“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.”
That, of course, is the Second Amendment to the U.S. Constitution. And according to the gun culture, it’s the constitutional provision that confers on them the right (if not the duty) to stockpile all manner of artillery in their basements to protect themselves against curious ATF agents or deer with Uzis. It’s also the “amendment that makes all the others possible.” Seriously.
But there are many hitches to reading this little passage as a license for packing heat. And some of those hitches are to be found right there in the text of the amendment itself. While untangling the thread of the framers’ intent might require expertise in history and/or law, deciphering what they actually said requires only a fundamental knowledge of the mother tongue.
Let’s begin with the most trivial objection and work our way up the ladder.
Where’s the Hardware?
First of all, where do you see the word gun in this statement, or anywhere else in the Constitution? Or where do you see the more euphemistic “firearms”? All I see is “arms”, which could refer to stone knives, boomerangs, or water balloons. Okay, so that’s a stretch. It’s reasonable to assume that the framers intended “arms” to apply to the weaponry they were accustomed to. So maybe you really are authorized to keep a muzzle-loaded musket in your closet. But it doesn’t explicitly say so. And while that in itself might sound frivolous, it might have more weight in context with what follows.
To Have and to Hold
But where do you see anything about ownership of such pieces? All I see is the phrase “keep and bear”. Soldiers routinely “keep and bear” all manner of nifty toys without privately owning them. In Revolutionary times, of course, things were very different; it was expected that citizens would supply their own battle implements to aid the common defense, so “keep and bear” bore the implication of possession. But possession itself is not specifically and literally addressed.
The Long Four-Letter Word
Even if we acknowledge a right to own guns, that’s a matter independent from governmental authority to regulate gun ownership; by no means does one exclude the other. But to hear the gun lobby tell it, any attempt at government regulation (“gun control” in the official media spin), no matter how reasonable, is a commie maneuver to “take away” their precious phallic substitutes – even though the Constitution unequivocally states that arms not only can be regulated but well regulated. If someone proposed a law against firing a bazooka in a crowded mall, these folks would probably howl to the heavens.
This reaction, perhaps, says a great deal about the real motives of the NRA and its comrades – not to defend “freedom first”, but to defend profit first. They like to gauge (double meaning intended) freedom by the number of guns floating around, though for my part I feel a hell of a lot freer strolling through Tokyo than I do strolling through Little Rock. (I also feel freer in resisting the incendiary rhetoric trying to manipulate me into purchasing a dozen semiautomatic rifles when it only takes one to handle that jerk who cut me off in traffic fifty miles back.) Do they want to seize the Constitution and use it for their own lucrative ends? From these cold, dead hands, bub.
You often will hear them claim that restricting Second Amendment “rights” is as bad as restricting First Amendment rights – i.e., free speech. Actually, free speech is restricted; there are laws, for instance, against slander, libel, perjury and fraudulent advertising. But the analogy doesn’t hold up under fire.
Speech is devised for communication, for building relationships, for enshrining ideas, for artistic expression, for many things that exalt the human condition. Guns are devised to kill people. It’s not comparing apples to oranges. It’s comparing apples to pogo sticks.
For a more appropriate analogy, suppose the amendment instead said: “Well regulated transportation being necessary for efficient living in the modern world, the right of the people to operate vehicles shall not be infringed.” Would anyone maintain that it empowered anyone and everyone to drive a car unrestricted without licensing or examination, regardless of health or prior record?
And why did the framers consider it so important for citizens to be up in arms? Because they might be called upon to participate in the militia, a civilian defense body that has been supplanted by today’s National Guard. Militias are no longer functional – and no, they do not include those characters in Michigan or Montana drilling in fatigues in preparation for Armageddon. They’re not regulated at all. (One might argue that they’re not exactly functional, either.) In other words, the whole concept of a militia is obsolete, and it has dragged the Second Amendment down along with it. Lest you think it’s implausible for an amendment included in the Bill Of Rights to slip into obsolescence without being repealed by another amendment, I suggest you keep your copy of the Constitution open to the same page and continue reading through the Third Amendment. When was the last time you heard of that one applying to anything in real life?
Subject to Review
But let’s cut to the chase, shall we? I lied. The passage quoted above is actually not the Second Amendment; at least it’s not the original version passed by Congress in 1791. It is, rather, a subtly altered version that states later ratified, much to the delight of the gun lobby, which almost always quotes the tweaked edition. Here’s the way the Amendment read as passed by Congress:
“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.”
Notice the difference? The NRA is really hoping you won’t. But if you look closely, you’ll spot something that was missing from the other version. Actually, two somethings: little spermatazoid markings after “Militia” and “Arms”. They’re called commas, and they can drastically alter the meaning of a sentence. (Which sounds more appealing: ” a million dollars, and beads” or “a million, dollars and beads “?)
Under the standard rules of punctuation for the English language, these commas make “A well regulated Militia” the subject of the sentence – i.e., the thing that “shall not be infringed”. The other two phrases bracketed by commas just amplify that subject.
But guess what? Contrary to what the NRA seems to believe, removing the commas in this instance doesn’t materially alter the gist of the thought. It does make “the right of the people to keep and bear Arms” the subject, but it’s a heavily qualified subject; it’s still hard to ignore (though many try) the stated purpose of that right – “a well regulated Militia” – especially since it begins the sentence. They changed the syntax, but they didn’t substantially change the sense. “A well regulated Militia” is the heart of this Amendment whether it’s the thing that shall not be infringed, or whether it clarifies and defines the thing that shall not be infringed.
It would have been easy to add some succinct wording about using weapons to hunt for food or trespassers if that had been the purpose. For that matter, why spell out any specific usage at all, such as “a well regulated Militia”? Merely saying “the right of the people to keep and bear arms” would have covered all the bases, had that been the focus.
Moreover, earlier drafts of the Amendment contained the provision that “no person religiously scrupulous shall be compelled to bear arms”. That’s a very curious addendum indeed if Thomas Jefferson’s vision was aligned with Charlton Heston’s.
