Have you everr noticed the words, "well REGULATED" in the Second Amendment? Neither had I until I finally looked it up. The placement of the commas are interesting as well. Punctuation is really important, isn't it?
Clearly, the intent of the framers was to provide for a militia especially given we were up against the most powerful military in the world at the time, the British and we didn't have a military of our own. We also didn't have a police force at the time either.
And most importantly, we didn't have the advancements in weaponary and ammo that we have today. Nor could the average citizen get on the internets and just buy whatever they want to stock their own personal arsenal.
My how times have changed....
Not trying to argue we should repeal the 2nd amendment nor do I believe we should ban all guns. The 2nd amendment is well defended by the Gun Lobby but just like the rest of the amendments (free speech, unreasonable searches, etc...) are all subject to REASONABLE REGULATION.
The gun lobby has been extremely effective in using the 2nd Amendment as a rallying cry that socialists liberals are trying take our guns away and ignore the constitution. What a farce!
There's all kinds of information out there about what the founders did and did not intend so feel free to read up at your leisure. I've posted some intereting reads below from both sides.
What is plainly clear is that the framers had no idea we would become the world power we are today and have the biggest, bestest military in the world. They had no idea our weaponary would have advanced to where it is today. They had no idea crazy, mass murderers would use this advanced weaponary to terrorize the people of the world.
Most importantly...the Founding Fathers had no idea the 4th and most powerful branch of government would emerge and inject their own personal agendas into our society and public policy: Lobbyist.
If we truly want to protect our freedoms and our government, we HAVE to stand up to the Gun Lobby and demand for reform.
Off my Soap Box now...I'm no constitutional scholar but I do have common sense that tells me there is always a solution. It's not just about smart gun laws. Comprehensive reform is needed that includes smart regulations, education and support / resources for the mentally ill and unstable for starters...
Here is an interesting read from the
DailyKos:
"The recent act of self-defense by a teen widow in
shooting an home intruder has been somewhat of a rallying cry among the right which has made them reaffirm what can only be called the "second amendment myth."
Now I'm not for banning all guns and restricting it to the military but I am against holding myths and misinformation. Unfortunately the second amendment myth, like the myth that "corporations are people" and "money is speech" has gained legitimacy in recent years with supreme court cases reaffirming the myth both to liberals and conservatives and makes it tricky to discuss.
However, the idea that there is a constitutional right to own a material object that happens to be a gun, is a myth.
The Founders and the Second Amendment
Lets begin with the second amendment says in Full:
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.
Despite the popular sentiment that the founders advocated unabridged gun freedom very little evidence shows this.
Save for a few vague quotes about taking arms (some of which fake quotes floating around the internet) the closest the founders discussed about the second amendment were militias with explicit descriptions in the Federalist papers of what a militia is and how large it should be among other things. In
Federalist Paper #29 it said the Union has the power
"to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."
(All caps original)
Other interpretations by Founders showed that they believed that state organized militias should be created in the event of a tyrannical federal government.
The Early Supreme Court Cases
In the earliest second amendment cases, the issues often dealt with militias and to what extent people were authorized be in a militia.
Then in 1939 the landmark decision came in
United States v. Miller which drew the first distinction in the issue.
As a case that dealt with challenges to a law prohibiting certain firearms it came with two big conclusions:
- The Second Amendment only protects use of weapons in an organized militia.
- The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
- it thus determined:
The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.
Or put simply, if it's not about militias it's not about the Second Amendment.
This also had a huge precedent, for roughly 60 years afterwards lower courts rejected almost all claims of abuse of second amendment rights from gun owners since it did not relate to militias. As Uviller and Merkel subtitle it in their book, "The Second Amendment Fell Silent."
Gun Activism In The Courts
Then after about 200 years of legal precedent came the Roberts Court. It suddenly overturned almost all of US history in favor of gun rights advocates with
District of Columbia v. Heller in 2008 and subsequent cases.
Edit: Someone brought up that Scalia writing the majority decision, went so far as to say that the amendment had prefatory and operative clauses, the prefatory being "A well regulated Militia, being necessary to the security of a free State." That means half of the amendment is completely useless "
window dressing" added for rhetoric. Imagine if someone argued the First Amendment's "Congress shall make no law respecting an establishment of religion" was just a meaningless prefatory phrase.
It was so blatant that in a
scathing criticism, conservative judge J. Harvie Wilkinson III compared it to
Roe v. Wade and said it "represents a triumph for conservative lawyers" as "Heller encourages
Americans to do what conservative jurists warned for years they should not do: by-pass the ballot and seek to press their political agenda in the courts."
With
Heller, like other Roberts Decisions, came the evaporation of centuries of cases and decades of Supreme court precedent that roughly reflected an originalist observation in the Constitution.
Put simply, the Founding Founders nor most people thought the Constitution guarantees a right to a material object, let alone a gun."
Here is a more deliberate interpretation that up until 2008 was shared by the Supreme Court:
"Myth: The Second Amendment guarantees the individual right to own a gun.
