Fun with Second Amendment Revisionists

I read your latest piece. It was pretty funny even if inaccurate. I take issue with your definition of the term “well-regulated.”

It is incorrect. I would suggest that you look in your Oxford dictionary. I’m sure you must have access to one. Well-regulated means trained or synchronized. It does not mean “regulated by government” as you suggest.

Furthermore, what you think is a good idea regarding the second amendment is of no concern. The Constitution is the Supreme Law of the land. There is no “good idea” clause in the constitution that exempts us from adhering to it if we can invent something that the founders might not have considered.

The right to bear arms is an extension of your own right to defend yourself. Your right to life. The rights in the constitution are not granted by the document but merely enumerated. While they do tell government to keep its hands off our liberties, they did not create these liberties. Jefferson wrote in the declaration of independence “governments are instituted among men, deriving their just powers from the consent of the governed.” The government cannot, without fraud and force, execute powers which the people they serve do not first possess. It’s quite simple really. You can’t sell your neighbor’s car without committing fraud and you cannot give the government powers you do not have.

Thus, the government itself may not possess firearms without committing fraud unless you can. And it cannot prevent you from owning firearms because again, this is not a power that you possess. You cannot tell your neighbor that he can’t possess a firearm and you cannot give the government such power to exercise on your behalf.

I would suggest that you read over the last Supreme Court case involving the second amendment, US v Miller, decided in 1939. The court performed a thorough bit of research concluding that the militia was the entire collection of people amenable to serve in the military. And at the time they were expected to bring their own guns. The militia act of 1792 defines the militia as all men between the ages of 17 and 45 who did not object for reasons of conscience. You are the militia as am I.

There is another case in the 5th district I believe which directly opposes the 9th’ circuit’s reading of the constitution. This is good news for those of us who want the constitution literally interpreted because it is likely that we will finally see the Supreme Court decide a second amendment case in our lifetime. As you probably know the Supreme Court doesn’t generally accept a case unless there is disagreement in the district courts.

Here’s what Justice Thomas said about the second amendment in his concurring opinion in Printz Sheriff Mack v US which overturned the “unfunded mandate” portions of the Brady Bill:

It is quite likely that we will finally get a court ruling which states what we all have known for quite some time: The second amendment guarantees the right for citizens to own firearms on a personal basis and not just those deemed acceptable by the state. As US v Miller interpreted the amendment, firearms which served a military purpose were exactly the type of arms being protected. That would of course mean fully automatic weapons today.

I hope that you don’t dismiss this email out of hand simply because my view disagrees with yours. I would urge you to take a second look and consider what you’ve already written on the subject. You make an excellent point:

“Once the judge handed down his decision, patriotic defenders of our right to own high-powered machines of destruction like assault rifles and SUVs and McDonald's coffee and Barbara Streisand albums began comparing him to the Nazis—and rightfully so, since the Nazis were noted for their enthusiasm in taking guns away from people and giving them to other people who used them to shoot Jews.”

You may have been completely facetious here but it is absolutely true that this is what occurred in Hitler’s Germany though perhaps not in the way you might think. Exemptions to the gun laws were for citizens only. Non-citizens were not allowed to own firearms. And so rather than passing new gun-laws to further restrict ownership, Jews, Jehova’s witnesses, Gays, and other undesirables were claimed to be non-citizens. And then marked for death. This was easy to do since they had been stripped of their guns.

Before you say that it can’t happen here, the exact same thing did happen here when the Dred Scott (Scott v Sanford) decision was handed down. Justice Teney, who didn’t have even a little bit of constitutional support for this position, ruled that free blacks were non-citizens and instantly took them from the category of protected citizens with rights, into the abyss of non-human status since the constitution does not provide protection only to citizens but to people. The doctrine of “citizen” status as a guide for government behavior arose from racist anti-gun laws and court rulings which attempted to place rights out of reach from the freed slave. For an excellent article citing the laws and cases, read Clayton Cramer’s “The Racist Roots of Gun Control.” You can find it in many places on the internet.

http://www.guncite.com/gc2ndmea.html

The Meaning of the Words in the Second Amendment

Summary
Erroneous interpretations of the words in the Second Amendment occur from both sides of the debate. The meaning of the words "militia," "well regulated," "the people," "to keep and bear," and "arms," are discussed.

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.

