My Take on the Second Amendment

constut1
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.

Background

At it’s simplest, the Constitution of the United States (COTUS) sets forth the rules under which our country, as a nation of sovereign states operate.

The founders, weary of war and just a bit (a lot) scared of tyranny wanted to ensure that their new country wouldn’t fall into the same practices from which they had just escaped. The COTUS and accompanying documents therefore, limits the powers of the government over the people.

Reading any part of the documents out of context can lead to many common misconceptions and misunderstandings. Only when taken as a whole does the true intent become clear.

The Bill of Rights was drafted so there wouldn’t be ANY misunderstanding about what the founders considered the most basic of all human rights.

Remember:

  • The Constitution and Bill of Rights DO NOT GRANT ANY RIGHTS
  • These documents do, however, ‘Recognize’ the Natural Rights of All Mankind.
  • They further go on to limit the powers of The Government to infringe on those rights.
  • The Government has No Inherent Rights, only the Powers Granted by the People and the Constitution.

For the gun-control issue there are a few critical items that have to be taken into consideration. Specifically, amendments 1, 2, 4, 9 and 10

Let’s start with Amendment 10

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Essentially this means that if a right is not specifically restricted elsewhere, it is presumed to exist. Nowhere in the documents is the right of an individual to own and possess firearms restricted.

There is no clause saying anything even vaguely limiting this right, or delegating control over this right to the government.

I’ll follow this up with Amendment 9

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In other words — just because we didn’t come right out and say you can do it, doesn’t mean you can’t.

This again points to the primary nature of the documents – that of restricting the powers of the government, not limiting the rights of the people.

Reader Note for Future Reference:

In this amendment it is clear that ‘the people’ equates to ‘the individual persons.’

Just a bit of the First Amendment

“… or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Reader Note for Future Reference:

In this amendment it is clear that ‘the people’ means “individual persons.”

How could anything but Individual Persons ‘Assemble?’

Now on to the one causing all of the controversy – The Second Amendment \

“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.”

Controversy:

Is this a right of individuals, or a collective right, enjoyed only by the ‘government’ militias?

Does ‘the people’ mean individual persons, or the people as a whole?

For this we can take a look at the Constitutional Trinity.

Essentially there are three entities involved in the nation.

  1. The Federal Government
  2. The States
  3. The People.

To get an idea what ‘the people’ means, examine Amendment 4

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Here it is apparent that “the people” is referring to individuals, their houses, papers, and effects.

Now for that militia part.

You can get a better idea of the meaning by re-writing this amendment and substituting something other than Militia and Arms.

A well regulated University, being necessary to the success of a free State, the right of the people to keep and read Books, shall not be infringed.

If the above amendment was in the Bill of Rights, few people would try to argue that only universities can have books. (The ones who would argue that would be, of course, the universities.)

Even if you took a collectivist stand on the second amendment, it would merely mean that the States have the power to establish their own militias, (the body of the people) but not an exclusive right to arms.

Since it does not restrict the individual right, that right is presumed to exist, as previously indicated by amendments 9 and 10.

 

Try This Exercise:

A well operating Press, being necessary to the freedom of the State, the right of the people to speak freely, shall not be infringed.

  • Would anyone other than the ‘media’ argue that the above would would restrict the individual’s right to free speech?
  • Would free speech requre a license?
  • Would government registration of public activists and journalists be required?

Reader Note for Future Reference:

When the COTUS Was Written, the phrase ‘Well Regulated’ meant ‘Well Operating,’ NOT Government controlled or sanctioned.

The Grammar

Among many strengths and skills exhibited by the founders, the proper use of legal grammar and punctuation was particularly important. Many a legal battle has been fought over misplaced commas, colons and semi-colons.

The Second Amendment is split by commas into four phrases, the last of which is a verbal phrase starting with the verb “shall”:

  1. A well regulated Militia,
  2. being necessary to the security of a free state,
  3. the right of the people to keep and bear Arms,
  4. shall not be infringed.

The first two phrases are related to each other. The fact that the third phrase is separated from the verbal phrase by a comma indicates that the verbal phrase has more than the third phrase as its subject.

The abbreviated grammatical construction actually renders the meaning of the Second Amendment as:

“Neither a well regulated Militia, being necessary to the security of a free state, nor the right of the people to keep and bear Arms shall be infringed.”

Constitutional lawyer Stephen Halbrook observes that the Amendment may be stated in the form of a hypothetical syllogism:

If (or, since) a well-regulated militia is necessary to the security of a free State; then the right of the people to keep and bear arms shall not be infringed.”