Fact: The Supreme Court has always interpreted this as a state's militia's right, not an individual's.
Summary Over the centuries, the Supreme Court has
always ruled that the 2nd Amendment protects the states' militia's rights to bear arms, and that this protection does not extend to individuals. In fact, legal scholars consider the issue "settled law." For this reason, the gun lobby does not fight for its perceived constitutional right to keep and bear arms before the Supreme Court, but in Congress. Interestingly, even interpreting an individual right in the 2nd Amendment presents the gun lobby with some thorny problems, like the right to keep and bear nuclear weapons.
Argument The Second Amendment 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."
Pro-gun advocates claim that this amendment guarantees their individual right to own a gun, and that gun control laws are therefore a violation of their constitutional rights. In fact, the term "violation of our Second Amendment rights" has become a battle cry in gun lobbyist literature, repeated everywhere in their editorials and essays.
However, this raises a fascinating observation. If gun control laws are so obviously a violation of the Second Amendment, then why doesn't the National Rifle Association challenge them on constitutional grounds before the Supreme Court? The answer is that they know they face certain defeat, for reasons we shall explore below. Consequently, the NRA has abandoned all hope in the courts.
Instead, the NRA has chosen to lobby Congress to prevent gun control legislation, and has become in fact one of the most powerful lobbies on Capital Hill. This is a supreme and exquisite irony, given the conservative and libertarian's love of constitutions and hatred of democracy. But, at any rate, the NRA is fighting for its perceived constitutional rights on Capital Hill, by bribing our legislators with millions of dollars in campaign contributions.
The reason is because the Supreme Court -- this nation's final arbiter on the interpretation of the Constitution -- has
always ruled that the Second Amendment does not extend the right to keep and bear arms to
individuals, but to the
well-regulated militias mentioned in the first part of the amendment. Specifically, these are militias that are regulated by the federal and state governments. Article I, Section 8 authorizes Congress:
"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress."
The Founders were passionately opposed to standing peacetime armies -- in fact, Thomas Jefferson listed it as one of their grievances against the British Crown in the Declaration of Independence. Intent on eliminating this evil, they created a system whereby citizens kept their arms at home and could be called by their state militias at a moment's notice. These militias eventually became the states' National Guard, and the courts have always interpreted them that way.
In 1886, the Supreme Court ruled in
Presser vs. Illinois that the Second Amendment only prevents the federal government from interfering with a state's ability to maintain a militia, and does nothing to limit the states' ability to regulate firearms. Which means that states can regulate, control and even ban firearms if they so desire!
Even so, this left a question about how much the
federal government can limit a citizen's right to own a gun. In 1939, the Supreme Court addressed this issue in
United States vs. Miller. Here, the Court refused to strike down a law prohibiting the interstate commerce of a sawed-off shotgun on the basis of the Second Amendment. Rejecting the argument that the shotgun had "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Court held that the Second Amendment "must be interpreted and applied" only in the context of safeguarding the continuation and effectiveness of the state militias.
In other words, the federal government is free to regulate and even ban guns so long as it does not interfere with the state's ability to run a militia. Since then, both the Supreme and lesser courts have consistently interpreted the right to bear arms as a state's right, not an individual's right. At times they have even expressed exasperation with some gun advocates' misinterpretation of the Second Amendment.
In
United States v. Warin, the Sixth Circuit Court of Appeals in 1976 upheld the conviction of an illegal gun-owner who argued that his Second Amendment rights had been violated. In pointed language, the court wrote: "It would unduly extend this opinion to attempt to deal with every argument made by defendant...all of which are based on the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the states."
In 1972 Justice William O. Douglas wrote: "A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment....There is no reason why all pistols should not be barred to everyone except the police."
Gun advocates have bitterly decried the "activist courts" that have supposedly changed the plain meaning of the constitution. But over 100 years of courts have interpreted a states'-rights meaning, and so has a broad body of constitutional scholars. Gun advocates simply have a different "plain meaning" of the constitution than everyone else, one that coincidentally legalizes their desired goal of owning weapons.
The only apparent recourse for gun advocates now is to reject the system of judicial review that has led to a perfect record of court defeats. But the alternative is even worse: trusting Congress to pass laws that respect our constitutional rights. On all other issues but gun ownership, the idea is anathema to conservatives and libertarians.
But even accepting the gun lobby's interpretation of the Second Amendment does not spare the gun owner from gun control. The amendment simply states that the people have a right "to keep and bear" arms. It says absolutely nothing about regulating them for safety, design or caliber. The gun lobby argues that the lack of of such language means that individuals are free to own any arms they please, and government cannot use constitutional silence to infer permission to regulate them. But this isn't true; look at the First Amendment. It simply says that "congress shall make no law... abridging the freedom of speech" -- yet the government regulates countless forms of speech -- slander, malicious falsehoods, fraud, insider trading, etc. -- and these regulations are upheld by the Supreme Court. The same principle applies to the regulation of guns.
