Skip to comments.The Myth of the Second Amendment
Posted on 12/21/2002 2:30:44 PM PST by pabianice
"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."
Have you ever heard someone say gun control is a fine idea except that the Second Amendment prohibits it?
Its a popular sentiment. Fortunately, its not true.
The Second Amendment was never intended as a gun license for the entire American populace. As originally draftedand as consistently interpreted by the courts for more than a centurythe Amendment does not grant any blanket right to own a gun nor does it stand in the way of rational, effective gun control.
The idea of gun ownership as an American birthright is nothing more than a popular myth. Yet the controversy over gun control and the Second Amendment rages on.
As the nations oldest and most prominent defender of individual rights, the American Civil Liberties Union (ACLU) holds the U.S. Constitution and its Bill of Rights in the highest regard. To clear up many misconceptions, what follows are some basic questions and answers about the Second Amendment and gun control.
Q The Second Amendment says "the right of the people to keep and bear arms shall not be infringed." Doesnt it mean just that?
A There is more to the Second Amendment than just the last 14 words. Most of the debate on the Amendment has focused on its final phrase and entirely ignores the first phrase: "A well regulated Militia, being necessary to the security of a free State . . ." And to dissect the Amendment is to destroy its context. While some scholars have suggested that the Amendment gives individuals the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date. However, the vast majority of constitutional experts agree that the right to keep and bear arms was intended to apply only to members of state-run, citizen militias.
Q If it doesnt guarantee the right to own a gun, why was the Second Amendment included in the Bill of Rights?
A When James Madison proposed the Bill of Rights in the late 1780s, people were still suspicious of any centralized federal government. Just 10 years earlier, the British army been an occupying force in Colonial Americaenforcing arbitrary laws decreed from afar. After the Revolutionary War, the states insisted on the constitutional right to defend themselves in case the fledgling U.S. government became tyrannical like the British Crown. The states demanded the right to keep an armed "militia" a form of insurance.
Q What exactly is "a well regulated militia?"
A Militias in 1792 consisted of part-time citizen-soldiers organized by individual states. Its members were civilians who kept arms, ammunition and other military equipment in their houses and barnsthere was no other way to muster a militia with sufficient speed. Over time, however, the state militias failed to develop as originally anticipated. States found it difficult to organize and finance their militias and, by the mid-1800s, they had effectively ceased to exist. Beginning in 1903, Congress began to pass legislation that would eventually transform state militias into what is now the National Guard. Today, the National Guardand Army Reserveare scarcely recognizable as descendants of militias of the 1790s. The National Guard and Reserve forces, in fact, do not permit personnel to store military weapons at home. And many of todays weaponstanks, armored personnel carriers, airplanes and the likehardly lend themselves to use by individuals.
Q Does the Second Amendment in any way guarantee gun rights to individuals?
A No. The weight of historical and legal scholarship clearly shows that the Second Amendment was intended to guarantee that states could maintain armed forces to resist the federal government. Most scholars overwhelmingly concur that the Second Amendment was never intended to guarantee gun ownership rights for individual personal use. Small arms ownership was common when the Bill of Rights was adopted, with many people owning single-shot firearms for hunting in what was then an overwhelmingly rural nation.
Q Does the Second Amendment authorize Americans to possess and own any firearms they feel they may need?
A Clearly, no. The original intent of the Second Amendment was to protect the right of states to maintain state militias. Private gun ownership that is not necessary to the maintenance of militia is not protected by the Second Amendment.
Q Does the Second Amendment allow government to limiteven prohibitownership of guns by individuals?
A Yes. Federal, state and local governments can all regulate guns without violating the Second Amendment. State authorities have considerable powers to regulate guns. The federal government can also regulate firearm ownership, although some scholars believe that the federal power may not be as extensive as that of an individual state. California, for example, has limited the ability of local governments to regulate firearms. While the state has kept its broad regulatory power, cities and counties can only prohibit guns from being carried in public places.
Q How have the courtsparticularly the U.S. Supreme Courtinterpreted the Second Amendment?
A The Supreme Court has flatly held that the individuals right to keep and bear arms "is not a right granted by the Constitution." In the four cases in which the high court has addressed the issue, it has consistently held that the Second Amendment does not confer a blanket right of individual gun ownership. The most important Supreme Court Second Amendment case, U.S. v. Miller, was decided in 1939. It involved two men who illegally shipped a sawed-off shotgun from Oklahoma to Arkansas, then claimed the Second Amendment prohibited the federal government from prosecuting them. The court emphatically disagreed, ruling that the Second Amendment had the "obvious purpose" of creating state militias, not of authorizing individual gun ownership. In two earlier rulings in 1876 and 1886, the Supreme Court held that the Second Amendment affected only the federal governments power to regulate gun ownership and had no effect on state gun control powers. Those cases, Presser v. U.S. and U.S. v. Cruikshank, formed the basis for the continuing legal decisions that the Second Amendment is not an impediment to rational gun control. In another case that the Supreme Court declined to review, a federal appeals court in Illinois ruled in 1983 that the Second Amendment could not prevent a municipal government from banning handgun possession. In the case, Quilici v. Village of Morton Grove, the appeals court held that contemporary handguns couldnt be considered as weapons relevant to a collective militia.
