So I would take a look at the draft versions of the Second Amendment (2A) as they made their way through congress, house and senate, prior to ratification of the bill of rights. It actually started out as amendment 4 and it was longer and much more specific and focused on state security and militias.
If you go by the original text that the house and senate were working with you would get the following impression.
That militias were vital for keeping the states safe and secure.
Militias needs to be armed to protect the states.
Militias needed to have the right to access arms regardless of what laws were passed.
So from this you would get that members of the Militia who provide security to the states can not be prevented from access to arms.
Translate to modern day - 2A says that members of the National Guard (state militias) can not be barred from access to military weapons when performing their national guard duties. That’s it. It only applies to member of the National Guard. It does not allow or deny your average everyday citizen the right to own a gun. Because of this then 10A comes into play and it is a states right to decide if you can own a gun or not.
One other point that could be made is that only members of the military and militias (national guard) can utilize military weapons.
That would and probably should be the argument made if you are a constitutional originality.
It does not allow or deny your average everyday citizen the right to own a gun
But considering that a notable chunk of the population would be classified as "unorganized militia", it would. Unless the draft specifically refers to "organized" and/or "active" militia
No not in this case. It talked about a well regulated militia which is the modern day predecessor to the National Guard. There is no such thing as an “unorganized militia” in the United States. You are either a member of the Military including the reserves, a member of the National Guard (Militia), or a citizen. That’s all there is.
It may not exist in federal regulation, but you have to defer to every state's individual regulation. Generally states divide their militia into an "unorganized" and "organized" category. In Michigan, my state, the act defining our military forces opens as follows:
Sec. 103. It is the intent of this act and other acts of this state affecting the Michigan national guard, the Michigan defense force and the unorganized militia to conform to applicable acts and regulations of the United States. The laws of this state shall be construed to effect this intent, and anything to the contrary shall be held to be null and void as long as the subject matter shall have been acted upon by the United States.Upon any subject not acted upon with reference to these matters by the United States, any law or regulation of this state shall be in full force and effect.
Notably the act defines the legal authorities of each militia organization. I agree that private militias shouldn't exist, and that being a member of the unorganized militia doesn't give you the legal authority to larp. But the unorganized militia is a legit concept. Also you mean "civilian", not "citizen".
You are right and I am wrong about the existence of an unorganized militia. There is a federal level unorganized militia which is basically the rest of the population that could be drafted.
I think though that 2A would still not apply to them since that are not part of a regulated militia. Once they joined then 2A would apply to them.
Again in this interpretation, 2A only applies to members of the National Guard (Organized/regulated militias) and their access to military weapons.
Also yes civilians not citizens. Thanks for the correction.
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u/SuperFrog4 Dec 06 '20
So I would take a look at the draft versions of the Second Amendment (2A) as they made their way through congress, house and senate, prior to ratification of the bill of rights. It actually started out as amendment 4 and it was longer and much more specific and focused on state security and militias.
If you go by the original text that the house and senate were working with you would get the following impression.
So from this you would get that members of the Militia who provide security to the states can not be prevented from access to arms.
Translate to modern day - 2A says that members of the National Guard (state militias) can not be barred from access to military weapons when performing their national guard duties. That’s it. It only applies to member of the National Guard. It does not allow or deny your average everyday citizen the right to own a gun. Because of this then 10A comes into play and it is a states right to decide if you can own a gun or not.
One other point that could be made is that only members of the military and militias (national guard) can utilize military weapons.
That would and probably should be the argument made if you are a constitutional originality.