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Joined: 11/29/14 Posts: 353
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So why did the drafters include the militia clause?

Also, I don't think your interpretation of "militia" squares with the text of the Constitution. Article I specifically vests Congress with the authority "to provide for organizing, arming, and disciplining, the Militia." And Article II makes the President the Commander and Chief of not only the Army and the Navy, but also "the Militia of the several states, when called into the actual Service of the United States."

These clauses clearly show that the "well regulated" Militia was not meant simply to provide citizens with a safeguard against an oppressive government. It was seen as a tool of the government that could be employed to assist in the nation defense. President Washington raised a militia to fend off the Whiskey Rebellion, and the Militia was later deployed to fight in the War of 1812. The National Guard was designated as part of the Militia of the several states under 32 U.S.C. 101, et seq.

As to your natural rights theory, that's an interesting point about the text of the amendment. But under Locke's essays, can't natural rights be sacrificed when we enter into a social contract? And wouldn't it be legitimate as part of that social contract to agree that people would have a constitutional right to keep and bear arms only for purposes of maintaining a well-regulated militia, as Chief Justice Berger posited and the militia clause indicates?

That's not to say that the states and Congress would or should prohibit them in all other circumstances. Rather, it's just to say that the decision would be left to the people, except in for purposes of maintaining a well-regulated militia. Even if the right to bear arms were considered a natural right, I don't see the issue with finding that, when the constitution was ratified, the people entered a social contract limiting that right for purposes of maintaining the well-regulated militia.

This is consistent with what the US Supreme Court held in Miller. Then, the Court changed course in Heller. It's a difficult issue, but I'm not convinced by the Court's analysis of the militia clause in Heller. It seems to render that clause as a throwaway that has no limiting effect. That goes against well-established rules of construction that prohibit interpreting constitution or statutory language as meaningless surplusage.

[Post edited by churdslick at 08/11/2019 1:36PM]

(In response to this post by BetterDeadThanRed)

Posted: 08/11/2019 at 1:22PM


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