Posted on 02/27/2017 5:06:34 AM PST by servo1969
Does an American citizen have a Constitutional right to own a gun?
Here's what the Second Amendment says: "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."
Now, it once seemed to me like that language only protected state militias and not individuals. Indeed, this is the view held by the four dissenting Supreme Court justices in the 2008 case of District of Columbia versus Heller, a landmark case dealing with gun ownership.
But the more research I did, the more I came to realize that my initial view was mistaken and that the Founders were, in fact, securing an individual right. The five justices who voted to affirm the right to own a gun in DC versus Heller had, indeed, made the correct decision.
Let's look at the amendment one more time.
"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."
We first need to focus on the phrase "the right of the people." Note that the people are the only ones whose right is secured here, not the militia or a state government. This phrase "the right of the people" comes up a few times in the Constitution. For example, the First Amendment refers to "The right of the people peaceably to assemble, and to petition the Government." And the Fourth Amendment secures "The right of the people to be secure...against unreasonable searches and seizures."
Why, then, if the authors of the Constitution felt so strongly about "the right of the people" to own guns, did they include language about "a well-regulated militia"?
These opening words of the amendment might be called a "justification clause." Such clauses are used to help explain why a right is being secured. But it's the operative clause that explains what right is being secured. In this case, the right of the people to keep and bear arms.
And what was the word 'militia' understood to mean at the time?
Well, the Militia Act of 1792 defined "militia" to mean all white males 18 to 45. Today, of course, "militia" would include women and people of all races, but it was clearly not a reference to a small, National Guard-type group.
And what about the part of the amendment that says a militia is necessary "to the security of a free State"? What, the opponents of personal gun ownership ask, does a personal right of gun ownership have to do with that?
Again, historical context is key. In the 1790s, the phrase "free State" wasn't used to mean an individual state like New York or Rhode Island. Rather, it meant what we'd call today a "free country"--a nation free of despotism. A "free State" is what the Framers wanted America to be. They saw an armed citizenry as, in part, a hedge against tyranny. Citizens who own weapons can protect themselves, prevent tyrants from seizing power, and protect the nation from foreign enemies.
This does not mean, though, that this right is unlimited. Free speech, for example, has long been subject to some narrow and reasonable regulations. But severe restrictions on owning a gun, like severe restrictions on free speech, would violate the Second Amendment as the Founders understood it.
Maybe you think this understanding of the Second Amendment is outdated today, that the Constitution needs to change as public attitudes change. The Founders included a provision for doing just that: if the public attitude really has changed, the Constitution can be amended to reflect that change. But, ironically, even if we focus on current public attitudes, the case for individual gun ownership is as strong as ever. Polls consistently show that over two-thirds of Americans believe that the Second Amendment secures the right of citizens to own a gun. And Congress and state governments have repeatedly reaffirmed this view, including in recent decades.
So, does the Second Amendment secure an individual right to bear arms?
It did when it was written. It has throughout American history. And it does today.
I'm Eugene Volokh, Professor of Law at UCLA, for Prager University.
Well, .. Eugene, .. you’re right! But, .. all the other Profs at UCLA HATE you for it.
the right of the “”””people”””” to keep and bear Arms
Generational argument .... keep fighting those that seek to disarm us.
Whenever you see “the people” in the constitution and its amendments, It is talking about each and every INDIVIDUAL citizen. It is not talking about a collective of citizens.
Whenever I see the phrase “the people” in the constitution, I replace it with my name. That is literally what it was written to mean for each of us.
It is that simple.
I will add that the preamble to that amendment makes it darned clear it is not about hunting.
The People:
THE PEOPLE as in the Bill of Rights:
1. Right of the.people to peacefully assemble
2. Right of the people to keep and bear arms
4. Right of the people to be secure in their persons houses, possessions and effects
9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
10. Powers not delegated to the United States...are reserved to the states respectively, or to the people
What is so amazing is how this clearly spelled out right has been attacked for all these years. Liberals are constantly trying to change the lexicon of the plainly spoken word to advance tyranny.
BFLR
This was argued in the 1990s as well. The simple fact is that Leftists on the court deem rights to be whatever they think those rights should be. As a corollary, that’s also why they don’t want the public at large to be armed.
Why Bans on So-Called "Assault Weapons" Are Unlikely to Diminish the Deaths Caused by Mass Shootings
I'm on the record as saying that bans on so-called "assault weapons" are likely constitutional (see pp. 1483-87 of this article), and several state courts have held the same under state constitutional individual right-to-bear-arms provisions before Heller. Such bans leave law-abiding citizens with ample access to other guns that are equally effective, and therefore don't substantially burden the constitutional right.
FWIW (I think it unfortunate), Volkh is a favorite to cite, by judges. He is cited by SCOTUS, in Heller.
The 4 dissenting judges in the Heller case, voted that way without regard to facts or history.
The whole argument is MOOT because approximately 100 million Americans will not comply with ANY judiciary order to meekly turn in their guns and few LEO’s would enforce such an order.
A corollary situation was Prohibition. Look how well that federal over reach worked. Another more current situation is federal marijuana laws are ignored. And, so are immigration laws and the list goes on and on and on.
Think of the absurdity of the Framers feeling a need to state that “the right of the militia (army) to keep and bear arms shall not be infringed.”
This was an era when we did not have men in dresses demanding to pee with little girls. Such an absurd concept as to disarm the militia would not even be conceivable in their minds.
It was clearly, as all of the Bill of Rights, designed to reiterate the rights of the people, not the rights of governments and armies.
I've never seen much question to that!
Yes!
Justice Scalia's decision in D.C. v. Heller secures an individual right to keep and bear arms free of infringement.
What remains for future courts to decide is what an infringement is.
A well regulated Internet being necessary to the security of a free state, the right of the people to keep and bear Modems shall not be infringed.
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.
There is NOTHING to interpret.
the right of the PEOPLE to keep and bear arms SHALL NOT BE INFRINGED...
look at the libtard unconstitutional SAFE act
it can not be changed by any COURT... any change must be ratified by 3/4th’s of the states
THE REAL PROBLEM IS THE FED ENCROACHMENT ON STATE RIGHTS AND INDIVIDUAL RIGHTS
The 69th Amendment: A well regulated infestation being necessary to the insecurity of what was once a free state, the obligation of the people to bear and tolerate enemy islamist muslims shall not be abridged.
YES, we do because.......Without that RIGHT, a well regulated militia would not be possible.
Not only do I have a constitutional right to own a gun I have the inalienable God given right to oena gun. Inalienable rights don’t come from govt.
I read Atlas Shrugged in 1963 when I was a nineteen year old sailor with more than one year of service already. I was at Keflavik Naval Communications Station. Let anyone say what they will about Ayn Rand but she clearly explained that the CORRUPTION of language was one of the main tools of oppression. I am reminded of what she wrote every day when I have to try to decipher what people say and write and I am often left wondering if they themselves even know what they are trying to express. It is obvious that as far as the “mainstream” media types are concerned words have different meanings when spoken by different people and different meanings when spoken ABOUT different people. When a “liberal” says something about a “conservative” they mean something very different than what a “conservative” means when they use the same words in regard to a “liberal”.
This is by far the most succinct explanation of the 2nd Amendment that I have ever heard. Kudos Eugene Volokh on a job well done.
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