“If, for argument’s sake, a civilian ‘well-regulated militia’ is no longer ‘necessary to the preservation of a free State,’ it does not logically follow that ‘the right of the people to keep and bear arms’ may be now infringed. To so conclude would be to commit the fallacy of ‘denying the antecedent.’

In illustrating the fallacious logic entailed in denying the antecedent, an analogous but simpler syllogism may be used:

‘If it is raining, there are clouds.
It is not raining. Therefore, there are no clouds.’

The conclusion is obviously fallacious, for there may in fact be clouds even though it is not raining.”

What Does the Supreme Court Say?

Current Supreme Court case law defines the Second Amendment (second part) as protecting from infringement by the federal and state governments, the right of the individual to keep and to bear a weapon which is part of the ordinary military equipment or which use could contribute to the common defense.

This definition can be found in three court decisions. The first addresses how it applies to state governments, the first and second, how it applies to individuals, and the third the type of weapon defined by “Arms.”

  1. The Supreme Court in U.S. v. Planned Parenthood v Casey (120 L. Ed. 2d 674 (1992)), specifically bottom of left column and top of right column page 695, stated, “Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” “The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights.” “… rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution.”
  2. The Supreme Court in U.S. v. Verdugo-Urquidez (108 L. Ed. 2d 222 (1990)), specifically the bottom of the left column on page 226, indicated that “the term ‘the people,’ as used in the Constitution’s First, Second, Fourth, Ninth, and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with the United States to be considered part of that community”.
  3. The Supreme Court in U.S. v. Miller (83 L. Ed. 1207 (1939)) upheld the regulation of shotguns having a barrel of less than 18 inches in length on the basis that the court had no notice that such a weapon “was part of the ordinary military equipment or that its use could contribute to the common defense.”

On page 124 of the Love v. Peppersack decision, U.S. v. Miller (83 L. Ed. 1206 (1939)) is used to support the definition that the Second Amendment preserves a collective right v. an individual right.

But in U.S. v. Miller the term “collective right” appears nowhere,

there is no “collective right” concept, and there is no discussion or hint that “the people” in the Second Amendment means anything different than the use of “the people” in the other amendments.

To the contrary, the discussion within U.S. v. Miller (83 L. Ed. 1209 *[179 and following] (1939)) on the militia concept stresses individual ownership of arms:

a. “the Militia … civilians primarily, soldiers on occasion.”

b. “the Militia comprised all males physically capable of acting in concert for the common defense.”

c. “And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

d. In a militia, the character of the laborer, artificer, or tradesman, predominates over that of a soldier.”

e. “the militia system … implied the general obligation of all adult male inhabitants to possess arms.”

 

UPDATE: December, 2004

District of Columbia v. Heller was a case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for private use within the home in federal enclaves.

By a 5 to 4 decision, the Supreme Court upheld the federal appeals court ruling, striking down the D.C. gun law. Justice Antonin Scalia, writing for the majority, held, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. ”

The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states. It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self defense.

NEWS RELEASE

JUSTICE DEPT. CONCLUDES 2ND AMENDMENT ‘SECURES INDIVIDUAL RIGHT’

The Second Amendment Foundation (SAF) and Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) today hailed a report from the U.S. Department of Justice’s Office of Legal Counsel that concludes the Second Amendment “secures an individual right to keep and bear arms.”

The document details the exhaustive research by Assistant Attorneys General Steven G. Bradbury, Howard C. Nielson, Jr. and C. Kevin Marshall who studied the history of legislation and court cases to reach their conclusion. They note that, “our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views.”

“This report confirms what the gun rights community has known to be true for many years,” said SAF founder Alan M. Gottlieb.

“The right to keep and bear arms is a right to be enjoyed and exercised by every citizen. Henceforth, all Americans will know that the claim by anti-gunners that the Amendment only protects some mythical right of the states to form militias and National Guard units is an outright fraud.”

 

UPDATE: March, 2007

Individual Right

Second Amendment Again Determined to be an Individual Right
D.C. Gun Ban Ruled Unconstitutional!

Link to Court Decision Here!

Update: June 26, 2008

District of Columbia v. Heller was a case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for private use within the home in federal enclaves.

By a 5 to 4 decision, the Supreme Court upheld the federal appeals court ruling, striking down the D.C. gun law. Justice Antonin Scalia, writing for the majority, held, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. ”

The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states. It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self defense.

 

UPDATE: June 28, 2010

McDonald v. Chicago, was a decision of the Supreme Court of the United States on the issue of gun rights.

The Court held that the right of an individual to “keep and bear arms” protected by the Second Amendment to the United States Constitution is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

UPDATE: March 29, 2012

District Court Holds Second Amendment Applies Outside the Home, Strikes Down Ban on Gun Transportation During State of Emergency.

