The Second Amendment Comes Before the Supreme Court: The Issues and the Arguments

The Heritage Foundation ^ | March 14, 2008 | Nelson Lund, Ph.D.

[EdReform]

The United States Supreme Court has decided only one significant case involving the Second Amendment, and that was almost 70 years ago. Next week, the Court will return to the issue when it hears arguments in District of Columbia v. Heller. This is a test case brought by a D.C. special police officer who carries a gun while on duty. Under D.C.'s extremely restrictive gun control laws, he is forbidden to keep a handgun, or an operable rifle or shotgun, in his home.

The U.S. Court of Appeals for the D.C. Circuit held that these laws violate the Second Amendment. The court concluded that handguns are lineal descendants of founding-era weapons and are still in common use today, so they may not be banned; the court also held that D.C.'s requirement that guns be stored in a mechanically disabled condition is unconstitutional because it prevents them from being used for self-defense.1 The Supreme Court is now reviewing that decision.

The parties presenting arguments next week offer three different interpretations of the meaning of the Second Amendment. D.C.'s argument--that the Second Amendment protects a right to arms only in service of a government-organized militia--does not stand up to historical analysis or textual scrutiny. Heller's position--that the Amendment establishes an individual right to keep ordinary weapons for self protection--is sound but not persuasively argued. And the Bush Administration's position--recognizing an individual right but leaving the government with some large and undefined power to curtail the right--is dangerously vague and legally weak.

Careful textual analysis, along with the relevant historical context, yields a remarkably clear, sensible, and workable answer to the question presented in this case. The Amendment protects an individual right to keep operable firearms for self-defense, which cannot be taken away by federal law...

[EdReform]

The subject of the 2nd Amendment is the right of the people. The right is identified as the right to keep and bear arms. The command contained in that sentence is that the right of the people shall not be infringed and the command is to the govm't. The idea that is given to govm't and refers to one of their bodies of armed forces is ridiculous on it's face.

Precisely. The intent of the amendment as was originally proposed:

James Madison's Speech to House of Representatives Proposing Bill of Rights

"... Fourthly. That in article 2nd, section 9, between clauses 3 and 4, be inserted these clauses, to wit...

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person..."

It's clear that:

1. The right of the people to keep and bear arms shall not be infringed;

2. a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Changing the order of 1 and 2 doesn't change their separate meanings. See: The Unabridged Second Amendment.

The Meaning of the Words in the Second Amendment

[Yosemitest]

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[djf]

I quoted the law to you.

Here it is, read it yourself.
http://www.constitution.org/mil/mil_act_1792.htm

It says what I said, not what you said.

There were plenty of natural born Americans at that time that were part of “the people” but were not members of “the militia”.

[spunkets]

That’s right, neither a clause, nor Madison’s full sentence alters the meaning of the command regarding the right and the identity of the people. To do so simply renders the govm’t as the only holder of right, and the Bill of Rights rendered as powers of govm’t.

[Ravenstar]

You are the one making inane statements. I see that you have no answer to post 96 therefore you must resort to extreme inane statements.

Ravenstar

[William Tell]

djf said: "Benjamin Franklin, who was already many years older than 45 at the time of the signing."

After reading through an article describing the authoring of the Bill of Rights, I noted nine names mentioned as contributors in the article. A net search revealed that seven of the nine were over 45.

It would be amazing to think that these aging heroes, who took up arms to resist government tyranny at the risk of their lives, their fortunes and their sacred honor, were writing a document one effect of which would be to disarm themselves.

[rbosque]

“No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government.” - Thomas Jefferson

“The said constitution shall never be construed to authorize congress to prevent the people of the United States who are peaceable citizens from keeping their own arms.” - Samuel Adams

“The great object is that every man be armed. Everyone who is able may have a gun.” - Patrick Henry

“Americans need never fear their government because of the advantage of being armed, which the Americans possess over the people of almost every other nation.” - James Madison

“To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.” - Richard Henry Lee Founding Father

“Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater … confidence than an armed man.” - Thomas Jefferson, quoting Cesare Beccaria in On Crimes and punishment (1764).

“Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property . . . Horrid mischief would ensue were the law-abiding deprived of the use of them.” - Thomas Paine, Thoughts on Defensive War (1775).

“No free man shall ever be debarred the use of arms.” Thomas Jefferson, Proposed Virginia Constitution (1776).

“The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any.band of regular troops.” - Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787).

“Arms in the hands of individual citizens may be used at individual discretion in private self-defense.” - John Adams, A Defense of the Constitutions of Government of the United States of America (1787-1788).

“Americans need not fear the federal government because they enjoy] the advantage of being armed, which you possess over the people of almost every other nation.” - James Madison, “The Federalist 46 (1788).

“A militia when properly formed are in fact the people themselves and include all men capable of bearing arms …To preserve liberty it is essential that the whole body of people always possess arms . . . “ - Richard Henry Lee, Additional Letters From the Federal Farmer 53 (1788).

“I ask, sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” -George Mason, during Virginia’s Convention to Ratify the Constitution (1788).

