How does the &quot;well regulated militia&quot; clause affect laws? The second amendment to the US Constitution states: 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. What, if anything, about the law(s) in the US would be different if the italicized text had been omitted?
The operative clause is constrained to interpretations that are consistent with the prefatory clause. "But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." DC v Heller 554 U.S. 570 (2008) The majority in Heller, after interpreting the operative clause "return[ed] to the prefatory clause to ensure that [their] reading of the operative clause is consistent with the announced purpose." In their case, since their interpretation of the operative clause was consistent with the announced purpose in the prefatory clause, the prefatory clause may seem to have no effect. However, they make the point that other interpretations of the operative clause can be ruled out by cross-checking against the announced purpose from the prefatory clause: "petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right." The court writes that if the petitioners had their way, only state-organized militias would be the beneficiary of the 2nd Amendment protections. However, the majority does not read the prefatory clause this narrowly. "[If] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny." The majority reads the prefatory clause to refer to a "citizens' militia": "the Militia comprised all males physically capable of acting in concert for the common defense".
There is no constitutional provision specifically allowing the President to dismiss a state Governor for any reason. There is no constitutional provision specifically allowing the President to dissolve a state legislature. The US Federal Constitution requires the President to &quot;take care that the laws be executed&quot;. Several relevant laws are contained in 10 U.S. Code Chapter 13 - INSURRECTION. Section 251 (renumbered from 240a) provides that: Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. Section 252 provides that: Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. Section 253 provides that: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. Section 254 provides that: Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time. Sections 251-254 of 10 USC in their current form all date from 1956, but are directly derived from the Insurrection Act of 1807. Under these laws the President has the right and duty to &quot;take such measures as he considers necessary&quot; to suppress any rebellion, which would include any proclaimed secession, including &quot;using the militia or the armed forces&quot; or any other available and effective methods. According to the Wikipedia article (linked above, citations omitted) the Insurrection Act: has been invoked throughout American history. In the 19th century, it was invoked during conflicts with Native Americans. In the late 19th and early 20th centuries, it was invoked during labor conflicts. Later in the 20th century, it was used to enforce federally mandated desegregation, with Presidents Dwight D. Eisenhower and John F. Kennedy invoking the Act in opposition to the affected states' political leaders to enforce court-ordered desegregation. More recently, governors have requested and received support following looting in the aftermath of Hurricane Hugo in 1989 and during the 1992 Los Angeles riots. In addition 18 USC Chapter 115 deals with related issues, making rebellion, insurrection, or conspiracy to rebel crimes. Section 2383 provides that: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. Section 2384 provides that: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. Under these various laws the President has power to use whatever means are required, including military force, to suppress and end any rebellion or insurrection, and arrest the perpetrators thereof. Anyone convicted by a court of insurrection is thereafter barred from elected office, federal ore state. The precedent of President Lincoln's actions at the start of the US Civil War is clear. However, the prospect of any current declaration of secession seems remote. Presumably a state could leave the US with consent of Congress, although this has never occurred and there is no specific Constitutional provision allowing it. Congress could pass further laws dealing with any actual or threatened secession, but the laws already existing seem sufficient, they give the President wide power to act in such cases. It was established by the US Supreme Court in Texas v. White, 74 U.S. (7 Wall.) 700 (1869) that secession is not legal, even if enacted by a state legislature, and specifically that the purported secession of Texas in 1861 did not legally remove it from the Union. No later court case or law has contradicted this, to the best of my knowledge.
Dale M's answer is not supported at all by history, or any mode of constitutional interpretation. I also don't find it likely. I'd say that if a duly ratified amendment said as much, that would be the law. It is certainly correct that the court could try to narrow the meaning. It's also possible to simply not follow the Constitution (as we do with state immunity and the 11th amendment). But to assume that would be done here is just speculating blindly. Of course, this question doesn't warrant much more attention than blind speculation, so my comment is not a very offensive accusation. As a few counter points, we have radically change the form of our government many times within the current constitution. Reconstruction, The New Deal and so on, all represented huge changes. Most importantly, the 17th amendment can easily be viewed as more radical than the question's proposed amendment. It completely flipped the political system upside down, orienting power in the people and the federal government, and treating the states as some weird intermediary: but we now see it as a relatively boring enactment. Certainly we could come to see the formal abolishment of the amendment process similarly, especially if it were (which it would need to be) accompanied with a new found comfort with non-textual interpretation to effectively &quot;amend&quot; through interpretation, i.e. If the textualists lost badly this amendment would seem like a relatively natural way of announcing their demise. Remember that Scalia's whole point, is that strict originalism (not saying he was actually so strict himself) would democratize by forcing change through the amendment process. If we rejected that notion (as deceptive, for example) we could (as in its not completely ridiculous to imagine) announce that rejection with the proposed amendment.
It is quite likely that a constitutional amendment was (and is) not needed to ban alcohol. For example, if the Controlled Substances Act is constitutional (and I have no reason to believe it isn't) then alcohol could be added to it tomorrow and it could be removed the day after tomorrow. Right there is the reason that you choose to use a constitutional amendment - it is as hard to reverse as it was to enact; it needs another constitutional ammendment.
