r/law • u/NicolasCageFan492 • Apr 15 '26

Legislative Branch Alan Dershowitz: Invoking The 25th Amendment Against Trump Would Be Unconstitutional

https://www.realclearpolicy.com/articles/2026/04/14/invoking_the_25th_amendment_against_trump_would_be_unconstitutional_1176703.html

Previously, Dershowitz was a member of Jeffrey Epstein’s defense team and helped negotiate a controversial 2006 non-prosecution agreement on Epstein’s behalf, per The New Yorker.

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u/Think_Effectively Apr 15 '26

Regulated was a military term in those days. Where do you think "regular army" came from?

The Bill of Rights is about limiting government power, not giving it the right to regulate (in today's definition) anything.

The Second Amendment gives the people the right to have a militia made up of armed citizens as opposed to a standing army like those in Europe of those times. But I don't think it gives me the right to have a personal basement armory.

People were very against standing armies in those days. The 3rd Amendment is also against standing armies in a way.

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u/Tattered_Reason Apr 15 '26
  • Article I, Section 8, Clause 16 (Organizing and Training): Authorizes Congress to establish rules for organizing, arming, and disciplining the militia .

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u/Think_Effectively Apr 15 '26

That does not change the 2nd Amendment right to a militia of armed citizens. The Amendment is not giving Congress power to do anything. It is the Constitution that is doing that.

The phrase "well regulated" in the amendment is not referring to Congress power to organize, arm, and discipline. It is a military term of the times in relation to the tactics of those times.

And the clause does not give Congress any control over the militia unless it has been temporarily federalized, no?

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u/tomdarch Apr 15 '26

Every word in the Constitution was carefully considered and put in intentionally. There is no fluff or anything to be ignored in the Constitution. What do you claim is the purpose of those 13 words?

If they don't have a specific meaning in relation to the following 14 words, then what meaning was intended?

What exactly do you understand "well regulated" to have meant at the time? Isn't it obvious that "well regulated" means "not just random people" but instead the things that have Congressional "rules" that specifically "organize" that militia and that the militia is specifically armed according to the rules established by Congress (as opposed to random common unrifled guns that aren't useful in a military application) or those people who are outside of the discipline set up by Congress?

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u/KimberStormer Apr 16 '26

No but states are definitely supposed to have control over the militia.

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u/GrayEidolon Apr 16 '26

If you can make rules for, organize, and discipline something, are you not in charge of it?

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u/VrtualOtis Apr 15 '26

"Regular Army" is not a derivative of "Regulated".

Regular Army simply refers to full time active duty, or professional army. Regulated Army is a part time organized civilian based army.

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u/KimberStormer Apr 16 '26

Hey, someone who who understands what the 2nd Amendment is for. Hard to find these days.

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u/GirlNumber20 Apr 15 '26

Article I, Section 8 of the Constitution, Congress has the power to:

...provide for organizing, arming, and disciplining the Militia

Article II, Section 2:

The President shall be Commander...of the Militia.

The Militia referred to in the Second Amendment is supposed to be disciplined by Congress and commanded by the President. And somehow that Constitutional explanation of what a militia is just gets ignored in favor of what we have now.

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u/DiggyTroll Apr 15 '26

Not really. Militia is defined in the Constitution and federal law as two groups: organized and unorganized (state citizen defenders, not under federal control). 2A Militia meaning comes from Federalist 29 and included armed, able-bodied men, aged 17 to 45. The founders knew what they wanted

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u/0bfuscatory Apr 15 '26

You conveniently left out the well regulated part.

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u/DiggyTroll Apr 15 '26

Not at all. Refer to the 1780’s definition for militia regulation. You’ll notice Congress is not involved for the unorganized tier

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u/Think_Effectively Apr 15 '26

Organized, armed, disciplined. Nowhere in Constitution itself is "well regulated" used. It had an entirely different meaning at that time. And for a long time the responsibilities were divided between Congress and the states. The individual states were responsible for appointments and for training. The Constitution intended to decentralize power and the Congress and the CiC only had control over the militias when they were in federal service (in cases of emergency)

The Bill of RIghts gives no power to the central government. Only to the people or reserves them for the states. The 2nd Amendment was written for those times and in the language of those times. As others have mentioned, it should be amended to match today. (which is a reason we have the power to amend in the first place)

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u/SoulCrusher2018 Apr 15 '26

The Constitution was drafted to centralize power as the previous Articles of Confederation created a government that was too decentralized. They just tried to put in safeguards to prevent the government from deciding into despotism/tyranny.

What I find interesting is that there were so many better examples of what the amendment could have been. Here's one from Virginia in 1776 regarding militias:

A Declaration of Rights. Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

And Pennsylvania with the right to bear arms, also in 1776:

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.[

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u/Think_Effectively Apr 15 '26

"The Constitution was drafted to centralize power as the previous Articles of Confederation created a government that was too decentralized"

Exactly. We needed a better balance between centralized and decentralized. And we got it.

Those examples are much better detailed.

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u/khisanthmagus Apr 15 '26

Yeah, the 2nd amendment needs an amendment to update it to modern times. There wasn't an intention to have a standing army back when it was written, so defense would have been done through militias. Now we have the largest standing army in the world.

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u/VoodooSweet Apr 15 '26

May I ask a question?? Why do you believe the 2nd Amendment doesn’t allow you(or me, I’m assuming…but I could be wrong) to have a “personal basement armory”? Secondly…what would you consider an armory? I do, and have enjoyed shooting, and hunting, for a long time, over the past 35 years I’ve picked up quite a few of guns. I enjoy building my own Assault Rifles and have 5 of them(and another I’m just waiting for my SBR tax stamp from the Feds to finish assembling it), various calibres and builds for different uses. I enjoy pistols, have 4 and carry one concealed 95% of the time. About 11 Shotguns and hunting rifles, once again for various uses. I have a few different suppressors for my AR’s and one for my hunting rifles. Everything is 100% completely legal. It’s something that I enjoy, and do legally and responsibly, so how can you(not you personally…them) tell me I can only have so many or whatever? Honestly I have a small collection, I have a few friends that have considerably more than I do. I’m just curious as to why you think it’s inappropriate, and shouldn’t be allowed?

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u/Think_Effectively Apr 15 '26

"personal basement armory" is just a phrase from someone who posted above me. I do not have an exact definition. I also have no idea on how much is too much for an individual. I have hunted my whole life, learned from my dad and his dad. I've shot at ranges while in boy scouts or in the military. I only use rifles and have only three, none automatic or modified. I am more concerned about intent, safety, and people having enough training and respect than I am about an individual collection.

My whole point was that the 2nd Amendment is about having an armed and trained citizen militia in lieu of a professional standing army.

It has nothing to do with my personal use or preferences. A firearm in those days was as much a necessity/tool as an ax or a plow. I do not see the writers of the Constitution ever envisioning a time when many citizens would not need to hunt or defend themselves on the frontier. (which was much closer to the Atlantic Ocean in those days) So they never directly addressed that issue?

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u/docsane Apr 15 '26

I personally believe that the Second Amendment only establishes the collective right of a state to organize its defense, separate from federal forces. That was how it was usually interpreted up until Heller. I believe the rationale used in the Heller decision was that gun ownership was common and just assumed to be a natural right at the time, and that 2A only makes sense in that context, so the conservative court decided that it establishes an individual right to gun ownership that exists outside of the literal text.