act of 1792 everyone capable of bearing arms enrolled in the state in which he resided and they were to be put on the national roll at the same time. Everyone enrolled in a particular state was also enrolled in the national militia, so there was no separate militia reserved to the states that was not liable to be called into federal service. Furthermore the states do not own the militia anymore than they own the people. The state's responsibility was to maintain the rolls and provide the training as prescribed by Congress.


"The Second Amendment was written to ensure that the federal government cannot interfere with the states in that regard"

Perhaps those who did not fully support the federal government saw the push for a Bill of Rights as an opportunity to restrain its power vis-a-vis the state governments. Perhaps the non-establishment clause and the free exercise of religion of religion clauses of the first amendment were approved by some or all of the members because they saw the first amendment as a way to protect state-established religions from federal encroachment. But does that mean that "the free exercise of religion" is not an individual right? The obvious answer is no. The same is true for the second amendment.



What I find odd about your argument is that somehow a supposed purpose trumps the written purpose (the first phrase or preamble). And this is held to be true even though other proposed amendments that would have, in plain language, given the states greater authority in regards to the militia were never even given serious consideration by the federalists. Besides that, it is a fact that the federal government still has the power to call the militia into federal service without the consent of the states, so the supposed ensurance is next to useless in that regard.


Moreover the Federalists did comment publically on the second amendment as it went out for ratification and they did in fact describe it as a right of the people to keep and bear their "private arms". Meanwhile, the anti-federalist complained that the second amendment only related to personal rights and that it did not give greater protection to the states. But there was no one making the collective rights case in 1790.


The right to bear arms arises from the right of self-defense which is paramount to all positive forms of government. It is protected in both our state and federal constitutions, though not yet declared by the Supreme Court to be incorporated under the 14th against the states (though the framers of the 14th amendment did make that claim). And while its existence is denied in many federal circuits, its existence does not depend on government.

[jody]

4. Congress' authority over the militia is limited

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions" That limitation applies to the unorganized militia and not the organized militia because members of the organized militia take a dual oath of enlistment. That dual oath is in both the state and National Guard.

Congress has been derelict in its duties to the unorganized militia because the Constitution says "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

Although most states have a minimally organized "unorganized militia", they are mostly unarmed. As a minimum, congress should provide sufficient standard individual arms and ammunition to equip the "unorganized militia". That would be the M-16 rifle and M-9 pistol and ammunition for them.

ON EDIT ADD:
You might wish to visit the organization for the "unorganized militia" at The State Guard Association of the United States. You can go from there to various state sites and see how they are organized and the state laws that give a governor authority over the "unorganized militia".