1. The Second Amendment codifies a pre-existing right
2. The Second Amendment protects individual, not collective rights
The use of the word "militia" has created some confusion in modern times, because we don't understand the language as it was used at the time the Constitution was written. However, the Supreme Court states in context, "it was clearly an individual right" (p. 20). The operative clause of the Second Amendment is “the right of the people to keep and bear arms shall not be infringed,” which is used three times in the Bill of Rights. The Court explains that "All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" (p. 5), adding “nowhere else in the Constitution does a 'right' attributed to “the people” refer to anything other than an individual right" (p. 6).
3. Every citizen is the militia
To further clarify regarding the use of the word "militia," the court states “the ordinary definition of the militia as all able-bodied men” (p. 23). Today we would say it is all citizens, not necessarily just men. The Court explains: “'Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else" (p. 9). Since the militia is all of us, it doesn't mean “only carrying a weapon in an organized military unit" (p. 11-12). “It was clearly an individual right, having nothing whatever to do with service in a militia" (p. 20).
4. Personal self-defense is the primary purpose of the Second Amendment
We often hear politicians talk about their strong commitment to the Second Amendment while simultaneously mentioning hunting. Although hunting is a legitimate purpose for firearms, it isn't the primary purpose for the Second Amendment. The Court states “the core lawful purpose [is] self-defense” (p. 58), explaining the Founders “understood the right to enable individuals to defend themselves ... the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury' (p.21). They conclude "the inherent right of self-defense has been central to the Second Amendment right" (p.56).
5. There is no interest-balancing approach to the Second Amendment
Interest-balancing means we balance a right with other interests. The court notes that we don't interpret rights this way stating “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all” (p.62-63). This doesn't mean that it is unlimited, the same as all rights (more on that below). However, the court states that even though gun violence is a problem to be taken seriously, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table" (p.64).
6. The Second Amendment exists to prevent tyranny
You've probably heard this. It's listed because this is one of those things about the Second Amendment that many people think is made up. In truth, this is not made up. The Court explains that in order to keep the nation free (“security of a free state”), then the people need arms: “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny" (p.24-25). The Court states that the Founders noted "that history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents" (p. 25). At the time of ratification, there was real fear that government could become oppressive: “during the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive" (p.25). The response to that concern was to codify the citizens' militia right to arms in the Constitution (p. 26).
7. The Second Amendment was also meant as a provision to repel a foreign army invasion
You may find this one comical, but it's in there. The court notes one of many reasons for the militia to ensure a free state was “it is useful in repelling invasions” (p.24). This provision, like tyranny, isn't an everyday occurring use of the right; more like a once-in-a-century (if that) kind of provision. A popular myth from World War II holds Isoroku Yamamoto, commander-in-chief of the Imperial Japanese navy allegedly said “You cannot invade the mainland United States. There would be a rifle behind every blade of grass.” Although there is no evidence of him saying this, there was concern that Japan might invade during WWII. Japan did invade Alaska, which was a U.S. territory at the time, and even today on the West Coast there are still gun embankments from the era (now mostly parks). The fact is that there are over 310 million firearms in the United States as of 2009, making a foreign invasion success less likely (that, and the U.S. military is arguably the strongest in the world).
8. The Second Amendment protects weapons "in common use at the time"
The right to keep and bear arms isn't unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited” (p. 54). The Court upheld restrictions like the prohibition of arms by felons and the mentally ill, and carrying in certain prohibited places like schools and courthouses. What is protected are weapons "in common use of the time" (p.55). This doesn't mean weapons in common use “at that time,” meaning the 18th Century. The Court said the idea that it would is “frivolous” and that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (p.8). The Court's criteria includes weapons in popular widespread use “that [are] overwhelmingly chosen by American society" (p. 56), and “the most popular weapon chosen by Americans” (p. 58).
9. The Second Amendment might require full-blown military arms to fulfill the original intent
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This article also appears on PolicyMic. (Original publication February 8, 2013).
The Constitution doesn't grant or create
rights; it recognizes and protects rights that inherently exist. This
is why the Founders used the word "unalienable" previously in the
Declaration of Independence; these rights cannot be created or taken
away. In D.C. vs. Heller,
the Supreme Court said the Second Amendment “codified a pre-existing
right. The very text of the Second Amendment implicitly recognizes the
pre-existence of the right and declares only that it “shall not be
infringed ... this is not a right granted by the Constitution” (p. 19).