Q The National Rifle Association (NRA) says the Second Amendment guarantees our right to keep and bear arms. Has the NRA got it wrong?
A Like any powerful special interest, the NRA works to secure its financial well being. It insists on a view of the Second Amendment that defies virtually all court decisions and contradicts findings of most legal scholars. In so doing, the NRA actively perpetuates a seemingly endless cycle of gun-related fatalities. The NRA intimidates politicians because it is very well financed and, like any wealthy single-issue special interest, can muster considerable pressure and scare tactics against legislators who oppose it. For decades, the NRA has effectively promulgated its message. Other voices have recently begun to be heard, however, including the public health community, civil rights and civil liberties organizations and groups committed to womens, childrens and family rights. The NRA implies that the Bill of Rights forces us to accept unlimited gun ownership and tolerate the human tragedies that guns cause in our society. That simply isnt true.
Q What are the Second Amendment positions of the American Civil Liberties Union and the ACLU of Massachusetts?
A For decades, both the national ACLU and its Massachsetts affiliates have agreed the Second Amendment guarantees only the rights of states to maintain militias. The national ACLU has urged caution over gun control laws that, though well intended, might infringe on other civil liberties. The ACLU of Massachusetts believes effective gun controlespecially of handguns and assault weaponsis essential to curbing the escalating violence in our society.
As many still are.
Can anyone see the contradiction between the Constitution's actual text with that of the text from the ACLU?!
The ACLU lives in a different world. In their world, freedom of religion should NEVER be permitted in public-owned places, and citizens should NEVER be permitted to defend themselves, hunt, or form militias to prevent a centralized government from becoming too powerful.
In their world, they call such prohibitions "freedom".
They do not live in our world, however, because that's not freedom.
The ACLU was founded by Communists, financed by the Soviet Union, and continues to attract and recruit Communists simply because its quaint jingoism of "freedom" is so useful at tricking ordinary Americans into supporting actions that will eventually harm America.
"The [Arab countries'] governments ... hesitated, at least until the most recent times, to impose their will on the people in matters that the latter opposed. For example, the Iraqi government was unable to carry out a program in 1932 because the people had no less than 100,000 rifles as against the 15,000 owned by the government." (And a ready willingness to use them, I might add...)
The "first phrase," as it is referred to here, is a preamble to the 2nd Amendment - just as "We the People ... in order to provide for the common defense, promote the general Welfare ...," is a preamble to the Constitution itself. But this Preamble has long been held to "convey no law." So why should the preamble to the 2nd amendment convey law?
And if there were no 2nd Amendment at all? Which part of the Constitution grants the Federal Government any power concerning the ownership of any firearm by any citizen?
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
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.
...there is not enough political will to accomplish impeachment. It is not the purpose of this article to prognosticate on the possibilities of successfully impeaching one or more federal judges or justices. Rather, it is the purpose of this article to demonstrate that impeachment is constitutionally justifiable in every instance of judicial tyranny and that there are dire spiritual consequences to leaving covenant-breakers in office. Under those assumptions, this article advocates pursuing impeachment, whatever the probability of eventual success may be.
....It may be helpful to remind elected representatives of Gerald Ford's famous comments on the floor of the House during his drive to impeach Supreme Court Justice William Douglas:
What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.
...To put the proper bounds on Ford's statement one should consider the remarks made before the American Bar Association by William Taft, the only man to serve the United States as both President and Chief Justice of the Supreme Court:
Under the authoritative construction by the highest court of impeachment, the Senate of the United States, a high misdemeanor for which a judge may be removed is misconduct involving bad faith or wantoness [sic] or recklessness in his judicial actions, or in the use of his official influence for ulterior purposes. By the liberal interpretation of the term "high misdemeanor" which the Senate has given there is now no difficulty in securing the removal of a judge for any reason that shows him unfit.
....There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don't think they can obtain the final goal of conviction.
The 9th Circuit Court of Appeals (the same ultraliberal federal panel that recently ruled against "under God" in the Pledge of Allegiance) has released a 70-page discourse supporting those who say the amendment conveys only a collective right for states, not for individuals.
"All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans."
"We conclude that the phrase 'bear arms' refers generally to the carrying or wearing of arms. . . [The] argument that 'bear arms' was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected."
"We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training."
The Founders left gun control under the exclusive jurisdiction of the state. They felt it was extremely dangerous to allow the federal government to "infringe" on the right to bear arms even in the slightest degree.