And Now the Kicker
In short, there is nothing in the text of the Second Amendment to indicate that it has anything to do with stalking either Bambi or rival gang members. In contemporary application, it simply means that states have the right to maintain armed National Guard units.
But having said all of this, we must add that none of it really matters anymore. Not since a 2008 Supreme Court ruling determined by five “conservative” justices. (You know the type: they scorn “judicial activism” or “social engineering”. Unless it advances their ideology and/ or lines their pockets.) They simply decreed that henceforth, the Second Amendment would say what they wanted it to, whether it really does or not.
Lovely how that works, isn’t it?
AFTERWORD (Jan.21, 2012): The most perceptive criticism I’ve heard of the above post has been to the effect that formal writing of the Revolutionary era was not as standardized in its punctuation as it is today, and it was not unheard of for a comma to stray between a subject and its predicate. True enough. But the fact that this passage was revised before ratification indicates that the framers were cognizant of the different nuances. It also suggests that it was the states that wanted to emphasize the “right to keep and bear arms” rather than Congress.
At any rate, as I stated above, it doesn’t really matter, because in both versions the intent is the same – the two phrases are interdependent. Just try switching them: “The right of the people to keep and bear arms being necessary to the security of a free state, a well-regulated militia shall not be infringed.” Would anyone argue that this establishes the right of a militia to do anything it pleases- to pillage, rape, and demolish at will? Don’t think so. A militia in such a passage would be defined in terms of keeping and bearing arms for the purpose of the security of a free state. Likewise, in the version of the Second Amendment we have, the right to keep and bear arms is defined in conjunction with a well-regulated militia for the purpose of the security of a free state. Nothing more.
Well, you’ve finally drawn me out of the woodwork enough to want to comment. 🙂
As I understand it, the Constitution doesn’t grant or confer rights to anyone. It confers certain powers to the government, and protects certain [i]pre-existing[/i] rights of the people, and that’s where many people get in trouble.
You’re examining the Second Amendment without looking at the writings of the Founders, trying to look at it in a vacuum, and that can’t work. You’re looking at the language of 200+ years ago with the interpretations of today. The militia was supposed to be well-trained, not encumbered with rules. The militia then was supposed to be able to grab their arms and report to a central location, but report able to fight, not to wait for the muskets, powder and lead to be handed out.
The comparison you make to the First Amendment is flawed as well. You comment upon First Amendment [i]actions[/i] but most liberals want to restrict Second Amendment [i]tools[/i]. The Second Amendment equivalent of “fire in a crowded theater” is “shooting a bunch of people at a shopping mall,” and both actions are already illegal. The First Amendment equivalent of the Brady Law would be a 5-day waiting period on purchasing a high-speed computer. You’d have places where you were only allowed to use abacuses (abacii?). You’ve have restrictions in place about posting on the internet while intoxicated (which wouldn’t necessarily be a bad thing). What’s the First Amendment equivalent of the variety of licensing schemes, like Illinois’ “Firearms Owners Identification Card,” or the way some states don’t allow concealed carry to any citizen who isn’t law-enforcement? What’s the First Amendment equivalent of outright gun bans such as were in Morton Grove, or Chicago? What’s the First Amendment equivalent of Washington DC’s former ban, which allowed you to keep a gun in your home (if you owned it before a particular date), but disassembled. Would you have to keep your 8088 computer parts in separate boxes, in different parts of the home?
Guns are a tool, designed to accurately propel a bullet in a particular direction, just like hammers are designed to allow the user to increase their striking force. Any tool can be misused. Hammers can become murder weapons. People who are supposed to know better can misuse their weapon and authority (http://tinyurl.com/3lfv7jm). Cars are designed for a particular task, but can be misused. Doctors are supposed to heal people, but we let them kill over 100,000 people a year, and accept that as part of the risk of having doctors.
I have the right (and duty, some would say) to protect myself and family from people intent on doing harm. I’m not so paranoid as to think that there is someone intent on hurting [i]me[/i], but I know that there are people out there who look for targets of opportunity, and they may not obey weapons control laws any better than they obey laws against theft and assault. They may well be bigger and stronger than I am. I have the right to an effective means of defense against those people.
I don’t require that you carry or own a gun. I understand and accept that some people have a personal problem with lethal self-defense, and I’m not asking them to change that attitude on their level. But they should not impose that restriction on me, if I think I am prepared to deal with it. I don’t think that all people should have a gun, but I do have a problem with the lifetime firearms prohibition conferred against someone convicted of non-violent felonies and misdemeanors.
It’s not a simple thing here.
Thanks for your comments. You’ve probably given me enough material for about a dozen posts, but for the nonce, I’ll address just the most salient points.
My purpose here is not to discuss the possible merits or drawbacks of gun ownership, nor of any “gun control” measure. It’s theoretically possible that every regulation measure ever passed has been ineffective, or even counterproductive. But I’ve never heard of a single one that was unconstitutional.
Yes, you have the right and the duty to protect yourself and your family. But the question is, do you also have the right to use a gun to do so on U.S. soil? If so, it’s a LEGAL right, as conferred by the legislative process or (heaven help us) the courts, and not a constitutional right. The Constitution neither authorizes nor prohibits gun ownership.
We also can’t always assume the validity of “pre-existing” rights, except for life, liberty and the pursuit of happiness.. We’re not entitled to go on doing something just because it’s always been done; if we were, slavery would still be deemed legally and morally acceptable. THIS is where many people get into trouble; and it’s the source for much of the “historical context” argument. Historical context would tell us that the “people” who are entitled to “bear arms” are essentially white males.
Another major problem with the “historical context” argument is that it’s a bottomless pit. There is such a huge volume of historical documents available, that one could draw on them endlessly to support a pro or con position on just about any issue (much as people do with the Bible, a considerably smaller body of literature). And one can never be quite sure of having access to the whole picture.
Sure, history has its uses. It’s helpful to know what a militia was, what the earlier drafts of the Second Amendment said, and how it was punctuated. But do you really believe that the founders intended for us to go scrambling through numerous shelves full of history books in order to understand and apply every passage in the Constitution? That would defeat the very purpose of a constitution -which ideally is phrased specifically enough to be clear, and yet broadly enough to adjust to an unforeseen future.