Only in California. The First Amendment provides a student essentially no protection from discipline by a private university. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (&quot;The text and original meaning of those Amendments, as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.&quot;); Vaynberg v. Seton Hall Univ., No. CIV.A. 09-4999 FSH, 2010 WL 4510904, at *5 (D.N.J. Oct. 26, 2010) (&quot;In order for the First Amendment to apply, the challenged conduct must be deemed 'state action.' Seton Hall is a private, Catholic university. ... Because there is no evidence from which a reasonable fact finder could conclude that Seton Hall's conduct relevant to this lawsuit was “state action,” Seton Hall is entitled to summary judgment.&quot;) Some states, however, have passed laws requiring private schools to provide some of the protections of the First Amendment. The most robust of these is California's Leonard Law, which essentially requires private schools to adhere to the First Amendment. Other states also recognize some measure of free-speech rights for students at private institutions. For instance, both the Pennsylvania and New Jersey supreme courts have held that their state constitutions' free-speech clauses (which, unlike the First Amendment, say nothing about the government) protected peaceful protesters who distributed leaflets on the campuses of private colleges.
It is not necessary for a combatant to actually carry arms to become a legitimate target. An uniformed mechanic carrying a screwdriver at an airbase is a combatant, entitled to the protections of the conventions but also a valid target. Of course a civilian commander-in-chief does not wear insignia, but he is presumably recognizable. Civilian targets can be attacked according to the tests of military necessity and proportionality. It can be legal to attack a bridge even if it was built by and for civilians, it can be legal to attack a factory producing arms, it can be legal to attack a power plant also serving a barracks. Taking out a key command-and-control node sounds like miliary necessity to me, but surely there would be lawyers for either viewpoint.
Is it a correct inference that the right &quot;to be secure in their persons, houses, papers, and effects&quot; extends to even a private corporation? No. It's not even a correct inference that it extends by its own terms to state and local governments. In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights was enacted as part of the federal constitution and only restricts the exercise of the federal government's authority. State and local governments are instead bound by the Fourteenth Amendment, which says that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Over the years, the courts have held that state action that deprives someone of fundamental rights deprives them of life, liberty, or property without due process of law in violation of the Fourteenth Amendment. In Wolf v. Colorado (1949), the Supreme Court held that the right against unreasonable searches and seizures is a fundamental right, so state action violating it is a violation of the Fourteenth Amendment. Most of the Bill of Rights has been held to be &quot;fundamental,&quot; and people routinely say &quot;the state violated the Fourth Amendment&quot; instead of &quot;the state violated the Fourteenth Amendment by conducting an unreasonable search of the sort that would violate the Fourth Amendment if conducted by the federal government.&quot; Courts will say &quot;the Fourth Amendment, made applicable to the States through the Fourteenth.&quot; But the point is that the Fourth Amendment itself is not applicable to anyone except the federal government. The Fourteenth Amendment, by its terms, only restricts the states. The Fourth Amendment only restricts the federal government. With rare exceptions, neither applies to private entities.
Edits added below to outline Florida's laws based on OP's comment Jurisdiction does matter but here is a general answer regarding "stand your ground" laws. States that have so-called "stand your ground laws" each have their own language concerning the law. "Stand your ground laws" are often misunderstood but, generally, just mean that a person has no duty to retreat when using deadly physical force for purposes of self-defense or the defense of others. Your examples are more akin to "castle doctrine" laws which I touch on below. Note that all of these laws vary by jurisdiction. I've provided partial examples from Arizona, New York and California. Using deadly physical force for purposes of self-defense or defense of others is complex law and even a complete example from any particular jurisdiction will not be able to cover all circumstances. Each case will be determined by a judge or jury based on the facts of that particular case. Arizona's "stand your ground" statute, as an example, states: B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. "Stand your ground" simply means that a person doesn't have to first attempt to retreat before resorting to the use of deadly force. Arizona's statute regarding justification for self-defense states (emphasis mine): A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: In response to verbal provocation alone; or To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. Note the phrase, "extent a reasonable person." This means that the actions of a person using deadly force will be measured against what a "reasonable person" would do in similar circumstances. Some states have a duty to retreat, particularly when in a public place, before using deadly force. New York, as an example, has a "duty to retreat" before using deadly force except in specific circumstances (emphasis mine): A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20. Castle Doctrine Laws typically refer to what one may do in their own home when it comes to the use of deadly force. Some states have extended the "castle doctrine" to include personal automobiles as well. California's "castle doctrine" statute, as an example, states that if one is in their own home and someone "unlawfully and forcibly" enters the home one can presume that the person in his or her residence "held a reasonable fear of imminent peril of death or great bodily injury": Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. In California's statute both the resident and the person using force to gain entry have to know or have reason to believe that an unlawful and forcible entry occurred. If a person simply entered an unlocked home then the resident would have to have some other reasonable reason to believe that they were in imminent peril of death or great bodily injury. Wikipedia has a reasonable entry on the adoption of "stand your ground" and "castle doctrine" statutes and gives a state-by-state breakdown of both. Note that these laws have seen a lot of change recently and any particular entry for a state may not be accurate. Florida's self-defense laws Florida's "Use or threatened use of force in defense of person" states: 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Florida outlines the cases where use, or threatened use, of force is justified. Notice that in the law Florida specifically states that the person threatened does not have a duty to retreat. Florida also specifically states that a person has a "right to stand his or her ground" if the person is in a place where he or she has a right to be and is not engaged in criminal activity. Florida statute also specifically outlines the right to use self-defense within one's home and vehicle. Florida has a "castle doctrine" similar to what was outlined above and similar in nature to New York's and California's laws: The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; Florida has a longer list of exemptions related to who may have used force to enter a home including ownership interest in the property or vehicle, children and grandchildren, the person who engaged defensive force was involved in criminal activity and law enforcement officers. Florida's Justifiable Use Of Force is chapter 776 discusses when force can be used. There was an attempt by the Florida legislature in 2019 to change the standard by which use of force could be justified from "reasonably believes" force is necessary to "a reasonably cautious and prudent person in the same circumstances would objectively believe" force was necessary. The bill was withdrawn in May, 2019.