The Founders said the basic reason for creating a government is to protect the inalienable rights of the people. The government is to provide "liberty under law," which means that no law should be passed unless it is specifically designed to protect the freedom, liberty. and well-being of the people.
Government is "force" which Washington compared to "fire" and said government is a "dangerous servant" and a "fearful master." Power should be dispersed among the people where they can keep it under control.
The Founders warned that if the vertical separation of power should ever break down so that all power began to be concentrated in Washington, there would be a severely arrogant abuse of the people by government officials. They also said that if the legislative executive and judicial departments failed to act as a check on each other, there would be tyranny and the people would lose their freedom. For more than one full generation this is what has been happening.
"Judicial legislation" occurs when the Supreme Court creates a new law by pretending to interpret an old one. In the Federalist Papers the Founders specifically warned against this type of arrogance by the Supreme Court.
The Founders made it very clear that the Supreme Court would be violating its assignment if it substituted its own opinions for that of the Founders. Until recently it has always been an established principle that the Constitution must be interpreted the way the Founders intended it and not according to the whims or caprice of modern justices.
The Nutty Ninth? From the Ninth Circuit Court of Appeals - the same federal appellate court that said the Pledge of Allegiance is unconstitutional - comes another nutty ruling that says the Second Amendment does not protect an individual right to bear arms. Incredibly, the ruling cites "the historical record" to defend that view, which makes about as much sense as Saddam Hussein citing UN resolutions to prove he's done nothing wrong.
9th (Short) Circut Court The 9th Circuit IS the most overturned court in the country. Those Bay Area limousine liberals maintain their politically correct heads SO far in rectal defilade it would require major surgery to extricate them.
Pete Shields, founder of Handgun Control, Inc., said, "We'll take one step at a time, and the first is necessarily given the political realities very modest. We'll have to start working again to strengthen the law, and then again to strengthen the next law and again and again. Our ultimate goal, total control of handguns, is going to take time. The first problem is to slow down production and sales. Next is to get registration. The final problem is to make possession of all handguns and ammunition (with a few exceptions) totally illegal."
Judge Reinhardt's Incredibly Ignorant Decision About the Second Amendment I could go on at great length on the many errors contained in Reinhardt's decision. I can see why the 9th Circus Court of Appeals gets overturned so much.
Is Reinhardt really this unaware of the history of our Constitution, and the division of govermental powers? No wonder he can't seem to write an sensible decision about the Second Amendment.
That Pledge of Allegiance Dispute
The Ninth Circus Court of Appeals continues to demonstrate why it is not only the most overturned circuit, but so often overturned 9-0 by the U.S. Supreme Court--showing that the problems of Ninth Circus judges isn't just that they are liberal--or they would be getting at least a few 5-4 or 7-2 decisions on the overturns. The decision (thanks to How Appealing! for the pointer) makes the claim:
Ready, Fire, Aim: The Ninth Circuit misses its mark, the Second Amendment Rarely have 27 words written out in a plain sentence caused so much confusion amongst seemingly intelligent people. But the Second Amendment has long baffled gun-control advocates, university professors, liberal judges and more than a few opportunistic politicians.
A federal appeals court in San Francisco on Thursday found that individual citizens do not have a constitutional right to own a firearm, cutting to the core of the modern debate over gun control and repudiating the gun lobby's most cherished legal argument.
The opinion is starkly at odds with a federal appeals court ruling in New Orleans last year that the 211-year-old amendment does give individuals the right to bear arms. For that reason, it could give the U.S. Supreme Court its first opportunity in decades to clarify what has long been an unsettled question in constitutional law.
The 3-0 decision, which drew immediate and harsh criticism from the National Rifle Association and other gun groups, also conflicts with the Bush administration, which last year attracted widespread attention when Attorney General John Ashcroft took a public position that the Second Amendment gives individuals the right to own a gun.
Reinhardt, a 1980 appointee of President Carter, is widely considered the court's most liberal judge. He was joined in the gun ruling by Judge Raymond Fisher, a Clinton appointee. A third judge agreed with the outcome of the case, but did not join in the Second Amendment reasoning. The 9th Circuit reached a similar but narrower conclusion in a gun case six years ago, but Reinhardt, citing the 5th Circuit's decision in New Orleans and the ``robust constitutional debate'' over the issue now taking place, issued an 80-page ruling that one gun control group called the most definitive to date on the intent of the right-to-bear-arms language.
The opinion was issued by a three-judge panel, which means plaintiffs can ask for an 11-judge panel of the same court to review the decision before it would be considered by the U.S. Supreme Court.
Thursday's ruling stems from a challenge to 1999 amendments to California's 1989 law banning 75 types of high-powered weapons with rapid-fire capabilities. The law, which has been upheld by the California Supreme Court, was passed in response to a gunman's attack on a Stockton school yard that left five children dead and dozens wounded.