If indeed I’m looking at the language of two centuries ago with the interpretations of today, then perhaps it’s because the gun propagandists are doing just the reverse: they’re trying to overlay today’s circumstances on the Eighteenth-Century concept of a militia.
Good point about the distinction between “actions” and “tools”. But don’t blame today’s “liberals” for the inequity. Blame the “liberals” who wrote the Constitution. “Arms” are tools , there’s no way around it. But in contrast to other tools, they have an extraordinary capability to inflict harm – that is, in fact, their very function.
It’s ALWAYS a flawed process to compare one thing to another, because no two things are exactly alike. But with regard to guns versus the other things you mentioned (cars, computers, medicine), the difference is paramount. Those things were all designed for constructive ends, and any destructive effect is incidental, the result of misuse. With guns, the opposite is true: they were designed for destruction, and the infliction of death and mayhem is the result of their being used for their intended purpose, while their use for constructive ends is incidental. This puts them in a class of their own, and makes them a very good candidate for intense regulation. And if computers caused comparable damage, then yes, they’d be subject to comparable scrutiny and restriction.
The best point you’ve made here is that this isn’t a simple issue. Accordingly, we can say without a doubt that the Constitution does not establish a simple right to own a gun.
By the way. Bob, I also want to say how refreshing it is – and I feel confident in saying this, having actually met you – to hear from a “conservative” (if that’s the correct label for you) who is intelligent, informed, mature and civil. All too often, they’re more like the next one…
You are right, Supreme Court (and over 70% of Americans — http://abcnews.go.com/Politics/story?id=120984&page=1) are wrong.
Funny how that works, isn’t it?
You certainly are a professor of tired, worn-out propaganda. Time for you and your fellow progressives to suck it up and “Move On.”
Now that you mention it, yes, I am right. Along with four Supreme Court justices. Not because we’re infallible, but because in discussing the Second Amendment, we’ve quoted what it actually says rather than what we wish it said. The other five justices are wrong, and I can’t help suspecting that they KNOW they are wrong. They may be unscrupulous, but it’s hard to believe they’re inept.
Speaking of ineptitude, citing public opinion polls is not a good way to impress me. 25% of Americans believe weapons of mass destruction were found in Iraq. About the same number believe that Barack Obama was born in Kenya, and about 15% believe he may be “the Anti-Christ”. 55% believe that any second now, a 2000-year-old Jewish hippie will swoop down out of the clouds and rescue them from the mess they’ve made. I deal with this kind of inadvertent humor all the time.
So when it suits you,
Quote liberal media;
Funny how that works…
From the CheeseFlap archives:
Big guns and cigars
Waved in America’s face
Don’t make you a man
As usual, CheeseFlap
is more on target than some
using far more words.
This struck me today, and I’m not certain if I’m on a reasonable track, but what about a Ninth Amendment interpretation here? “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I know Madison disapproved of trying to list certain rights, fearing that the list would be considered the only rights allowed, thus the Ninth was born/created/added. It says in my mind, “Just because we don’t list it here doesn’t mean you don’t have the right.” I haven’t quite figured out how the Ninth might fit in here, but it would tend to work against those who say “the Constitution doesn’t guarantee such-and-such.”
So back to my fourth paragraph. You commented that “they [guns] were designed for destruction, and the infliction of death and mayhem is the result of their being used for their intended purpose, while their use for constructive ends is incidental.” But one result of the infliction of death is the preservation of life. We allow law enforcement officers as agents of the State to take the life of someone who is a danger to the general public. Why can’t I have that same capability to protect myself and my family, and by extension, the general public?
I’d be curious to hear your thoughts on my comparison of restrictions, too. What restrictions on the First Amendment would be comparable to the Brady Law, or Chicago’s ban on handgun ownership?
I’ll grant you happily that a certain amount of regulation is needed. The rub lies in the definition of “reasonable,” and the government’s track record of changing the rules of the game with little consideration of the effects. Thinking here of the Sullivan Act, and bans in Chicago and DC. We’ve got more reason to doubt the ethics and honesty of those in charge than to trust them. I’m not a black helicopter believer here (although the accusations around Project Gunwalker are pretty damning. I’m just looking at the past performance.
I would assume that the police fall under the category of “militia”. In any case, they’re certainly different from civilians being armed. I may not be the right person to ask about why you shouldn’t be allowed to do what they do. I don’t make the rules (which might be a good thing). I just know how to read them. Perhaps you do have that right. But you won’t find it in the Second Amendment, not with the most powerful microscope on earth.
The Ninth Amendment? Hmmm… It brings to mind such things as the right to own property, to raise a family, to vote… somehow owning guns just doesn’t seem to fit, and I find it hard to believe that it would be so interpreted by an IMPARTIAL Supreme Court (one not dominated by justices in the pocket of the firearms industry). Still, it’s probably a better bet than the Second, although I’d say the Tenth is the closest the Constitution comes to laying the foundation for such a right.
I really don’t know what would be a First Amendment equivalent to the gun bans – prohibiting Fox from telling whoppers, perhaps? Actions vs. tools. Inherently destructive vs. inherently constructive. How do you draw an equivalence, and why would you need to?
First off, let’s start with the text of the Ninth Amendment:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The “right to keep and bear arms” is one of those enumerated (for those too stupid amongst you–it’s enumerated in the Second Amendment).
If one wants to go down the road where gun rights are protected by the Ninth Amendment, one winds up running into this quote (thank you, Wikipedia) from Griswold v. Connecticut, 381 U.S. 479 (1965):
[T]he Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights…. I do not mean to imply that the …. Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government….While the Ninth Amendment – and indeed the entire Bill of Rights – originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.
The problem, vis-a-vis Ninth Amendment jurisprudence, is that people have tried it too often in the past (as compared to Second Amendment jurisprudence) and been smacked down by the Establishment. The smackdowns have taken the form of decisions relegating the Ninth Amendment to being a rule of construction, rather than an affirmative rule which says “if you can think of a(n unenumerated) right, the Ninth Amendment protects it”. This history has resulted in a welter of precedent which will as a practical matter make establishing any protectible rights under the Ninth Amendment likely a wasted effort and failure. I mean, if Douglas said “no Ninth Amendment rights” in Doe v. Bolton, 410 U.S. 179 (1973), as he did and as Ginsburg (who was one of the attorneys in the mix there) surely knows, who are you going to get to say otherwise.
