[MysticCat]

Originally Posted by shinerbock

Concerning the Second Amendment, most agree that the individual right to arms is guaranteed by the provision.

Well, we'll know soon, I guess. The Supreme Court is set to decide that very question this term. The question presented in District of Columbia v Heller is: "Whether the [D.C. laws] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

10 U.S.C. 311 defines the militia as consisting "of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States..." It also goes on to describe unorganized and organized militia, in addition to the qualifications for women.

If not I'm not mistaken, the "all able-bodies males" definition in 10 U.S.C. 311 is, essentially, the definition of the "unorganized" militia. The "organized" militia is the National Guard and the naval Militia.

What purpose would be served by limiting firearm membership to militia members? The government and the MSM has placed an extremely negative connotation on the term "militia," leading to the presumption that these people are part of fringe elements seeking to destroy the status quo. If the militia referred to is the National Guard, as some assume from Sec. 311, I think there are far too many federal ties within the Guard's organization, essentially destroying the underlying purpose.

Perhaps I'm leaning toward strict constructionism, but I think you have to consider "militia" as understood by the framers of the Constitution. The reality is that few people today think "National Guard" when they hear "militia," although it is the present-day incarnation of what the framers were talking about. You're right that they think of the nut-jobs that call themselves "militias."

I'm not sure what the "federal ties" have to do with anything, given that the militia clauses of Article 1, § 8, of the Constitution, which was ratified before the Second Amendment, clearly give Congress broad authority to organize and call up the states' militias for the militias' traditional purposes: defense and emergency law enforcement. Likewise, Article 2, § 2, again ratified before the Second Amendment, makes the President the Commander-in-Chief "of the Militias of the Several States." If the underlying purpose of the Second Amendment is destroyed by limiting its application to the National Guard due to "federal ties," then it could be argued that the underlying purpose of the Second Amendment is undermined by the Constitution itself.

As pacifistic as our society may have become, the subject matter of the Second Amendment is necessary to preserve the other fundamental rights guaranteed to citizens. If someone kicks down your door at 4am, your security system and the efficient local police may be a moot point.

I think a reasonable argument can be made that because the Second Amendment speaks specifically of the "well-ordered militia" as the reason for the right to bear arms, the right to protect your home is not encompassed within the Second Amendment. Whether it falls under the "penumbra" of that or some other amendment, I don't know (although I think it unlikely that the current Court will take to "penumbras" too much), but I can see a constitutional determination that whether one has a right to own firearms for reasons other than militia service is (1) not encompassed in the Second Amendment, and therefore (2) left to the determination of the individual states.

Again, maybe SCOTUS will sort it all out for us by this summer. Maybe.

I don't have many strong feelings on the larger subject. I wouldn't call myself pro- or anti-gun. I don't own one and don't want one, but it doesn't threaten me if my neighbor does have one. What, I suppose, I do have strong feelings about is the simplistic arguments made by both sides. Neither banning guns nor having the widest possible conceal-carry laws are the answers -- it is all, I think, more complicated than the bumper-sticker arguments one sometimes hears. I'm glad to see your posts and the other posts in this thread go beyond those simplistic arguments -- it makes the discussion more interesting and thought-provoking for me.