The use of the word "militia" has created some confusion in modern times, because we don't understand the language as it was used at the time the Constitution was written. However, the Supreme Court states in context, "it was clearly an individual right" (p. 20). The operative clause of the Second Amendment is “the right of the people to keep and bear arms shall not be infringed,” which is used three times in the Bill of Rights. The Court explains that "All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" (p. 5), adding “nowhere else in the Constitution does a 'right' attributed to “the people” refer to anything other than an individual right" (p. 6).
3. Every citizen is the militia
To further clarify regarding the use of the word "militia," the court states “the ordinary definition of the militia as all able-bodied men” (p. 23). Today we would say it is all citizens, not necessarily just men. The Court explains: “'Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else" (p. 9). Since the militia is all of us, it doesn't mean “only carrying a weapon in an organized military unit" (p. 11-12). “It was clearly an individual right, having nothing whatever to do with service in a militia" (p. 20).
4. Personal self-defense is the primary purpose of the Second Amendment
We often hear politicians talk about their strong commitment to the Second Amendment while simultaneously mentioning hunting. Although hunting is a legitimate purpose for firearms, it isn't the primary purpose for the Second Amendment. The Court states “the core lawful purpose [is] self-defense” (p. 58), explaining the Founders “understood the right to enable individuals to defend themselves ... the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury' (p.21). They conclude "the inherent right of self-defense has been central to the Second Amendment right" (p.56).
5. There is no interest-balancing approach to the Second Amendment
Interest-balancing means we balance a right with other interests. The court notes that we don't interpret rights this way stating “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all” (p.62-63). This doesn't mean that it is unlimited, the same as all rights (more on that below). However, the court states that even though gun violence is a problem to be taken seriously, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table" (p.64).
6. The Second Amendment exists to prevent tyranny
You've probably heard this. It's listed because this is one of those things about the Second Amendment that many people think is made up. In truth, this is not made up. The Court explains that in order to keep the nation free (“security of a free state”), then the people need arms: “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny" (p.24-25). The Court states that the Founders noted "that history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents" (p. 25). At the time of ratification, there was real fear that government could become oppressive: “during the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive" (p.25). The response to that concern was to codify the citizens' militia right to arms in the Constitution (p. 26).
7. The Second Amendment was also meant as a provision to repel a foreign army invasion
You may find this one comical, but it's in there. The court notes one of many reasons for the militia to ensure a free state was “it is useful in repelling invasions” (p.24). This provision, like tyranny, isn't an everyday occurring use of the right; more like a once-in-a-century (if that) kind of provision. A popular myth from World War II holds Isoroku Yamamoto, commander-in-chief of the Imperial Japanese navy allegedly said “You cannot invade the mainland United States. There would be a rifle behind every blade of grass.” Although there is no evidence of him saying this, there was concern that Japan might invade during WWII. Japan did invade Alaska, which was a U.S. territory at the time, and even today on the West Coast there are still gun embankments from the era (now mostly parks). The fact is that there are over 310 million firearms in the United States as of 2009, making a foreign invasion success less likely (that, and the U.S. military is arguably the strongest in the world).
8. The Second Amendment protects weapons "in common use at the time"
The right to keep and bear arms isn't unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited” (p. 54). The Court upheld restrictions like the prohibition of arms by felons and the mentally ill, and carrying in certain prohibited places like schools and courthouses. What is protected are weapons "in common use of the time" (p.55). This doesn't mean weapons in common use “at that time,” meaning the 18th Century. The Court said the idea that it would is “frivolous” and that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (p.8). The Court's criteria includes weapons in popular widespread use “that [are] overwhelmingly chosen by American society" (p. 56), and “the most popular weapon chosen by Americans” (p. 58).
9. The Second Amendment might require full-blown military arms to fulfill the original intent
The Court didn't rule specifically on this in D.C. vs. Heller,
but noting that weapon technology has drastically changed (mentioning
modern day bombers and tanks), they stated “the conception of the
militia at the time of the Second Amendment’s ratification was the body
of all citizens capable of military service, who would bring the sorts
of lawful weapons that they possessed at home to militia duty. It may
well be true today that a militia, to be as effective as militias in the
18th century, would require sophisticated arms that are highly unusual
in society at large" (p. 55).
They further added that “the fact that
modern developments [in modern weaponry] have limited the degree of fit
between the prefatory clause and the protected right cannot change our
interpretation of the right" (p. 56). A full ruling has not been made,
as this was not in the scope the court was asked to rule on in the D.C. vs. Heller case, but they left the door open for future ruling.