Of course, the Ninth Amendment is construed to protect abortion rights (and birth control), which is why this argument is unpopular. In fact, any reference to the Ninth Amendment automatically drags in all the reproductive rights cases – Palko v. Connecticut (302 U.S. 319 ), Griswold, Roe, you name it – and the sexual conduct cases – Lawrence v. Texas (inter alia). You can also add proper medical care is something which is a benefit to society whereas firearms ownership has its detriments.
Additionally, if you are going to argue armed self-defence is covered under the Ninth Amendment, you have to get over the hurdle that the doctrine of self-defence, as understood at the time of the Constitution, stated that only the force necessary to counter the threat was appropriate. In fact, carrying a weapon could be construed as you were looking for trouble!
So, Abortion is OK even though “isn’t mentioned in the Constitution”, but Ninth Amendment case law supports it.
“Gun rights” are not covered by the Ninth Amendment since it is enumerated in the Second Amendment.Why the Ninth Amendment doesn’t cover gun rights.
Thanks. interesting research and argument.
That’s what I do at MikeB’s, but you have some pretty good material yourself. Contact me if you need any legal research.
To the propaganda professor.
I wish I had the orating skills of a socrates,the ability to change the hearts and minds of men,simply by seemly going along with my opponent’s argument while injecting my own concepts and ideas. But I don’t so I will do it the good old fashioned American way and walk into the liberals lions den with both barrels loaded.
There are 4 ways you interpret the U.S.Constitution. The U.S.Constitution itself of course,Declaration of independence,Federalist papers and writings of the founding fathers.
Your first point: Where is the hardware: You consent that maybe you are authorized to keep a muzzle loaded musket in you closet. I contend that rights don’t change simply because technology advances. When it comes to freedom of speech are founding fathers only new of news papers,books,and letters. You wouldn’t out law t.v.s,radios or the Internet? Now about that musket. You used the word authorized as if your rights come from Government. The bill of Rights doesn’t authorize anything it limit’s Government.
Congress of the United States
begun and held at the city of New York,Wednesday the 4th
of march,one thousand seven hundred and eight nine
The Convention of a number of states having at the time of their adopting the constitution,expressed a desire,in order to prevent misconstruction or abuse its powers that further declaratory and RESTRICTIVE CLAUSES SHOULD BE ADDED.Twelve amendments were proposed 10 were adopted and became the Bill of Rights. That in itself should answer the question that the right of the people to keep and bear arms means exactly that.The people have the right to keep and bear arms. To keep Government under control with that uneasy fear of the armed individual or a group of individuals known as militia.
Second point: To have and to hold: 10th Amendment states:
The power not delegated to the United States by the constitution,nor prohibited by it to the states,or reserved to the states respectively or to the people. If it is not specifically addressed in the U.S.Constitution then the federal Government has no say so on the issue one way or the other. Of course though it is addressed, The right of the people to keep and bear arms equals ownership and the right to use them. This is understandable by any one with the meanest capacity and understanding.
Third point: The four letter word: I will address your comment on the bazooka first. If you think the second amendment doesn’t mean that people can arm themselves as they see fit and at all times. I suggest you turn on the t.v. and look south to the border,civilizations veneer is to thin for that kind of naive thinking.
I can guarantee you the drug cartels have bazookas at the very least. I can also guarantee you that if the Mexican people were armed as Americans. Those mass graves of the innocent they keep finding would have a whole lot more drug thugs in them. If that failure of Government spills across the border,you just might want that bazooka to defend yourself,neighbors and nation. And small arms allows you to acquire heavy weaponry alot easier by taking them away from your enemys.
As for the NRA seeking profit first. No other economical system has risen man out of the mud muck and slime of tyranny,to the never-ending quest of intellect,truth,self-worth and understanding than capitalism.And the second amendment backs it up and says DON’T TREAD ON ME.
As for WELL REGULATED it means WELL TRAINED WELL, DISCIPLINED. As any young girl or boy could tell you as they learn the basics of marksmanship and safety.
You said that speech is devised for communication,for building relationships,for enshrining ideas,for artistic expression,for many things that exalt the humane condition.Couldn’t agree with you more. But speech can also be used for evil,just look at Adolf hitler who first with speech and then through force led a nation into a degree of evil that would make hell jealous. By the way he also had guns first registered,thereby knowing who had them and where. Then came out right confiscation. Then he rounded up all the jews he could find,had them loaded into box cars and sent to concentration camps. How many of those Jews do you thin would have walked into those box cars had they been armed.
You can probably guess I’am no fan of President Obama I think he can’t put 2 sentences together with out a teller promoter and has big old funky ears. I can say that because there are 80,000,000 gun owners in America who strike an uneasy fear into the heart of Government. Don’t belive me try going to Venezuela and say that about hugo javes who will swear on a stack of bibles his nation has free speech.
4th point militia intent: U.S. Constitution Article 1 section 8 states:
TO PROVIDE FOR CALLING FORTH THE MILITIA, and governing such part of them as may be employed in the service of the United States,reserving to the states respectivly,the appointment of officers and the authority of training the militia according to the disciplined prescribed by congress.
It’s very hard to call forth the militia if it dosn’t exist.( “I ask you sir what is the militia. It nis the whole of the people. To disarm the people is the best and most effectual way to enslave them”) George Mason Co author of the second Amendment.
The whole of the people the butcher at the corrner butcher shop,the clerk at the grocery store,the pharmacist at the drug store,the man or woman who finds a lost dog and retuns it to it;s owner,The American people who don’t wait on Government but willing lend a hand to tornado victims,all those who help there fellow man just because they can.and the first to take up arms when government fails to protect them, their familys,neighbor and their nation.