A Militia
The word "militia" has several meanings. It can be a body of citizens (no longer exclusively male) enrolled for military service where full time duty is required only in emergencies. The term also refers to the eligible pool of citizens callable into military service. The federal government can use the militia for the following purposes as stated in Article I, Section 8 of the Constitution:
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
Is today's National Guard the militia? It is a part of the well regulated militia, and as mentioned in GunCite's, The Original Intent and Purpose of the Second Amendment, it was not the intent of the framers to restrict the right to keep arms to a militia let alone a well regulated one.
(Once a member of the National Guard is ordered into active military service of the United States, that member is no longer under the command of a State Guard unit. See the Supreme Court case Perpich v. Department of Defense, 496 U.S. 334 (1990) for a brief but good explanation of the evolution of the National Guard statutes.)
For a definition of today's militia as defined in the United States Code, click here.
A militia is always subject to federal, state, or local government control. A "private" militia or army not under government control could be considered illegal and in rebellion, and as a result subject to harsh punishment. (See Macnutt, Karen L., Militias, Women and Guns Magazine, March, 1995.)
Some argue that since the militias are "owned," or at the disposal of the states, that the states are free to disarm their militia if they so choose, and therefore of course no individual right to keep arms exists. The Militia is not "owned" by anybody, rather they are controlled, organized, et. cetera, by governments. The federal government as well as the states have no legitimate power to disarm the people from which militias are organized. Unfortunately, few jurists today hold this view. (See Reynolds, Glen Harlan, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461-511 [1995].)
A brief summary of early U.S. militia history.
Well Regulated
Of all the words in the Second Amendment, "well regulated" probably causes the most confusion. The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period (Oxford English Dictionary, 2nd Edition, 1989):
1) To control or direct by a rule, principle, method, etc.
2) To adjust to some standard or requirement as for amount, degree, etc.
3) To adjust so as to ensure accuracy of operation.
4) To put in good order.

The first definition, to control by law in this case, was already provided for in the Constitution. It would have been unnecessary to repeat the need for that kind of regulation. For reference, here is the passage from Article I, Section 8 of the Constitution, granting the federal government the power to regulate the militia:
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;

Some in their enthusiasm to belong to a well regulated militia have attempted to explain well regulated by using the definition "adjust so as to ensure accuracy." A regulated rifle is one that is sighted-in. However well regulated modifies militia, not arms. That definition is clearly inappropriate.
This leaves us with "to adjust to some standard..." or "to put in good order." Let's let Alexander Hamilton explain what is meant by well regulated in Federalist Paper No. 29:
The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.
        --- See The Federalist Papers, No. 29.

"To put in good order" is the correct interpretation of well regulated, signifying a well disciplined, trained, and functioning militia.
This quote from the Journals of the Continental Congress, 1774-1789 also conveys the meaning of well regulated:
Resolved , That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army.
        --- Saturday, December 13, 1777.

The Oxford English Dictionary, 2nd Edition, (1989) defines regulated in 1690 to have meant "properly disciplined" when describing soldiers:
[obsolete sense]
b. Of troops: Properly disciplined. Obs. rare-1.
1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.

The text itself also suggests the fourth definition ("to put in good order"). Considering the adjective "well" and the context of the militia clause, which is more likely to ensure the security of a free state, a militia governed by numerous laws (or just the right amount of laws [depending on the meaning of "well"] ) or a well-disciplined and trained militia?
The People
This paragraph shouldn't be necessary. That one must explain why the "people" in the Second Amendment means individuals, rather than the state or the people "collectively," is a sad commentary on the intellectual honesty of our day. Where are the quotes from the founders indicating that the right to keep and bear arms is solely a right belonging to the state? None have yet to be brought forth.
The first eight amendments were meant to preserve specifically named individual rights. (The Ninth Amendment was meant to insure that no one would argue that those first eight were the only individual rights protected from infringment.) The people are mentioned throughout the Bill of Rights. Were the Founding Fathers so careless in constructing a legal document that they would use the word "people" when they meant the "state?" It is unlikely. Evidence of an individual right to keep and bear arms is presented throughout the Second Amendment section of GunCite, and will not be repeated here. However, additional evidence follows, showing that the "people" means the people as individuals (everyone) rather than some amorphous body or the state.

