Please help me check my answer. Which of the following possible court cases could be argued under the terms of the quote above?

"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."

A. a person shoots and kills someone who broke into the family's home

B. a person refuses to serve the military when called up through a draft

C. a person sues the state for building an armory on nearby property

D. a person retires from the military in order to build an independent army

On this one, I chose A. I have more questions coming later.

2 Answers

  • 7 years ago
    Favorite Answer

    I can't agree with John. The Second Amendment [2A], as interpreted by the Supreme Court, allows for the people to 'keep and bear' arms outside of a militia. (McDonald ruling.)

    Answer D on the face of it has little to do with the retirement from military service a requirement to establishing a militia? No. An army is not by definition a militia as an army is a full-time group of professional soldiers, whereas a militia is a collection of citizens called together on an ad hoc basis.

    Answers B and C are wrong - refusal of service in the military has no bearing on the 2A. C refers to a civil suit...again nothing to do with the Second Amendment.

    A: This is the only answer that actually involves the keeping of and usage of a firearm. It implies that shooting an intruder is authorized by this amendment; not true - how you protect yourself in your own home depends on state law.

  • John
    Lv 6
    7 years ago

    I think you are wrong. I think D is the most likely, and B and C could draw on the Second Amendment, but A cannot. I think you are confusing one of the reasons people now put forward in support of ownership of firearms under the Second Amendment - self-defence - with being able to use the Second Amendment to justify self-defence with a firearm.

    Answer A has nothing to do with bearing arms and everything to do with self-defence. I find it hard to see the legal relevance of the Second Amendment to the US Constitution to the case you describe, unless there was a subsidiary charge of illegal possession of a firearm.

    It strikes me that B and C are related, in that the Second Amendment asserts that one of the reasons for having armed citizens is so that the government can call forth a militia if needed, in order to keep the State free. Hence, defence of the State was clearly an important issue for the drafters of the Bill of Rights. Having just fought the War of Independence, you can understand why that would be. To properly defend the State or the State's interests, where the latter is a slippery slope, the State needs to be able to call upon citizens in times of need - the draft - and it needs to have training and storage facilities - an armoury.

    Answer D is daft as written, because no-one knows that an independent army would be. Would that be a private army? A militia? Maybe whoever wrote the question did it that way to avoid saying militia, which would give the game away. An independent army that does not recognise the authority of the State is potentially a terrorist or revolutionary group. I say potentially, because as long as they only train, and claim that they would not submit to government authority, they are fine. If they start breaking the law, they cross the line. An independent army, on the other hand, that says they are prepared to act as a militia under legitimate government authority - however defined - would be able to use the Second Amendment as a defence.

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