One more definition: U.S.Code-title 10 sec.311 Militia and classes:
A. The Militia of the United States consist of all able-bodied males 17 years of age,except as provided in section 313 of title 32,under 45 years of age who are or who have made a declration of intention to become citizens of the United States and female citizenswho are members of the national guard.
B. The classes of militia are. 1. The organized militia which consist of the national guard and the naval militia.
2. The unorganized militia,which cosist of the members who are not members of the national guard. (in othern words you)
As far as your comment on the 3rd Amendment the reason you never hear anything about it. Is precisely because we have a 3rd Amendment.
5th point:The placement of comas: First the science of linguistics hadn’t been invented at the time the secon amendment was written. It was invented by noam chomsky who was born Dec 7 1928. Further A Well regualted militia being necessary to the security of a free state, Is a preamble stating one of the may reasons people have the right to keep and bear arms. For more clarification the 9th and 10th amendments also give you the right to hunt.fish and take on gang members.
The words the state and the people are found throughout the bill of rights. When the framers meant states they gave the states powers,when they said the people they were unalienable rights.
In one of your responses to a coment you said historical context would tell us that the “people” who were entitled to “bear arms” are esentially white males . You would have truly disapointed me if you hadn’t thrown this race card out. First of all we had a great civil war were more people died than all are other wars combined. The vast majority of those who spilled ther blood on the battle field were white. After the war was over,the southern states enacted “black codes” wich embodied the old slave laws including a ban on gun ownership by black people. To protect the rights of the freed salves from such laws. In 1866 Congress proposed the adoption of the 14th Amendment wich protects citizens rights from state vilolators. IN SHORT YOU CAN’T LYNCH AN ARMED BLACK MAN.
The U.S.Constitution is of divine providence.Historically every thing was against it’s creation. Common sense is Absolutely necessary for it’s preservation.(“A Bill of Rights may be considered not only as intended to give law, and assign limits to Government but as giving information to the people so that every man of the meanest capacity and understanding may learn his own rights,and know when they are violated”) (St.George Tucker leagal sholar of the secon amendment 1752-1827)Every citizen must become a states man. the wise states man will always be armed. Thank You Rex Barber Ketchikan Alaska.
Probably the worst thing I can do for your personal PR is just to let your comments speak for themselves. But I appreciate your giving me a great deal of material to cover, enough for about 100 future posts. You seem to have steeped your head in a barrel of mythology for years. Hitler was strict on gun control and confiscated firearms? Nope, sorry. Obama is strict on gun control and can’t communicate eloquently without a teleprompter? You haven’t been paying attention at all. (Except to his ears, obviously.) Linguistics was invented by Noam Chomsky? You’re only off by about 2500 years. Capitalism is the noblest of social dynamics? The main purpose of being armed is to protect yourself against the government?
Please, do your country a big favor: stay in Alaska.
By the way, it’s interesting to note how, time and again, those who try to defend their misconceptions about the Second Amendment do so by pointing out the supposed need for firearms, as if need and constitutionality were synonymous.
Alaska realy seems to have struck a nerve here. All you realy did was strike down a few irrelevent hiatorical inacuracys. But alaska does make alot of valid points that are consistant with my reasearch. I would like to know if you have anilitical responce rather than an emotion one.
There was nothing the least bit emotional, nor was there any nerve struck. I was just suggesting that this commenter, being as misguided as he was, would do the least bit of damage to the nation by remaining in Alaska, which is remote and slightly populated, and has few electoral votes. I’ll be covering the Second Amendment myth more in a future post.
Professor, you are correct in your analysis. The Second Amendment has been twisted from a guarantee that there would be a Swiss Style military for the US to people trying to demand a right for anyone to carry whatever weapon they want where ever they want. That couldn’t be further from the truth.
As anyone who is a student of propaganda knows the best way to drown out any dissent is to make sure the one message that wants to be reinforced is repeated as much as possible. Dissenting voices are silenced.
Try to find this article by Henry Mayer: A PATRICK HENRY ESSAY(No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY. It seems to have been expunged from the internet.
I have written quite a bit about this topic, which makes me part of a small, subsersive lot on the internet.
You might find this post by me to be interesting:
I think the people who talk about “freedom” in relation to the Second Amendment are hypocrites for precisely the reason you mention–the Second Amendment was amended by judges thwarting the constitutional process.
Funny, but there is very little comment made about that.
But, proaganda works through emotion short circuiting reason.
So, the progun side keeps talking about freedom, liberty, and other visceral terms.
While real rights are being obliterated.
Thanks, well said. Always encouraging to hear another voice of sanity.
I am rather disappointed in this site. I came hoping to find a site that discussed all sides of an issue and came to conclusions through thought. Sadly it appears that this is a site of propaganda that the only discourse is with those that agree with you.
The sad thing is I agree with alot of what you have to say, just don’t agree with your approach and disparagement of those who do not follow your particular bias
sad, so very sad
My “approach” is to ferret out the facts. My “bias” is truth. If that constitutes “disparagement”, then I’m sorry to disappoint you. And “agreement” is irrelevant. Either you accept the facts or you don’t. As for covering both sides, factual error is already quite adequately represented, or else there wouldn’t be any need for this site.
I like your approach of actually looking at the legal text(s) a lot. Unfortunately, any argument against aussault rifles and other liberal stuff seems to always fall on deaf ears.
Just to add a personal standpoint (and I don’t mean to deviate from your approach), it just annoys me how certain things boil down to “liberals” trying to “take away” something from the “conservatives”. The whole “taking away” argument seems utterly childish, Why would we care whatever they hug when they go to sleep (fetuses, guns, the bible…)? It’s more about preventing insane people from getting their hands on military grade armor. I’d be willing to give up something, or make certain things a lot harder to get, if it meant that the people who died on Friday, would still be with their families.
Like in so many instances, the right plays the emotional card, but from the wrong perspective. Theirs is the selfish and *not* the altruistic approach.
Exactly. My approach also often involves examining how people use language, often in ways that manipulate other people or allow themselves to be manipulated. Your examples of “liberals” and “taking away guns” are prime specimens that we see in action quite a lot.