This point becomes especially important when considering the regulation of arms by
category. For example: do the people have a right to own nuclear weapons? (Pro-gun advocates contemptuously call this the "nuclear straw-man argument," yet they have not even come close to providing a satisfactory answer to it.) How about chemical and biological weapons? Tanks? Battleships? Bombers? In a society where people get drunk, angry, jealous, self-destructive and mentally ill, you certainly wouldn't want the unregulated sale of nuclear weapons on the market. Prohibition of such arms seems like the best thing to do, but, strictly speaking, that too would be a violation of the Second Amendment.
Some pro-gun advocates admit that a literalist interpretation allows the right to keep and bear
all arms, including nuclear weapons, and that this is surely archaic. Certainly the Founders could not have foreseen or intended this situation. However, pro-gun advocates claim the correct reaction of modern America should be to amend the constitution to exclude ownership of nuclear weapons; creatively interpreting the constitution is the wrong way.
This is a curious argument, for a couple of reasons. First, the entire rationale of an individual right to keep and bear arms is to defend against a tyrannical government. But to surrender an advantage as overwhelming as nuclear weapons and smart weaponry to the government is irrational. Given the fanaticism of the gun lobby to protect themselves from government tyranny, this meek acquiescence towards weapons of terrible destruction is more than little strange, and begs explanation. It suggests that, down deep, the gun lobby is not really serious about its claim that government threatens them. (How could they be, in a democracy with high-speed, mass communication?) What is more likely is that they feel the need to empower themselves, and firearms are sufficient to fulfill that need.
The argument is also strange because it concedes a point to gun control; namely, that there are some weapons so deadly that they should not be allowed in society. That is exactly what gun-control advocates have been arguing, and you don't need nuclear weapons to achieve the feared results; the U.S. already has the high murder statistics to prove it with handguns alone.
The argument is also strange because the gun lobby fervently hopes to avoid public mobilization on a constitutional amendment limiting the right to keep and bear arms. A huge majority of Americans favor stricter gun control laws; and as long as they're excluding nuclear weapons they might as well throw in assault weapons and Saturday Night Specials.
But ultimately, calling for a constitutional amendment banning the ownership of nuclear weapons is moot. Individuals do not even have a guaranteed right to keep and bear firearms, much less modern military weapons. To overcome the Supreme Court on this issue, the gun lobby would have to promote fundamental changes in our political structure that would surely be disimprovements."
"The Myth of the Second Amendment
It’s time to clear up a few popular misconceptions about the second amendment held by pro and anti gunners alike. These misconceptions cloud the true intent of the most important of all the amendments that constitute the Bill of Rights. Without the second amendment protections to keep and bear arms, the People would be unable to defend any of their other rights. We then place ourselves in a position of having our rights granted to us under some form of benevolence.
These misconceptions will also ultimately lead to severe restrictions of this sacred right by allowing anti-rights groups to set the terms around which the debate is centered.
First, the second amendment was not designed to protect the rights of hunters.
Second, the second amendment was not designed to protect the rights of sportsmen.
And third, even though it is very important that everyone has the right to defend themselves and their loved ones, the second amendment was not designed to protect the individual.
Let’s examine the second amendment a little closer. For the record:
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.
… BEING NECESSARY TO THE SECURITY OF A FREE STATE, …
There is nothing that is ambiguous about that statement.
Our rights as gun owners are predicated on the fact that at some point in time it may become necessary to defend our freedom. Not with words and arguments. Not with protests and civil disobedience. Not through any legal recourse.
Our freedom will be defended with blood. With force. With the strength of our desire to be free. With our lives. With the lives of those we love. And with guns. There will be no other way.
I am not advocating revolution and the overthrow of our government - not yet anyway.
However …
Our freedom was bought and paid for with the blood of those who refused to live under tyranny. Our freedom has been defended by the blood of their sons. And their sons. And theirs. And one day it will be our duty to defend our freedom with our own blood. And the blood of our sons.
Where in the hell did we pick up the idea that there is no price to pay for freedom? That no sacrifice is necessary.
The framers of the Constitution, particularly the authors of the Bill of Rights recognized that we must be ever vigilant in the protection of our freedom. That at some point in time we may have to turn our own government back from a path that denies our freedom and destroys the very foundation that this country was built upon.
They recognized the inherent tyranny in all governments. That all governments
become oppressive.
As Aristotle stated, ‘Republics decline into democracies, and democracies degenerate into despotisms.’
And if there is any one lesson to be learned from history, that lesson is that history repeats itself, time after time after time.
An armed populace is the only insurance that we the People have in the maintenance of our freedom. It is only with our arms that the government will respect the will of the People to be free. It is only our arms that can inspire a healthy dose of fear in the government toward the People. And it is only our resolve to fight and defend our freedom that will keep our government from stripping away our rights and our freedom.
So do not perpetuate the myths surrounding the second amendment. The second
amendment was designed to allow the People to defend their freedom from any incursion. Particularly from their own government. For those that cherish their freedom, there can be no argument on this point.
Long live the republic."
