2nd Amendment Q & A
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.
- Second Amendment to the U.S. Constitution
Click on the questions of interest below to jump to the answers.
* Q: Isn't the militia the National Guard?
* Q: Isn't the right to keep and bear arms a collective/state's
right, not an individual one?
* Q: Does the Second Amendment give me the right to own a nuclear
bomb?
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Q: Isn't the militia the National Guard?
A: No, according to U.S. Law and the Supreme Court.
* At the beginning of this century, the militia was defined
according to 10 USC Sec. 311 as:
+ "(a) The militia of the United States consists of all
able-bodied males at least 17 year of age and, except as
provided in section 313 of title 32 [32 USC sec. 313], under
45 years of age who are, or who have made a declaration of
intention to become, citizens of the United States and of
female citizens of the United States who are commissioned
officers of the National Guard."
* More recently, the Supreme Court ruled on the matter, which of
course takes precedence, in US vs. Miller(1939):
+ "The signification attributed to the term Militia appear from
the debates in the Convention, the history and legislation of
Colonies and States, and the writings of approved
commentators [Justice Story's commentary is cited later].
These show plainly enough that the Militia comprised all
males physically capable of acting in concert for the common
defense..."
* At present, Title 10 reads as follows....
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA
Sec. 311. Militia: composition and classes
(a) The militia of the United States consists 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
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
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Q: Isn't the right to keep and bear arms a collective/state's
right, not an individual one?
A: No, it has the same status as the rights guaranteed by the
First and Fourth Amendments. See US vs. Verdugo-Urquidez (supreme
Court), 110 S.Ct. 1056, 1061 (1990):
"[T]he 'people' protected by the Fourth Amendment, and by the
First and Second Amendments, and to whom rights and powers are
reserved in the Ninth and Tenth Amendments, refers to a class of
persons who are part of the national community or who have
otherwise developed sufficient connection with this country to be
considered part of that community."
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Q: Does the Second Amendment give me the right to own a nuclear
bomb?
A: No, that's a strawman argument. US vs. Miller (supreme Court)
(1939) tells us what arms are meant in the Second Amendment:
"These show plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense...
And further, that ordinarily when called for service these men
were expected to appear bearing arms supplied by themselves and of
a kind in common use at the time."
(Note: emphasis is mine)
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by David M. Putzolu