Way too many US shootings of multiple innocents by young troubled men with unfettered access to semi-auto guns and ammo. (20 dead 6 year olds this week in CT)
We can’t legally buy AR-15s and large mags in Walmart (or anywhere) in Canada. We also have a frontier and hunting tradition and our long gun registry didn’t work either. We’re far from perfect and I hope you can sort this one out.
The second amendment seems to me a constitutional self inflicted wound…
God help America
Well put. But as I’ve pointed out elsewhere, it isn’t really the Second Amendment itself that has inflicted the damage — it’s the tortured interpretations of it that have now become the law of the land.
Doesn’t the right to abortion (which I completely agree with) come from a ‘tortured’ right to privacy? I’m not sure what is right in terms of gun control but we can’t have our cake and eat it too… what say ye?
As I understand your question, you’re asking whether the right to own a gun isn’t just as valid as the right to an abortion, since both hinge on interpretations of the Constitution. Well, sure. Neither right is spelled out in the Constitution; and although I support reproductive choice, I wouldn’t NECESSARILY agree that it’s a “right” protected by the Constitution. But on the other hand, the right to privacy is much more broad and basic than the right to own a gun.
You need to read the meaning of words, when they were written. word meanings have changed, but the intent of the constitution and bill of rights hasn’t.
Word meanings change, when I was a kid, not that many years ago, “gay” meant happy/carefree, now it means a homosexual.
If you read a book from the 1800’s and it says a person was gay, do you use the current meaning of the word? NO, you go back to the original meaning.
Same with the wording of the constitution and the bill of rights
Start with “well-regulated”, you don’t seem to have a clue as to what that meant at the time of the writing of the 2nd. It was, as said before, well trained, the part about the right of the people to keep and bear arms was put there to ensure the people would know how to use arms.
As for the term “arms”. Even today the term stands for ALL types of weapons. Those of us that have been members of the “Profession of Arms” know and understand that. Try looking it up, pretty dary simple. Probably beyond your capacity to understand.
Word meanings do indeed change. But historical facts do not, no matter how hard people try to rewrite them.
i agree with the writer of this blog…..the NRA and other organizations (i.e arms dealers and traders) have interpreted the 2nd amendment for the sole purpose of lining their bank accounts
that the first line of defense is the self. Protecting ylesruof against bodily or property harm starts with YOU, the armed citizen! Calling 9-1-1 is great for initiating the judicial process AFTER someone’s rights were violated… but an armed individual PREVENTS their rights from being violated!The right to keep and bear arms is an essential right… any candidate who states that they will directly work to usurp my ability to defend myself in favor of a state run “protection” policy will be met with a passionate and vocal protest in the form of ME!Keep fighting the good fight!
[…] Gun Uses Reasonably; (3) Make My Day: Mention Gun Defense “Statistics”; and (4) The Myth of Constitutional “Gun Rights” ; a Second Look at the Second Amendment. Noticing a pattern here? A large percentage of the readers of these posts have been not so much […]
You display outstanding ignorance of this topic. I couldn’t make it past the part where you actually thought “well regulated” meant actual regulation without tearing up. Let me break this down for you, if you want to talk about the language of the Second Amendment:
First off, let’s start off with the purpose of the Second Amendment: to protect against tyranny. If a tyrant gets to power, and the citizenry start an Insurgency, they’ll need an organized force. That’s why the militia is in the Second Amendment, but who are the militia? George Mason tells us:
“I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
So the militia are the whole of the People. An armed group of citizens; that’s a militia. Now the “well regulated” bit that cracked me up? What “well regulated” meant was well trained, WELL ARMED, and/or well organized. If put into today’s language, the Second Amendment would read as such:
“A militia, being necessary in protecting the People against tyranny, must be well regulated. The People, being the militia themselves, have the right to keep and bear arms, and that no law shall be made abridging this freedom.”
Well, I guess my ignorance will have to remain intact, because you have not enlightened me about either semantics or history — you’ve merely recirculated the same soundbites the gun culture has been spouting for years. I’ll be posting another session of my ignorance on this topic in the near future, by the way, that will go into even more detail. So stay tuned. If the first one made you crack up, the second will absolutely make you crap your pants.
Try me, Professor. Your arguments are the same as what I find on Daily KOs and Mother Jones. Oversaturated with rhetoric and not enough source. In the meanwhile, while you’re writing an article that’ll make me crap my pants, take a look at this sentence structure diagram:
Oops. Straw man alarm. “Collective” vs. “Individual” right isn’t really the issue, and this little diagram’s cute attempt to redefine terms doesn’t solve any problems. Mother Jones, by the way, is generally quite well sourced.
That’s the issue, Professor. Is the 2nd Amendment a collective right reserved to the militia or an individual right reserved to the citizenry. My “cute” little chart was drawn up by a real Professor, A.C. Brockl. Not some pseudo-intellectual, cherry picker with a blog.
Mother Jones is a joke. First article I read cited the Kellerman study. HA!
Oh, and I fail to see how the chart redefines anything. Considering you did that with “well regulated”, you aren’t in any place to tell what’s being redefined.
You may consider Mother Jones and the content here a “joke”, but you have yet to present anything less humorous. And I did not redefine anything — I pointed out that gunsters are latching onto a very narrow meaning of the word “regulate” and setting up a false dichotomy that excludes any other nuances of that word.
And even if we suppose that there is an individual right to own a gun, it doesn’t establish the purpose for that right. That’s what the Second Amendment does, and even the radical justices on the Supreme Court concur that the “right” is not absolute.
I’m not going into detail here about your cherry-picking, distortion and false logic regarding the George Mason quote — as it happens, that will be covered in my next post on the subject. And if I spent a great deal of time responding to every hotshot who believes he has a gotcha I haven’t already considered, I’d have no time for writing such posts.
“…even though the Constitution unequivocally states that arms not only can be regulated but well regulated.”
Sounds to me like you tried to redefine it.
And I disagree with the ruling that no rights are absolute. All rights are absolute and they end where the rights of other begin. Yelling “fire” in a movie theater is directly threatening the lives of others; me owning an “assault weapon” does not. The found father’s established the purpose for the right in their debates at the convention and in the Declaration of Independence. Perhaps, if you can debunk a quote from James Mason. Maybe you’d take a quote from Patrick Henry:
“A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms.”