The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...[I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
         ---Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers, 2. (Source: Halbrook, Stephen, That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984, p. 225)

The Fourth Amendment of the Bill of Rights begins:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
The use of "people" in the Fourth Amendment obviously indicates an individual right. The Tenth Amendment reads:
"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."
The Tenth Amendment above, distinguishes between the states and the people.
One of James Madison's proposed amendments:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
Would anybody in their right mind suggest Madison proposed a collective right to speak, write, or publish their thoughts?
Looking at other declarations of rights from the time clearly shows that "the people," in other words everyone, were entitled to certain rights (freemen in those days).
For example, Article XIII of Pennsylvania's Declaration of Rights states:
"That the people have a right to bear arms for the defence of themselves and the state..."
Article XII from the same declaration says:
"That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained."
In both of the above examples, "the people" means each person. Would anyone seriously suggest that Article XII protects only a "collective right," or that the people's freedom of speech and writing is limited to those who posses a printing press or to works appearing in the news media?
Let's look at Virginia's proposed Declaration of Bill of Rights to the United States Constitution. From the preamble:
"That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following;"
The Seventeenth article states:
"That the people have a right to keep and bear arms..."
The Eleventh article:
"That in controversies respecting property, and in suits between man and man, the ancient trial by Jury is one of the greatest Securities to the rights of the people, and ought to remain sacred and inviolable."
Was the right to trial by jury meant to be a "collective right?" Of course not; it applied to the people, each and every one of them. Article Sixteen:
"That the people have a right to freedom of speech, and of writing and publishing their Sentiments; but the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated."
The above article appears right before the article mentioning the "right of the people to keep and bear arms." Does the meaning of "the people" suddenly transform from an individual right of speech to a "collective right" to keep and bear arms?
Comparing the Fourteenth article from Virginia's Declaration of Rights to the Fourth Amendment in the Bill of Rights shows that Madison, who was from Virginia, substituted "the people" for "every freeman."
"That every freeman has a right to be secure from all unreasonable searches and seizures..." (Fourteenth article)
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..." (Fourth Amendment)
Yet, Yale law professor Akhil Amar claims, "when the Constitution speaks of 'the people' rather than 'persons,' the collective connotation is primary" (Second Thoughts: What the right to bear arms really means). Amar's theory unravels when looking at all of the evidence. He tries to reconcile a portion of it writing "The Fourth Amendment is trickier... And these words obviously focus on the private domain, protecting individuals in their private homes more than in the public square. Why, then, did the Fourth use the words 'the people' at all? Probably to highlight the role that jurors--acting collectively and representing the electorate--would play in deciding which searches were reasonable and how much to punish government officials who searched or seized improperly."
Amar's reasoning might sound plausible in today's context, however he fails to provide an appropriate example. In 1789 jurors did not issue warrants or determine whether a search was reasonable and they could not "punish government officials who searched or seized improperly." There was no method of suing the government in 1789 for damages resulting from the violation of civil rights. Also Amar fails to explain Madison's draft amendment protecting the people's right to speak and write, mentioned above.
Some individual rights were protected for collective purposes, the Second Amendment being one of them, however this doesn't tranform the individual right into a "collective right" belonging to the states or the militia.
One final example from Roger Sherman's draft bill of rights, article 2 (at 983), (Sherman was a Founder, Senator, and lawyer):
"The people have certain natural rights which are retained by them when they enter into Society, such are the rights of Conscience in matters of religion; of acquiring property and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united states."
Lastly, even the Supreme Court agrees on the meaning of "the people" as used in the Bill of Rights (Adamson v. California, 1947).
"The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government..."
And the dissent agrees:
"The first 10 amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties."

To Keep and Bear
To "keep" arms simply means keeping one's own arms for self-defense or militia use.
"To bear arms" is thought by some to apply only in a military context. However, even at the time of the founders this wasn't true. For example in 1776, Article XIII of Pennsylvania's Declaration of Rights stated: "That the people have a right to bear arms in defense of themselves and the State." For a more detailed discussion of this interpretation see the 5th Circuit's Court decision in U.S. v. Emerson (Part V [Second Amendment], C [Text], 1 [Substantive Guarantee], b [Bear Arms] ).
For the view that "bearing arms" signifies military service, see Guncite's "Is there Contrary Evidence?"
Arms
In Colonial times "arms" usually meant weapons that could be carried. This included knives, swords, rifles and pistols. Dictionaries of the time had a separate definition for "ordinance" (as it was spelled then) meaning cannon. Any hand held, non-ordnance type weapons, are theoretically constitutionally protected. Obviously nuclear weapons, tanks, rockets, fighter planes, and submarines are not.
This off-site essay offers a differing and reasonable view that arms in the late 18th Century did mean the full array of arms and offers how that definition can be applied today "honestly (and constitutionally)."

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