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the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.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
Pretty interesting that the intent of the ammendment was to prop up the right of citizens to protest their government and if necessary overthrow it. The reason liberals have a problem with this is that their endgame is socialism and socialism can't stand up to an armed populace - it requires meek unarmed sheep who cannot stand up for themselves. The first step to a socialist society is preventing the tools of protest from reaching the masses. The more we strengthen the individual, the less the liberal socialists will like us and the louder they will get. The louder they get, the more likely we are to see a greater route of them from power in the next election. It's time the socialists in this country decided to either become americans or revoke citezenship and go live somewhere that puts up with them; but, wait - most socialist regimes wouldn't put up with their nonsense.
Cases such as Miller and Cruickshank are often cited. If one reads the entire decision, one will find that the rulings are often exactly opposite in intent from the position of the ACLU.
I don't have time to cite chapter and verse, but the info is there for anyone to read.
I understand the plain English of the 2nd, and have further read of the intent of the Founders, who wrote it. I could care less what the USSC, or the ACLU has to say about the matter. You can't reason with someone who is arguing from a position of blind ignorance.
Someday these morons are gonna push too far, and they will get a proper, bloody and expensive education in the true purpose of the 2nd.
If you are actually defining "constitutional" as meaning "approved by the U.S. supreme court", then I suppose you're right. However, I dispute that definition. "Constitutional" is no more a legal term (OR moral opinion) than "dead" is. Yes, a person can be declared legally dead by a court, but that doesn't change their metabolic condition. If a dead person is found to be living by a court, they're still dead.
Constitutionality is a matter of fact. Either a law IS consistent with the U.S. Constitution, or it is not. Court declarations cannot change that reality.
You conspicuously didn't answer Skooz's last question... If SCOTUS declared a part of the Constitution to be unconstitutional, would it be?
I guess my question boils down to this - if a weapon is not in current military use, nor has it historically been used by the military, and does not appear to be useful in "contributing to the common defense" -- then apparently the SCOTUS permits it to be regulated or banned by the states. Is this correct?
You make it sound like the Court just made this up out of thin air, when in fact it was introduced via the Fourteenth Amendment. If anything, the Court as been insufficiently consistent in taking this position, as the clear intent of the amendment drafters was to incorporate the individual rights (it simply never occurred to anyone in those days that another interpretation was possible) recited in the First through Eighth Amendments.
How can I answer an unanswerable question? The SCOTUS can no more declare a part of the Constitution to be unconstitutional than it can declare white to be black.
Yes, a person can be declared legally dead by a court, but that doesn't change their metabolic condition. If a dead person is found to be living by a court, they're still dead.
The supposed conflict here is that you're using the same word for two different terms. If a person is declared legally dead, then they are dead for the purposes of the law. In fact, the courts themselves recognize that legally dead does not necessarily equal metabolically dead, so there's no conflict.
"If you go and read the opinions, the reasoning in them is really quite abominable,"And understand that this isn't coming from someone who can be called "pro-gun".
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shallseem most likely to effect their Safety and Happiness.
How would people do this withOUT guns?
Nice try. Guns in 1790 were much MORE deadly than they are today.
Any wound to the torso was fatal, usually resulting in lingering agonizing death. Many wounds to the limbs also resulted in slow agonzing death of a period of days, or at best an amputation that did not get septic, but usually did.
Today OTOH, gang bangers today are routinely shot and patched up and put back on the street in a week.
As far as "kill a score in as many seconds" that could also be done with a shotgun loaded with dirty shot. And the wounded would spend days screaming in agony as their infections raged. However, people rarely went on shooting rampages that I have ever seen recorded.
The courts, up to and including the Supreme Court, have been known to hand down decisions that make about as much sense as declaring that white is black.
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