I like the Second Amendment, but not the Fourth...

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True, but ultimately irrelevant, unless you can elaborate.

It's implicit in the Amendment.

I repeat: how CAN a militia (a group of armed citizens) ensure the security of a free state using their right to keep and bear arms EXCEPT BY USING FORCE OR THREAT OF FORCE?

Or do you debate that a "free state" only means free collectively and not individually?

Debatable.

But even if I concede the argument that (2) is more broad than the Amendment allows and so (3) does not logically follow, the right recognized by the Second is a personal, individual right that is not contingent on militia service. And the Supreme Court has ruled that self-defense falls within that right, which is consistent with historical interpretation, common law, etc.

Again, it depends on whether you consider preserving freedom an individual or collective task. I think the Founders would've made no such distinction.

How large would a threat to the security of a free state have to be to justify militia action? Must the whole state be threatened? How about just a part? How small a part? A town? A home? A person?

How granular is the concept of militia? Is there a minimum number of people required?

You may argue I'm pushing the concept too far, but remember: the right to arms is an individual right.

Fascinating.

Are you saying it's debatable whether cats are dogs?

Or are you saying that logical rules that apply to discussing cats and dogs should no longer apply when discussing the constitution?

Yeah, he seems to have articulated a basis for the militias not existing at all.

"Treason doth never prosper. What's the reason? Why, if it prosper, none dare call it treason."

I'm saying that it's debatable whether a militia's legitimate role includes individual self-defense.

However, I see no reason why not, UNLESS there is a minimum size for a threat to the security of a free state for a militia to act on it, or upon the number of people who must be present for the militia to have a quorum.

I guess walking and chewing gum at the same time is too difficult.

The militia can be called upon to preserve the security of a free state against ANY threat. Including the state itself or the federal government.

For your argument to work, it would not suffice for the functions of a militia to also include some acts of self-defense; it would be necessary for all acts of self-defense to be part of a militia's role. I think it's pretty clear that that is not the case.

If an illustration is needed: One important subset of "self-defense" is its exception to the general delegation of the right of force to the state. "It wasn't murder, because it happened in self-defense." This is not compatible with acting within the role of a constitutionally legitimatized militia.

For your argument to work, it would not enough for the functions of a militia to also include some acts of self-defense; it would be necessary for all acts of self-defense to be part of a militia's role. I think it's pretty clear that that is not the case.[/quote]
Why not?

If all acts of self-defense are forceful protection of one's rights and the militia exists to enable citizen to exert force in defense of their rights, why isn't individual self-defense included?

At what point do violations of citizen's rights become a threat to the security of a free state?

Once again: If all cats are mammals, and dogs are mammals, why aren't cats included under dogs?

I really don't know, but if stand your ground is the line of defense against threats to the security of a free state, then one successful burglary, one, ever, in the history of a state, means you're not living in a free state. This seems wrong. It is also irrelevant to the cats vs dogs problem.

Except they don't seem to be different.

Then you can't draw a line between cats and dogs.

"Stand your ground" laws are irrelevant to the discussion here.

And you're wrong. A successful burglary does not mean you're not living in a free state. It merely means you're living in a free state that is not PERFECTLY secure.

Recall, the militia's function is to enhance the SECURITY of a free state. This naturally includes preserving the state itself, but it would be wrong to say that only existential threats to the state constitute a breach of security.

Come again? Cats don't seem different to dogs?

^^That's from the part of the argument that isn't about cats vs dogs; it's the reverse part where it's up to you rather than me to draw a line; and I did draw a line, regardless.

This looks to me as if you've lost track of the two problems we're discussing. If it seems to you as if I have lost track, we should either stop or start fresh, because this is going nowhere.

When you say that the militia can be called on, who calls it? Can I call upon it? Will it answer? If the role of the militia is keeping us free from a state that would oppress, doesn't it need to act independently? And if it does, then which militia is the official one, and which is just an armed mob?

