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the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.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.
Took my first trip there this summer.
Spectacular.... I'm jealous. Will come up there more.
What--you didn't know that ACLU actually stands for the "American Commies & Liberals Union"?
Or the ACLU perpetuates gang rape in NYC parks?
Santorum gets a C! Go Ricky! (And no kids, C's aren't good enough!) ;-)
Why I Oppose the US War on Terror:
an ex-Marine Sergeant Speaks Out
And please, DO NOT kill the messager (Severe Duct Tape Alert!)
Come and get it.
So to remedy that the ACLU decides to focus entirely on the first phrase and entirely ignore the second.
The Supreme Court has flatly held that the individual’s right to keep and bear arms "is not a right granted by the Constitution."
Strange thing for a Supreme Court to say since the USC doesn't delineate all individual rights. Prior to the Bill of Rights it didn't grant ANY rights. It merely described the powers of the federal gov and the role of the states within it. Many founders (e.g. George Mason) OPPOSED the redundancy of the BoR b/c they worried it would lead people to think that the USC actually grants rights to states & individuals and that others are not inviolable. The 9th & 10th were supposed to alleviate this concern. I guess it didn't work.
Like any powerful special interest, the NRA works to secure its financial well being.
But, of course, the ACLU is the one exception to this rule.
The NRA implies that the Bill of Rights forces us to accept unlimited gun ownership
Factually false. The NRA opposes granting gun ownership to people with violent criminal records. That is one limitation they endorse.
I don't necessarily buy the NRA's interpretation of the 2nd Amendment, but pap like the ACLU puts out doesn't help advance the debate.
Clearly, this means that only official state run schools and universities may possess certain dangerous books, and the state may restrict the right of individuals to own or read books.
At
http://www.aclu-mass.org/archives/2ndamend.html
your organization writes:
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.
It is interesting that you do not refer to the ninth or tenth amendments and that this statement gives no authorities and cites no sources (though other statements do.) You also ignore and fail to mention those plentiful disagreements with your point of view in the ample writings of the founding fathers.
Your pamphlet begins by characterizing the opinion that the 2nd Amendment guarantees the right of the people to keep and bear arms as a "sentiment", rather than an opinion held by, among others, the current Attorney General of the United States.
To characterize the opinions of those who differ from one's own point of view as mere "sentiment" is to betray an dishonest and tendentious approach to argument.
You characterize the NRA as a special interest working to secure its financial well being. I don't see how the ACLU-Mass is not equally a special interest working to secure its financial well being and lying in order to do so.
Then there is your irresponsible charge that the NRA perpetuates "a seemingly endless cycle of gun-related fatalities". Just what exactly, if anything, does that phrase mean? To me the lies of the ACLU seem endless. May I say you engage in seemingly endless lies? And what is cyclical about gun related fatalities?
Finally you give vent to what you would call a "sentiment" and one which is at best unsubstantiated and which is, at worst, arguably meaningless. You write:
The ACLU of Massachusetts believes effective gun control—especially of handguns and assault weapons—is essential to curbing the escalating violence in our society.
At least you approach candor when you characterize this as a belief. Have you any evidence to support the contention that "effective gun control" would curb the "escalating violence in our society"?
Isn't it the case that until recently the incidence of violence was on a decline in our country? Of course, in our history there has never been an uncurbed escalation of violence. Even when violence was escalating, there were curbs in place.
If anything, the recent rise in violent crime followed stricter gun control laws. What, then leads you to believe that stricter laws would lead to a decline in gun violence?
But you don't say "stricter laws", you say "effective gun control". So your final statement comes down to an unverifiable because unfalsifiable, assertion. You define effective gun control laws as ones which "curb the escalation of violence" and then, until violence ceases you can say that the current laws are ineffective. It's a tautology and it amounts to "laws which curb violence will curb violence".
So what kind of person uses such a tautology in a piece of expository prose? Either a person unable to reason or a person who intends to deceive. In either case, the ACLU and this piece of prose are, in the strict sense of the words, despicable and full of lies.
"I ask sir, what is the militia? It is the whole people, except for a few public officials."
And if that wasn't clear enough, Mason said
"To disarm the people is the best and most effectual way to enslave them."
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.
Article 1, Section 9. of the U. S. Constitution:
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
So by the ACLU's interpretation, the signatories to the Constitution signed onto the Second Amendment and immediately declared Section 9 null and void since a tyrannical federal government could simply deny to the states their consent to keep troops. All the signatories who wrote that they simply wanted to have the Bill of Rights declare some rights not stated in the Constitution are liers. On one hand they signed a document stating that the states cannot have troops without the consent of Congress and yet they wanted the states to have the ability to resist the federal government (I guess without troops, or did they expect a tyrannical federal government to give consent to the states to keep troops?).
If you take a contradictory view and see the Second Amendment as giving the people a way to resist a tyrannical government, then there is no conflict. The states are still prohibited from maintaining National Guard troops without the consent of Congress and the people can still form militias to resist a federal government that might withhold that very consent. It is impossible to reconcile the ACLU's position.
Irreconcilable indeed, except that they are a Communist front organization intent upon disarming Americans before they dismember us.
For which, they will fail (and their failure will be quite painful).
Victor Davis Hanson, in his conclusion to The Soul of Battle says,
The great danger of the present age is that democracy may never again marshal the will to march against and ultimately destroy evil...
But an even greater peril still in present-day democratic society is that we may have forgotten that there finally must be a choice between good and evil; that the real immorality is not the use of great force to inflict punishment, but, as the Greeks remind us, the failure to exercise moral authority at all. When men like Epaminondas, Sherman and Patton go to war to stop evil and to save lives, there is soul to their battle that lives on well after they are gone.
I believe that there are still a sufficient number of courageous men and women who will make the critical difference when that Day comes: those who understand the necessity to make a choice and take a stand regardless of the cost, even if that choice costs them their lives. History has taught us dreadful lessons in the consequences of passivity, ignorance and sheepery; I do not care to repeat them. What should be so clear to us is that we will have to go to war; not just against the death-worshippers of eh Middle East, but also agaisnt the liars, haters and death-worshippers amongst our own countrymen. We will have to invoke the soul of battle and fight as circumstance, the morality and logic of freedom and the love of our lives and those dear to us demand that we must.
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