By Matt MacBradaigh. Matt
is a Christian, Husband, Father, Patriot, and Conservative from the
Pacific Northwest. Matt writes about the Second Amendment, Gun Control,
Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.
Follow Me on Twitter: https://twitter.com/2AFight
Follow Me on Facebook: https://www.facebook.com/2ndAmendmentFight
9 Things You Didn’t Know About the Second Amendment
1. The Second Amendment codifies a pre-existing right
The Constitution doesn’t grant or create rights; it recognizes and protects rights that inherently exist. This is why the Founders used the word “unalienable” previously in the Declaration of Independence; these rights cannot be created or taken away. In D.C. v. Heller, the Supreme Court said the Second Amendment “codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed … this is not a right granted by the Constitution” (p. 19).
2. The Second Amendment protects individual, not collective rights
The use of the word “militia” has created some confusion in modern times, because we don’t understand the language as it was used at the time the Constitution was written. However, the Supreme Court states in context, “it was clearly an individual right” (p. 20). The operative clause of the Second Amendment is “the right of the people to keep and bear arms shall not be infringed,” which is used three times in the Bill of Rights. The Court explains that “All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body” (p. 5), adding “nowhere else in the Constitution does a ‘right’ attributed to “the people” refer to anything other than an individual right” (p. 6).
3. Every citizen is the militia
To further clarify regarding the use of the word “militia,” the court states “the ordinary definition of the militia as all able-bodied men” (p. 23). Today we would say it is all citizens, not necessarily just men. The Court explains: “’Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else” (p. 9). Since the militia is all of us, it doesn’t mean “only carrying a weapon in an organized military unit” (p. 11-12). “It was clearly an individual right, having nothing whatever to do with service in a militia” (p. 20).
4. Personal self-defense is the primary purpose of the Second Amendment
We often hear politicians talk about their strong commitment to the Second Amendment while simultaneously mentioning hunting. Although hunting is a legitimate purpose for firearms, it isn’t the primary purpose for the Second Amendment. The Court states “the core lawful purpose [is] self-defense” (p. 58), explaining the Founders “understood the right to enable individuals to defend themselves … the ‘right of self-preservation’ as permitting a citizen to ‘repe[l] force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury’ (p.21). They conclude “the inherent right of self-defense has been central to the Second Amendment right” (p.56).
5. There is no interest-balancing approach to the Second Amendment
Interest-balancing means we balance a right with other interests. The court notes that we don’t interpret rights this way stating “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all” (p.62-63). This doesn’t mean that it is unlimited, the same as all rights (more on that below). However, the court states that even though gun violence is a problem to be taken seriously, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64).
6. The Second Amendment exists to prevent tyranny
You’ve probably heard this. It’s listed because this is one of those things about the Second Amendment that many people think is made up. In truth, this is not made up. The Court explains that in order to keep the nation free (“security of a free state”), then the people need arms: “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny” (p.24-25). The Court states that the Founders noted “that history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents” (p. 25). At the time of ratification, there was real fear that government could become oppressive: “during the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive” (p.25). The response to that concern was to codify the citizens’ militia right to arms in the Constitution (p. 26).
7. The Second Amendment was also meant as a provision to repel a foreign army invasion
You may find this one comical, but it’s in there. The court notes one of many reasons for the militia to ensure a free state was “it is useful in repelling invasions” (p.24). This provision, like tyranny, isn’t an everyday occurring use of the right; more like a once-in-a-century (if that) kind of provision. A popular myth from World War II holds Isoroku Yamamoto, commander-in-chief of the Imperial Japanese navy allegedly said “You cannot invade the mainland United States. There would be a rifle behind every blade of grass.” Although there is no evidence of him saying this, there was concern that Japan might invade during WWII. Japan did invade Alaska, which was a U.S. territory at the time, and even today on the West Coast there are still gun embankments from the era (now mostly parks). The fact is that there are over 310 million firearms in the United States as of 2009, making a foreign invasion success less likely (that, and the U.S. military is arguably the strongest in the world).
8. The Second Amendment protects weapons “in common use at the time”
The right to keep and bear arms isn’t unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited” (p. 54). The Court upheld restrictions like the prohibition of arms by felons and the mentally ill, and carrying in certain prohibited places like schools and courthouses. What is protected are weapons “in common use of the time” (p.55). This doesn’t mean weapons in common use “at that time,” meaning the 18th Century. The Court said the idea that it would is “frivolous” and that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (p.8). The Court’s criteria includes weapons in popular widespread use “that [are] overwhelmingly chosen by American society” (p. 56), and “the most popular weapon chosen by Americans” (p. 58).