I raise all of these questions because there was a time in this country when people tended to see the first clause as having actual meaning. This changed when the Black Panthers decided that they should act as a militia to protect blacks from state sponsored oppression. That's when people started to make the self defense argument, which previously nobody had thought needed Constitutional sanction.

So back to the KKK. Can a KKK militia determine that I need protection from a state tthat unlawfully (in their warped view) requires that I use a color blind policy for business transactions? Similarly, can a self-proclaimed militia protect a squatter from eviction in Nevada just because they say it's just? That's what I mean by a Pandora's Box.

To raise a different issue about the 2nd Amendment, there's the "shall not be infringed" part.

If we are to take this part seriously and are insistent on equating the 2nd Amendment right as a personal right, how can there be such crimes as illegal possession of a weapon?

It can be called by anyone, even itself if circumstances demand it.

That's "a" role, not "the" role. And, yes it is independent: the militia itself is NOT a part of the state government, though it would usually act at the state's behest and/or in the state's interest.

The one which is upholding security is the militia. If there is widespread debate about which one is acting in the interests of security, that is called civil war.

It still does have meaning; it just that, in the final analysis, the Second is about the right of the people to keep and bear arms, and not about the militia.

The militia cannot legitimately act contrary to legitimate law.

A militia could act to oppose some tyrannical government but, again, the militia better win that fight because otherwise they're not a militia; they're failed insurrectionists. "Treason doth never prosper..."

It's like this: a junior officer could depose the captain of a warship under certain circumstances, but it's BIG trouble if that junior officer's actions aren't justified.

The law allows for the curtailing of rights of those who have committed severe crimes or who are unfit to exercise them responsibly.

You could ask: why doesn't a prisoner still have his Second Amendment rights? The answer is self-evident.

So we're to read it as "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 without due process" or some such?

If the goal is, at least in part, protection from government tyranny, doesn't that go back to the question someone else raised about how the government can simply revise the law to make just about anything be considered non-infringing?

That "Without due process of the law" part is covered under one of the other amendments.

Which? The Fifth?

Why didn't the Founders include it explicitly in the 2nd Amendment, as they did other times to explicitly state that laws could curtail or influence the right (see, for example, the 3rd Amendment)?

Because most grownups can read "nor be deprived of life, liberty, or property, without due process of law" and know that this would apply to something like firearms.

The government is supposed to be (and frequently is) prevented from infringing rights by the judiciary branch, whose job it is to decide what the law actually means. Of course, a judge may not legitimately interpret the law any which way, but only in a way consistent with its plain text meaning, historical interpretations, case law, authors' intentions, etc.

There are three standards used by the Court in considering Constitutional questions:

Strict scrutiny: the highest standard, it requires that a law (1) be justified by a compelling government interest, (2) be narrowly tailored to meet its goal, and (3) be the least restrictive means to that end.

Intermediate scrutiny: the next highest standard, requires a law be shown to address an important government purpose in a way substantially related to that interest.

Rational basis review: the lowest standard, means that the law is plausibly related to some legitimate government goal.

Even if a judge disagrees with the Supreme Court's ruling in Heller (that the RKBA is individual and fundamental), he/she will have to follow it in order to rule legitimately. Since the right is fundamental, strict scrutiny will probably apply, making blanket prohibitions unlikely to survive because they're not narrowly tailored or the least restrictive means to achieve their goals.

Could a judge rule that a gross infringement was permissible? Sure. But it would be overturned very quickly on appeal.

I think it's funny how the second amendment is such a hot button issue. I'm beginning to wonder why so many who understand that one amendment so differently consistently underestimate the power of lawyers. A good lawyer could take just about any statement in just about any direction as long as it meets their agenda. Politicians are just level five mutated lawyers if you'll pardon the gamerspeek. I think both amendments are important and, I may be reading wrong so bear with me, it seems that the original poster was merely making a point about how ridiculous it is that more people care about guns then about more important things like the right to be presumed innocent, or the right to privacy.
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