1. I quoted the exact words of the constitution, and I pointed out the most common interpretation of those words. Hardly “redefining”.
2. The ruling was not about “all rights” but specifically the alleged right to own guns. You say you believe all rights are absolute, then you quote an instance in which the right of free speech is not. There are others (slander and libel, for instance). If you believe the right to own arms is absolute, that’s your choice. But you’re at odds with the very right-wing justices who made the right to bear arms a reality.
3. How do we know that your owning an assault weapon is not a threat to others? We have your word… and what else? Can you guarantee that it’s not a threat for ANYONE to own such weapons?
4. The quote from Patrick Henry, like many similar quotes, correctly stipulates that all (white) MEN capable of bearing arms were expected to be available for militia service. So what? Doesn’t say anything about owning guns. Doesn’t say anything about using guns for any other purpose. And it doesn’t define militia — it just specifies a militia’s constituents. The concept of a militia that the framers alluded to is now obsolete. There’s no reason to automatically assume that any “right to bear arms” associated with it survives.
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If YOU want to turn YOUR gun over to the police, or choose not to own any…don’t expect ME to save your arse when you need help.
Signed crack shot lady gun owner.
Besides that, you have missed the whole point of the Constitution’s wording on the right to bear arms. You idiots….
Thank you. I have one fewer headache knowing I don’t have to depend on you to defend me. By the way, I suggest you stay tuned. There will be more on the Second Amendment, demonstrating how in fact it is the gun culture that has missed the point.
Nice presentations. I’ll reach out now for the depth and content you show.
The coffee’s on me, POP. Care for a bit of hiking? Where do we meet?
Coffee? Jeez, that would be like getting paid to write this blog. I’m not sure I could handle that.
P.O.P., I would have to completely disagree with your interpretation of the Second Amendment. I’ll address your points one-by-one:
1) You say that the 2nd “confers” a right. The 2nd doesn’t confer anything, nor do any of the rest of the Bill of Rights, onto the people. They protect what are seen as pre-existing natural rights from our Creator. Then you mock the claim that the 2nd protects the right that makes all others possible. The reason for that argument is that in a state of nature, your first right, before any of the others can be exercised, is your right to self-defense, and being that human is a tool using primate, hence the tools of self-defense. No one cares about your right to your body, your right to free speech, freedom of religion, privacy, etc…other humans will kill you or animals will eat you (some humans will eat you too!). The right that protects all of your other rights is the right to arms.
2) You then take issue that the word “gun” is not mentioned in the Second Amendment. Well why would it be? “Arms” back then consisted of firearms along with knives, swords, etc…firearms are just one form of arm. But also, you might as well be saying that the First Amendment says nothing about computers, typewriters, printers, copy machines, fax machines, pens, pencils, paper, etc…
3) Next you mention about ownership not being there. But that was on purpose. If the 2nd said you have the right to own weapons but nothing about keeping, then laws could be written saying that you have a right to own weapons, sure, but you must keep them in a centralized location. Sort of like aircraft. You can own aircraft, but most aircraft must be kept at an air field.
4) Then you mention about the phrase “well-regulated.” You say that guns are phallic substitutes and that the Constitution says that guns are to be well-regulated. I can tell you that guns are not phallic substitutes. Sure, for some men they might be, but plenty of men own guns for whom they aren’t penis substitutes. It’s like saying every guy who owns a sports car or big truck owns it to compensate for something. Regarding saying that the government can regulate arms, the thing is, the Constitution actually says no such thing.
You need to first take into account just what the phrase “well regulated” meant. The phrase “well regulated” is incredibly easily understood when one just looks at its usage in the language of the time. One can find references to a well regulated society, a well regulated government, a well regulated machine shop, a well regulated school (both of these before the era of formal government regulation), a well regulated drawing room, a well regulated hairstyle, a well regulated country (Virginia ratifying convention), well regulated communities (Virginia ratifying convention), etc…basically “well regulated” just meant “well functioning” or “well designed.”
The phrase “well regulated militia” is used in the prefatory clause of the amendment, which was a common method of writing back then in order to make a declaration. It was not a conditional clause. There are some who claim that the prefatory clause was conditional, and that the operative clause accomplishes the prefatory clause, but even then, that still doesn’t undermine the individual right argument, because one can easily reason that the operative clause (“the right of the people to keep and bear arms shall not be infringed”) accomplishes the protection of the ability to have any semblance of a well regulated militia.
An example could be an amendment that read as follows:
“A well educated electorate being necessary to the preservation of a free society, the right of the people to read and compose information shall not be infringed.”
Clearly such an amendment would not be claiming that only those who are members of some formal, government-defined “well educated electorate” have the right to read and compose information. It is rather a declarative statement, stating the importance of protecting the individual right to read and compose information, namely that if you expect to have any semblance of a well educated electorate, the right must be protected. Similarly with a well regulated militia. It is unreasonable to expect either the militia to have the characteristics of well regulated troops (per Hamilton in Federalist 29) or to expect the electorate to be well educated, but the rights must be protected nonetheless.
5) Next you claim that the NRA is about profit. The thing is, the NRA doesn’t make profit from gun sales. It is not, contrary to the popular view held by many, an industrial gun lobby. It is rather a civil rights organization (America’s oldest in fact). And while the gun manufacturers do give it money, the majority of its money and influence comes from its members and many more non-members who nonetheless support its basic mission.
If you don’t believe me, just look at the size of the gun manufacturing industry. It is about $12 – $15 billion dollars. By comparison, you have individual companies in other industries that make revenues of $20, $30, $40, etc…billion, and others that make hundreds of billions. The oil industry, financial and banking industry, defense industry, retail industry, etc…those are serious lobbies. There is no way a little $12 – $15 billion industry is going to somehow give the NRA the kind of political influence that it has. You might think the NRA’s influence is due to the money it spends, but again, that is only a part of it. For example, Michael Bloomberg routinely outspends the NRA. Yet, he consistently has been defeated by the NRA in many things as well. The NRA’s power comes from the grassroots. It has nothing to do with selling guns.