[21twelve]

Boy - you sure had to dig back in history to scrounge up some support for this whole “right of the people” thing. ;)

Let me add one: “Government is not reason, it is not eloquence - it is force! Like fire, it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.” G. Washington

[djf]

I’ve seen this theory floated before that “the people” were only the adult white males.
It is true that in most states, the only persons who could vote were adult, male landowners.
But to be a “citizen” meant more then than just to be enfranchised.
No one in their right mind would argue that the sons and daughters and wives of the founders weren’t “citizens”.

If somebody wants to argue, fine. But don’t be deliberately skewing the meaning of words. Don’t be conveniently leaving out relevant passages.
And I’ve seen it over and over. Give him a couple days, he’ll be back spewing his bilge on another thread.

BTW, I read the transcripts of today’s oral arguments. Based on the questions, it looks to me like it will be very, very, very difficult to rule in any other way. I suspect the ruling will be that it is a personal right, but subject to some kind of reasonableness standard. (insane folks can’t have guns, that sort of thing)

Because as the court said, Congress already has plenary power over the militia. It doesn’t need to disarm the people. And the founders KNEW what they wrote. They KNEW WHAT IT MEANT THEN. And it means the same today.

[robertpaulsen]

I read your post #96. In it, you said, "The people means all the people even if they are not members of the militia."

I'm asking you if you really mean that. I'm asking you if "the people" means men, women and small children, citizens, non-citizens and foreign visitors, the Indian tribes, prisoners, the mentally ill, and the insane, illegal aliens, felons, and terrorists.

Is that what you're really saying?

[robertpaulsen]

"one effect of which would be to disarm themselves"

So if the right to keep and bear arms is is not protected, that means you have to turn in your weapons.

The California State Constitution does not protect the right to keep and bear arms. Did you turn yours in? Why not? Doesn't that mean you have to?

[robertpaulsen]

"But to be a “citizen” meant more then than just to be enfranchised."

Baloney. The sons and daughters and wives of the founders were citizens -- but they couldn't vote. The couldn't run for office. They couldn't hold land. They were simply along for the ride. They weren't citizens with full rights.

"The people" had full rights. They had ties to the country. They were the ones with something to lose. They were the ones who ran the country -- the rich white guys.

They comprised the Militia and it was their right to keep and bear arms that was protected by the second amendment and no one else's.

In 1792.

[djf]

In fact your argument was tried yesterday.
By Ginsburg.

Here is the text, although I know you won’t bother reading it:
(Ginsburg tries to argue)
JUSTICE GINSBURG: If you were thinking of
“the people,” what those words meant when the Second
Amendment was adopted, it was males between the ages of
what — 17 and 45? People who were over 45 had no —
they didn’t serve in the militia.

(Gura points out...)
MR. GURA: Well, certainly, there were many
people who were not eligible for militia duty, or not
subject to militia service, who nevertheless were
expected to, and oftentimes did, in fact, have guns.

(Scalia shoots Ginsburg down and renders the argument moot)
JUSTICE SCALIA: Which shows that maybe
you’re being unrealistic in thinking that the second
clause is not broader than the first. It’s not at all
uncommon for a legislative provision or a constitutional
provision to go further than is necessary for the
principal purpose involved.
The principal purpose here is the militia,
but the — but the second clause goes beyond the militia
and says the right of the people to keep and bear arms.
Now, you may say the kind of arms is colored
by the militia. But it speaks of the right of the
people. So why not acknowledge that it’s — it’s
broader than the first clause?

(Gura agrees)
MR. GURA: Well, we do acknowledge that,
Your Honor.

Don’t bother responding unless you can refute these facts. For those who are interested, it’s on ppgs. 55-56 of the transcripts

[Publius Valerius]

I'm asking you if "the people" means men, women and small children, citizens, non-citizens and foreign visitors, the Indian tribes, prisoners, the mentally ill, and the insane, illegal aliens, felons, and terrorists.

Yes.

[Triple]

“Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.” - James Madison

“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms.” - James Madison

I’d say Madison is very clear. The right to bear arms is for americans/citizens/people, and for possible confrontation with a government/standing army, including the government he was putting in place.

The founders were wary of governments and standing armies.

You are the one making the extraordinary claim that only some (those with state appointed officers) well regulated militias are covered by the second amendment.

Cite your source.
(Or did you make this up all by yourself?)

[Triple]

can you post a link to the transcript?

Thanks

[robertpaulsen]

"MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns."

A lot of people had guns. Old people had guns. Kids had guns. Women had guns. Foreign visitors had guns.

So?

The question is, "Did the second amendment protect their right or didn't it? Were they "the people" or not?

[robertpaulsen]

"I'm asking you if "the people" means men, women and small children, citizens, non-citizens and foreign visitors, the Indian tribes, prisoners, the mentally ill, and the insane, illegal aliens, felons, and terrorists."

Yes.

Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..." (my underline).

You're saying men, women and small children, citizens, non-citizens and foreign visitors, the Indian tribes, prisoners, the mentally ill, and the insane, illegal aliens, felons, and terrorists vote?

[djf]

www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

[Triple]

thanks