Posted on 02/19/2003 2:17:30 PM PST by Skooz
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the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.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
So, all SCOTUS decisions are perfect interpretations of the Constitution? The SCOTUS has never been wrong about any element of constitutional law? If SCOTUS declared the 5th Amendment unconstitutional, would that make it so?
SCOTUS is as infallible about constitutional interpretation as the Pope is about Scriptural interpretation? (I'm not Catholic, just trying to make a point)
Good point. The Constitution is a "living document" except for the one part they do not like.
State militias ceased to exist after the Civil War. To a modern mega-nation, the mere thought of "the Army of Northern Virginia" was a non-starter.
Like any powerful special interest, the NRA works to secure its financial well being.
Which makes the NRA no different than the ACLU, I might add.
If the First Amendment can be used to protect pornography from government prosecution, then the Second Amendment sure as hell guarantees me the right to own a gun.
Uh-oh... ACLU just accidentally gave away the store.
Dear Son, I am feeling pretty bad because it looks like I won't be able to plant my potato garden this year. I hate to miss doing the garden, because your mother always loved planting time. I'm just getting too old to be digging up a garden plot. If you were here, all my troubles would be over. I know you would dig the plot for me, if you weren't chasing jiahdists. Love, Dad
Shortly, the old man received this telegram: "For Heaven's sake, Dad, don't dig up the garden! That's where I buried the GUNS!" At 4 a.m. the next morning, a dozen FBI agents and local police officers showed up and dug up the entire garden. No guns were found. Confused, the old man wrote another note to his son telling him what happened, and asked him what to do next. His son's reply was: "Go ahead and plant your potatoes, Dad. It's the best I could do for you from here."
That's one way of looking at it. But they can also be looked at from a different viewpoint, which is that the amendments in the Bill of Rights are written to restrain Congress. Thus, for example, the First Amendment says "Congress shall make no law ...", not "Congress and the several States shall make no law ...". It states the rights preserved under it from the viewpoint of what Congress is forbidden to do. Now, it has been the position of the SCOTUS in many cases that the limitations on Congress also apply to the several State governments, but not always.
In fact, I've even seen it argued here on FR (during church/state separation threads) that the First Amendment allows states to support established churches, barring only Congress from doing so. After all, there were established churches supported by some of the states at the time of the Constitution. While Americans today would view that as outrageous, it was not so at the writing of the Constitution. Gradually, it has become viewed that the rights conserved (not granted!) by the Bill of Rights should also be conserved by the States, and that the Federal government should be the guarantor thereof. But at least in the case of the 2nd Amendment, this is not universal.
So, after spelling out what the Congress cannot do in the first 9 amendments, a catch-all was put into the 10th, to finish the job, and it made sure to make clear that both individuals and the states had rights that the Congress didn't. The states thus are explictly told that they have rights that the Federal government does not. Gun control would seem to be one of these, at least in the opinion of the Supreme Court.
My personal opinion of gun control, by the way: no non-felonious citizen should have any restrictions placed on either handgun or long gun ownership. Restrictions on automatic weapons are fine by me, as I think that in general that makes me safer (I see the likelihood that a criminal or nut would get ahold of and use one far greater than the likelihood that I'd need one to defend myself). When the Founding Fathers considered the issue of guns, they had no clue that anyone might be able to buy a gun that could kill a score of people in as many seconds.
Excuse me, perhaps I could have stated that better. I'm not saying that SCOTUS decisions are always right. I'm saying that they're always legal. "Constitutional" is a defined legal term, not a moral opinion. If the SCOTUS says that state-based gun control is Constitutional, it's Constitutional, up until the point that you can get a new Constitutional amendment passed or get a later session to overturn the precedent of a previous court.
Absolutely not.
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