The 9th Circuit establishes law for nine western states, including California
"The Court also ignored several U.S. Supreme Court decisions which have adopted the individual rights view," Pratt noted, "including decisions ranging from before the Civil War to others as recent as the U.S. v. Verdugo-Urquidez case in 1991. In the 36 times the Supreme Court has discussed the 2nd Amendment, it has almost always treated firearms as an individual right.
"The Court is not the only federal branch of government to treat the Second Amendment as protecting the rights of individuals. The Fourteenth Amendment was designed to overturn the Jim Crow laws which were backdoor attempts to re-enslave the blacks.
"Opponents in Congress and the state legislatures objected to the Fourteenth Amendment in part because the measure would subject the states to the Second Amendment, thus allowing blacks to be armed. The sponsors of the amendment met these objections with a forceful affirmation to the effect that: 'That's what we want to achieve.'"
"The Court cited uncritically the California legislature's finding that the banned guns were being prohibited because of their use in crime," Pratt said. "Truth be told, these firearms are used to commit fewer murders than are hands and feet. This has been the case for years -- even before the ban was enacted.
"Hopefully the U.S. Supreme Court will keep with its own precedents and throw the Ninth Circuit's rewrite of the Constitution into the wastebasket where it belongs." Pratt concluded.
Citation: The case in question is Silveira v. Lockyer, No. 01-15098, December 5, 2002.
The Ninth Circuit has always been a radical, left-leaning court. A recent survey showed that 80%-90% of the Ninth Circuits decisions are reversed by the U.S. Supreme Court. In one recent term, the Supreme Court reversed 24 of the Ninth Circuits decisions, and 16 of those decision were reversed by a 9-0 opinion by the United States Supreme Court. Its hard to find the United States Supreme Court unanimously agreeing on anything, but one thing it has agreed on is that the Ninth Circuit is in left field.
It is time for Congress to take action and impeach the two judges on this Federal Court. They will only act if we all get involved and let them know our outrage. I am asking you to sign this petition and forward it to all your friends. You may not be able to go overseas and fight for our freedoms, but you can take a stand by signing this petition.
One of the two judges in the majority, Stephen Reinhardt, is a holdover from the liberal judges appointed by President Carter. This judge is even left of the Ninth Circuit Court. Judge Reinhardt once issued an opinion that the United States Constitution guarantees the right to assisted suicide. This decision was overruled. During one term of the Supreme Court, this same judge was unanimously reversed 5 separate times by the High Court on 5 separate cases. Obviously a judge like this does not belong on a Federal Court.
This petition will immediately be forwarded to all 535 members of the U.S. Congress. Those members have the authority to remove these judges. This petition will also be sent to President George W. Bush.
I request that you begin an Impeachment Investigation to Remove Federal Judges Alfred T. Goodwin and Stephen Reinhardt for ABUSE of Our Laws and Our Society, Our Constitution, Our 1st Amendment granting Freedom of Religion and Freedom of Speech, our 10th Amendment granting States Rights, Our Rights of Intellectual Freedom to Recite our Pledge of Allegiance and for Overextending the Role of the Judiciary into the Role of our Legislature, for Judicial Usurpation of our Laws and the Censoring of Our History.
According to Article III of our Constitution judges may be impeached and removed for lack of good behavior. We, the undersigned, believe the ruling that "Under God" in our lawful Pledge of Allegiance to our beloved country is unconstitutional is unpatriotic, illegal, showing improper behavior and lack of knowledge or respect for our Constitution and our historical heritage.
I am alarmed and outraged at the tyrannical action taken by two of the judges from the Ninth Circuit Court in banning our Pledge of Allegiance! Please heed the voice of the people on this. We must take action to defend the heritage, the faith, and the freedoms of this great nation by IMPEACHING judges Alfred T. Goodwin and Stephen Reinhardt. They have violated the Constitution by ignoring the will of the people. The framers of our Constitution intended checks and balances to keep freedom alive in this country. Sadly, the judicial system has remained unchecked far too long. I feel that IMPEACHMENT is the appropriate action against these judges who have violated our trust and their Constitutional role. If we do not act, the integrity of our democratic system is at stake and judges will continue to legislate their personal agendas from the bench. Please do everything in you power to start impeachment proceeding on these judges. It is a critical move for the future of our nation!
What a pathetic non sequitor. Like AAA perpetuates drunk driving fatalities.
Gun Owners of America give Bill Frist a "D" rating.
So I guess that GOP "leadership" doesn't have any problems with this article either.
Nice try. Except that the Constitution doesn't grant rights. It's sole purpose is to define and limit the powers of the government. Yes, even the Bill of Rights is a list of thing the government absolutely cannot do.
I am hoping the influence of Bob Barr will be positive as to their position on the Second--
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