Bateman v. Perdue (E.D.N.C. Mar. 29, 2012) involves a North Carolina law that bans “transport[ing] or possess[ing] off [one's] own premises any dangerous weapon” when a state of emergency has been declared.

Due to natural disasters and severe weather, states of emergency are declared with some frequency in North Carolina. In 2010, for example, the Governor issued four statewide emergency declarations and one declaration covering a fifteen-county area. There were also at least six local states of emergency declared. All five of these 2010 states of emergency were in response to weather conditions, and the frequency of such declarations may stem from the fact that “[a] state of emergency must be declared in order to qualify for federal disaster assistance.”

The court concluded that:

  1. The right to keep and bear arms extends to carrying outside one’s property, for self-defense and for other reasons. The law interferes with the exercise of this right.
  2. The law also interferes with the exercise of people’s right to defend themselves in their homes, because it bars people from buying weapons and them transporting them to their homes.
  3. The law must therefore be considered under strict scrutiny, because it isn’t just limited to high-risk gun possessors, to particular kinds of guns, or particular manners or times of carrying guns, and because it interferes with getting guns even for home defense.
  4. The law fails strict scrutiny, because it “excessively intrudes upon plaintiffs’ Second Amendment rights by effectively banning them … from engaging in conduct that is at the core of the Second Amendment at a time when the need for self-defense may be at its very greatest” and therefore the law is not narrowly tailored to serve the government’s compelling interest in public safety.

 

Comments.

“There’s no problem when restricting our right to drive by requiring licensing of drivers and registration of cars. Why should guns be any different?”

Some say (and may actually be correct) that driving on publicly financed roads is not a right, it is a privilege granted by the ‘owners’ of those roads. You can tool around the back 40 on your farm all you want in un-registered vehicles, even without a license. When the vehicle hits a taxpayer funded highway, however, those taxpayers are allowing you to use a resource that they built and paid for.

If you possess a firearm, even on public land, you are not “using” a taxpayer-funded resource. The taxpayers (aka the Government, but it’s hard to validate) did not build the shooting ranges and they didn’t supply the gun or the ammunition. A firearm can be owned and used in any lawful manner without causing wear and tear on any public resource. Therefore, the government has no power to restrict ownership of firearms by law-abiding citizens.

One of the conditions under which some of your basic, core rights can be ‘legally’ restricted, however, is when you commit a crime. You can lose your freedom, your right to vote, and your right to possess a firearm.

As punishment for a crime, a person’s freedom of movement, speech, owning a gun, choosing when and what to eat and more are, for obvious reasons, ‘suspended‘ while in jail or under sentence. (If they let you go then it wouldn’t be jail.)

Nowhere, however, does the Constitution grant the Government the authority to restrict a person’s core rights after their sentence has been served.

Convicted felons may not legally vote, or possess any type of firearm.

I certainly feel safer in the knowledge that Martha Stewart can never own a gun, don’t you?

It is interesting to note, however, the Constitution does not seem to grant the Government authority to do this. At a minimum, restricting a citizen’s right to vote, for any but the most extreme reasons, if at any at all, should never be tolerated.

BTW, there is a ‘procedure’ to get rights restored. Like the ‘Wall at the Border,’ however, the politicions (Your Representatives and Servants) voted for the idea, but never voted to fund it.

 

And Finally — the Preamble (to the Bill of Rights)

Today, a child can graduate without reading, much less comprehending this part of the Bill of Rights. The preamble, however, is one of the most critical parts of any document.

pre·am·ble A preliminary statement, especially the introduction to a formal document that serves to explain its purpose.

Please read the pramble carefully, with the rest of the founding documents in mind when you do so,

The Conventions of a number of the States, having at the time of their adopting the U.S. Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The meaning is not ambiguous. The purpose of the Bill of Rights, as clearly declared in the preamble, is to further define and restrict the powers of the Government.

The Bill of Rights’ does not, and was not intended in any way to place restrictions on ‘the people.’

Shall Not Be Infringed sounds pretty clear to me. Of course, just a few ‘sensible’ restrictions wouldn’t hurt, would they?

Try to impose just a few sensible restrictions on the First Amendment and see what you’ll get from the media.

 

Original Preamble to the Bill Of Rights

Congress of the United States,

begun and held at the City of New York,

on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution;

 

Note: The following text is a transcription of the first 10 amendments to the Constitution. These amendments were ratified December 15, 1791, and form what is known as the “Bill of Rights.”

 

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

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.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

Note: The capitalization and punctuation in this version are from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.


Leave a Reply

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>