9. The Second Amendment might require full-blown military arms to fulfill the original intent
The Court didn’t rule specifically on this in D.C. v. Heller, but noting that weapon technology has drastically changed (mentioning modern day bombers and tanks), they stated “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large” (p. 55).
They further added that “the fact that modern developments [in modern weaponry] have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right” (p. 56). A full ruling has not been made, as this was not in the scope the court was asked to rule on in the D.C. v. Heller case, but they left the door open for future ruling.
This article was originally published on PolicyMic.com, now Mic.com. Original publish date Feb 8, 2013. Original author, Matt MacBradaigh.
"In all the noise caused by the Obama administration's direct assault on the right of every person to keep and bear arms, the essence of the issue has been drowned out. The president and his big-government colleagues want you to believe that only the government can keep you free and safe, so to them, the essence of this debate is about obedience to law. "To those who have killed innocents among us, obedience to law is the last of their thoughts. And to those who believe that the Constitution means what it says, the essence of this debate is not about the law; it is about personal liberty in a free society. It is the exercise of this particular personal liberty - the freedom to defend yourself when the police cannot or will not and the freedom to use weapons to repel tyrants if they take over the government - that the big-government crowd fears the most." -- Judge Andrew Napolitano
ReplyDeleteThe stated comment about 'felons' being prohibited is NOT within the confines or boundaries that the 'law' can be used against the people, and in direct defiance of those rights, we, as a people and nation can possess at will.
ReplyDeleteNo law can deny the citizens the rights our constitution guarantees, even when a select few have committed acts and crimes, those rights we enjoy, do not, and shall never diminish or vacate!
The final wording specifically states these rights at the end of the 2nd amendment, by stating clearly; 'SHALL NOT BE INFRINGED', which means EXACTLY THAT!
It is THIS wording, that solidifies OUR rights as a people, and that not even government, at any level or power, has the ability nor power to deny the rights retained only by the people.
All too often, police and the courts have attempted to define our rights as mere privileges, and this shall never be the outcome!
No court has the power to deny a right, to anybody at any time.
Just because a court or judge makes an 'order' or enforces a law, makes that order legal.
The act of direct defiance to any court order, issued by a judge or any other public entity, is the right and duty of the people. We are the law, we live under the rule of a Constitution that outlines these laws, and for whom they are for.
Government was only authorized with 'enumerated authorities', and these authorities ARE specifically laid out in detail, describing WHT the federal government MAY and MAY NOT DO!
Absolute power is NOT a power of ANY government to possess.
Our government has become a criminal, taking what it has NO right to take FROM US!
This is THEFT of a NATIONAL TREASURE and can no longer be allowed to continue.
Threats from government over our rights shall be viewed as a terrorist threat from an ENEMY that cares only about its own powers and authorities that never existed in the first place.
A government becomes the tyrant, when its powers are used against the people it is designed to serve.
You forgot the most important one .... that it was a compromise to ensure against "slave insurrection" to be able to get the southern states to join the union. James Madison wrote the Second Amendment to assure the southern states that Congress would not undermine the slave system by disarming the militia, which were then the principal instruments of slave control throughout the South. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465114
ReplyDeleteThe paper you cite is as "Bogus" as the person who wrote it! It is a THEORY. It is CONJECTURE. I has little to do with fact. In reality, Bogus is a renowned "Revisionist Historian" whose spinning of the facts of the past looks more like one of "Aesop's Fables" than it does a history book.
ReplyDeleteAs a person who has studied (in-depth) the history of the Federalist and Anti-Federalist debates, it is laughable that anyone would conjure up such a tale. But then again...nothing is new in politics. Power grabbers have been grabbing power since time began. Nothing new to see here...move along!
Every man over 18 in this country is a member of the militia, and I can prove it. You even hold a membership card stating you are a member of the militia, but the government doesn't want that well known. Especially the gun grabbers. If it became public that your selective service registration conscripted you to two years military service, the gun grabbers would lose the militia argument. That is why they tried to eliminate the draft, but ole Jimmy Carter reinstated the selective Service act in 1980. Making it so every male citizen of these United States, who is 18 years of age, must register for the militia, under penalty of law. I am 44 years old, and I can still go to the Selective Service website, enter my info, and they still have me on record, and will mail me a membership card/draft card. So every man in America is a member of the well regulated, and registered militia. Just go to the Selective Service website, and check for your self. They will even send you your membership card to carry in your wallet.
ReplyDelete