Posted on 12/21/2002 2:30:44 PM PST by pabianice
2nd 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."
Have you ever heard someone say gun control is a fine idea— except that the Second Amendment prohibits it?
It’s a popular sentiment. Fortunately, it’s not true.
The Second Amendment was never intended as a gun license for the entire American populace. As originally drafted—and as consistently interpreted by the courts for more than a century—the 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 nation’s 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." Doesn’t 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the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.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 doesn’t 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 America—enforcing 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 barns—there 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 Guard—and Army Reserve—are 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 today’s weapons—tanks, armored personnel carriers, airplanes and the like—hardly 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 limit—even prohibit—ownership 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 courts—particularly the U.S. Supreme Court—interpreted the Second Amendment?
A The Supreme Court has flatly held that the individual’s 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 government’s 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 couldn’t 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 women’s, children’s 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 isn’t 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 control—especially of handguns and assault weapons—is essential to curbing the escalating violence in our society.
It does NOT say "the right of the well regulated militia to keep and bear arms shall not be infringed."
It DOES say "the right of the people to keep and bear arms shall not be infringed."
How the ACLU and liberals deceive -- they give only part of the quote from the Supreme Court --
They omit the words following the quote -- the Supreme Court paragraph is --
---"The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. [U.S. v. Cruikshank]
"...A well educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed..."
Tell the ACLU to put THAT in their dockett and smoke it.
Nice try, ACLU.
The framers had in mind only state's militias, huh? Well it wasn't until after WW1 that the states even HAD any militias. Thats some 120 years after the constitution was ratified!
What's wrong with this picture? A "vast majority of constitutional 'experts?'" HA!
"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"
Implication: 2nd amendment had a sunset provision. In other words, the US government is no longer a fledgling (oh no it is more like a full grown vulture!) therefore there is no more constitutional right of the states to defend themselves, or for the people to keep and bear arms.
Rebuttal: "No freeman shall ever be debarred the use of arms." --Thomas Jefferson, Proposed Virginia Constitution, June 1776.
Conclusion: If Jefferson is any authority, then the right to keep and bear arms is perpetual and applies to all free men.
And that does not even address the silliness of saying the states wanted the constitutional right to protect themselves. They had the right to protect themselves, knew it, and were prepared to do it, constitution or not. They didn't wait around for a piece of paper to say it is ok. What utter garbage.
Now, in order to determine the intent of the founders in regards to this issue, I now turn to Thomas Jefferson who said:
"No free man shall ever be debarred the use of arms."
- Thomas Jefferson, Proposed Virginia Constitution (1776)
Since we are no longer a free people - being economically (and otherwise) enslaved by the tyrannical madmen in the District of Criminality - in the current context, the ACLU is correct.
What shall we now do about it?
The overwhelming majority of Law Reviews, some with great reluctance, disagree.
Comprehensive Bibliography Of The Second Amendment In Law Reviews
But lawyers don't know nearly as much about the law as disgraced social studies professors.
Will Do - my result from the drug war is a fried brain (But I got a B in Physics II) :)
When I can find my car keys I will be back to normal.
Maybe it's time to change strategy and not leave ourselves hanging out there waiting to be rounded up.
After all, don't you think that Governments at all levels in the US consider us domestic enemies? By that I mean that we and people like us are considered to be the domestic enemies that our military forces, politicians and all other law enforcement agencies take an oath to defend the United States Government against?
L
Since the amendment says its the PEOPLE who shall not have their rights to arms abridged. The its quite obvious that the militia is made up of THE PEOPLE. Not some National Guard that was created by the Congress.
If the ACLU doesn't like the plain intent and meaning of the 2nd. Then they should campaign to change it. Until then, I have a right to bear arms. Period.
No -- the more people on the lists, the safer you are. -- Sarah Brady hopes she can intimidate gun owners to worry about being on a list.
I'll second that (no pun here). There were lots of communist "front" organizaitons created in decades past by the communists. I believe that some of them were "planned parenthood", "NAACP", the hollywood "writers guild" and I wouldn't doubt if the ACLU were another. There were lots of genunie communist front organizations. Ask David Horowitz.
Stalin and the USSR may no longer control these organizations. But the people who do control them have the same mindset from the communist days. They hate America, and all that that means. And their goal is to tear it apart. And they're still trying to carry out the goal.
Our enemies aren't exactly anonymous. Politicians are public figures. Traitorous law enforcement officials are somewhat less so, but all that means is that a little more work and determination are required.
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