6) You make a comparison with free speech, mentioning laws against slander, libel, perjury, and fraudulent advertising. That is true. And there are also laws against shooting, maiming, killing, etc…people unless in self-defense. You claim that speech is not comparable to the right to arms, but I disagree. Speech is for communication and exalting the human condition, sure, but it also can be used to really inflict pain onto people (teasing, mockery, etc…) and can even lead to wars. It can be used for either good or evil. Guns are no different. Yes, they are for killing animals and people. So what? That can either be for self-defense or for evil purposes. And the world will always have evil on it so long as humans exist.
You make the analogy of, “Well-regulated transportation being necessary for efficient living in the modern world, the right of the people to operate vehicles shall not be infringed.” I would argue that if the phrase “well regulated” was being used in its original meaning, then yes, the government would be a good deal barred from requiring things like licensing. No they would not be barred from making laws about felons, but no one argues against gun laws regarding felons either. In modern English, “well regulated transportation” would translate to “well functioning transportation” or “good quality transportation.” And it would be very clear from that that the prefatory clause in such an amendment was a declarative statement. BTW, right to travel is also a fundamental right of nature and let’s face it, the requirements for getting a driver’s license are mostly a joke. If they truly required people to meet any kind of serious standards, the functioning of society would be inhibited because too many people would be barred from driving. The real reason for driver’s licenses is so the government has a way to keep tabs on the population.
7) Next you bring up the militia. The militia has not been supplanted by today’s National Guard. Although not of much concern right now, if the country got invaded, or if a tyranny formed, or if an insurrection occurred, the militia could very much play a significant role. The militia, BTW, is the general population capable of bearing arms. This is shown via numerous writings from the time, but an important one that shows this is via Alexander Hamilton (an ardent promoter of a federal government much more powerful than the one the Constitution created) in Federalist Paper 29, in which he writes about the militia where it is extremely clear that the militia is the general population. Second is the constant usage of the term “the militia.” No where is it ever spoken about “the militias” or “the state militias.” This also becomes clear in the Virginia ratifying convention at the time speaking about concern over the creation of “select militias” which it was said would be more thoroughly exercised than the “militia at large” could ever be. If the word “militia” already refers to select state militias as gun control proponents claim, then what are they speaking of? What is “the militia at large” then?
8) You bring up a prior wording of the amendment that was proposed that had more commas in it. But I would have to disagree that those commas change the meaning of the amendment at all. “A well regulated militia” is no more made the heart of the amendment than in the version that was ratified. It remains a declarative statement, not a conditional statement. This is also shown in the meat of the amendment, i.e. “the right of the people to keep and bear arms shall not be infringed.” The operative clause uses the very language found everywhere else in the Constitution that refers to individual rights. In addition, the 2nd Amendment is second in a bill of rights that was only created because the anti-Federalists refused to ratify the Constitution without one, and the anti-Federalists were very pro-arms. Note also that when the Constitution talks about states rights, it refers to “the states” and never “the people. Finally, it would have been pretty foolish of the Founders to use the language that commonly was used to make a declarative statement first as a way to create a conditional statement for the 2nd Amendment.
I do agree that just writing “the right of the people to keep and bear arms shall not be infringed” would have been simpler, but declarative statements (prefatory clauses) were common back then and a well regulated militia was seen as very important for the nation. If you and I were forming a country and wrote an amendment about protecting the right to read and write, we might well at the time have worded as the example I gave earlier, where we mention the importance of a well educated electorate as a declarative statement, and then follow with the meat of the amendment, i.e. the right of the people to read and compose information shall not be infringed. Regarding the part about no person religiously scrupulous being required to bear arms, that was just in respect for religious beliefs, as not everyone believes in fighting.
9) The Second Amendment has nothing to do with states rights or the National Guard. Nor is the National Guard a state militia. The National Guard is federally-funded, federally-trained, operates on federally-owned land, uses federally-owned weapons, equipment, vehicles, clothing, buildings, and enforces federal law. It is not a state militia. In fact, if you actually apply the interpretation of the Second Amendment that the dissent stated in DC v Heller, i.e. that the amendment protects an individual right to keep and bear arms that is conditional on being part of a state militia, such an interpretation would neuter federal gun control laws. Because the argument is that the states have a right to maintain state militias to check a federal tyranny. So one could not then also argue that the federal government has a right to dictate to said states how their militias (meant to check said federal government) are to be armed. So basically states like Texas and Kentucky could create their own state militias that anyone could join and then buy and keep any weapon they wanted.
10) The five justices on the Court who ruled in favor of the individual right interpretation of the Second Amendment explain much of their reasoning and did not just “decree” as you claim. In addition, there is nothing new about the individual right interpretation. It was how the Second Amendment was always understood up until the early-to-mid 20th century, when progressives in the legal system basically decreed out of whole cloth that it was about a right of states (even though there is nothing in the history of the amendment to support this).
11) There is no right whatsoever for the militia (the armed citizenry) to pillage, rape, and demolish at will. If anything, one of the main reasons Congress has the power to call forth the militia is to be able to put a stop to such things. There is a big difference between resistance to a tyranny and an insurrection. Historically, tyrannies and insurrections (i.e. groups of people who felt that they had been shorted by the political process and decided that they were going to try and overthrow the whole system) were two of main threats to republics. Thomas Jefferson, in the Declaration of Independence, which was signed by all the Founders, says that,
“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Now yes the Declaration isn’t binding law, but it shows the thinking of the Founders on this. Overthrow of the government is only for the most extreme of circumstances. It is not because some guy thinks Obamacare is tyrannical and decides to try and get together a group of yahoos with rifles and go try to storm Washington (that would be where, if required, the militia could be called up by Congress to stop it).
Your opinions are misguided, and I’ll be discussing these points more later. But I must applaud you for expressing them with civility and eloquence, which many gun enthusiasts do not.
[…] let’s consider the Second Amendment in more detail. We’ve touched on this topic in a previous discussion, but it was hardly exhaustive. In fact, it was quite cursory, and was designed to show […]