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The Second Amendment: What does the law mean?
The myths and truths
By: David K. Every
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Oct 05,1998
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It drives me nuts when people think that means something other than "For the security of freedom, all able bodied men have the right to keep and bear arms". I've heard many flavors of distortion by people that don't understand English (selectively) or choose to mislead for a "good cause" in their mind. Many play word twisting arguments and make claims like "guns should only apply to those who are in the militia". They are either ignorant of the subject or are choosing to ignore what the Historians and English experts say was the intent of the law. Try this --
"A well-schooled electorate being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."
Everyone gets it. The statement is not that you should only be allowed to own books if you are well schooled -- it means everyone should be allowed to educate themselves, and so should be free to keep and read books. Somehow their interpretation changes when applied to guns.
Words change meaning over time. People think the Militia is (was) organizations like the National Reserves -- but they were not and are not.
mi•li•tia - n. Abbr. mil. 1. An army composed of ordinary citizens rather than professional soldiers. 2. A military force that is not part of a regular army and is subject to call for service in an emergency. 3. The whole body of physically fit civilians eligible by law for military service.
It was specifically NOT the Government controlled forces (that was the army, whether reserve units or not) -- it was private citizens, and all of them. Today it would mean roughly all people over the age of 17/18 and not incapable of fighting (due to criminal convictions, mental limitations and so on). The government defines the "unorganized" militia as basically all able bodied men (meaning men and women), and conscription (the draft) is just basically calling in that militia! It never could have meant "National Guard" or what we think of as the militia today, since they (and that concept) didn't even exist when the term was used!
Of course more importantly the Second Amendment was never dependent on the militia because the militia meant all the people. I've got dozens of quotes to support this but here is a sample -
"I ask, sir, what is the militia? It is the whole people... To disarm the people is the best and most effectual way to enslave them." -- George Mason, during Virginia's ratification convention, 1788
This issue was debated long ago -- every man was supposed to be able to own a gun <period>.
Still doubt it, think about this.
- The National Guard was established in 1903 and subject to federal control -- there is no way it could have been the type of body envisioned by the framers.
- Under federal law, the "militia" consists of all able-bodied males of an age to serve, and some females and older men. (10 U.S.C. 311 and 32 U.S.C. 313).
- All five relevant Supreme Court decisions have recognized that the Second Amendment guarantees an individual right to keep and bear arms. Like all rights protected by the Bill of Rights, the right to keep and bear arms is individually possessed by the American people. The recent argument that it is somehow a "collective right" or state right is fraudulent -- the Framers understood the concept of a "right" to apply only to individuals.
- No Supreme Court decision has ever held this right to be "collective."
- In 1990, the Supreme Court observed in U.S. v. Verdugo-Urquidez, that the right to keep and bear arms, like rights protected by the First, Fourth, Ninth, and Tenth Amendments, is an individual right held by "the people," which the court defined as all "persons who are a part of a national community."
If you still doubt the veracity of this point, then read Gun Quotes. Founding Fathers, Historians, Scholars, and the Supreme court all support that individuals have the right to keep and bear arms. If you want to change the constitution, then there are ways to do this -- amendments, constitutional convention, revolution, coup, and so on -- but there is no doubt as to what was intended by that amendment. Those that tell you otherwise are either ignorant or fraudulent. The constitution and its framers were quite clear. I really detest those that try to pervert the words and meanings to fit their objectives and agendas. There are ways to change the constitution -- and it is in their power to try -- but we shouldn't just let them pervert the meaning.
  
This is sort of true -- but it wasn't meant to. It was about balancing power between the people and the government. The firepower has changed -- but it has to change equally for both sides. Besides, this argument about modernization also applies to the first amendment. Should we outlaw or seriously restrict free speech because the framers didn't know that individuals could own printing presses (desktop publishing), or because they didn't project telephones, radio, television, or the Internet? These are the "assault weapons" of "the information age!" Should we throw the whole document away? Or do you think that for the first amendment the principles and philosophy of freedom and individual rights goes beyond the technology? If so, why should that not apply that same standard to other tools, freedoms and amendments (like for guns)?
Remember, "the pen is mightier than the sword" [and gun]. So with the first and second amendment you can certainly legislate the abuse of those tools, but not the right to own them -- or at least that was the intent. Imagine outlawing ownership of computers, books, or other means of distributing information because they could be misused (and are being misused) or doing so on the grounds that they were not what the framers had in mind when they wrote the first amendment. That is as philosophically and morally corrupt as doing the same for tools of defense.
Of course the philosophy of the framers of the Constitution was that the People could and should be trusted, Governments could not and should not be trusted. The philosophy of the Founders was pretty clear -- Governments are a tool of force used to abuse individuals and their INALIENABLE rights; therefor governments (especially federal) should have as little power as was necessary to govern, and the people should have as many rights and freedoms as possible! Too bad most people don't seem to realize that, or why. It was originally felt that the Bill of Rights might not even be needed and was redundant since the intent of the Constitution was so obvious in the Declaration of Independence -- individuals have the right to life, liberty and property. But the founders caved in to spelling out the obvious -- and it is a good thing they did too, because ever since then Politicians, Government Officials, and many individuals have been striving to deprive us of all three -- usually in the name of public good, and often by playing word games and trying to manipulate the letter of the law to corrupt the spirit of the law.
There is another argument that guns have gotten "more lethal over the years". This is true, but it totally ignores that medicine has gained in technology too. You are far less likely to die today from a gunshot wound -- even WITH higher technology and higher velocity weapons, than you would in the 18th century. Furthermore, individuals back then were allowed to own artillery and weapons of mass destruction (explosives) that could do far more damage than our measly so called "assault weapons". And you must always remember that the whole point of allowing the people to have guns was as much to balance the power against government (and the power politicians and enforcement agencies). The founders felts both would be less likely to infringe on the rights of individuals knowing that they might be shot for doing so, or that corrupt laws could be resisted.
This nation was founded on freedoms, including gun freedoms. Remember, the colonists', war of independence was started when the British army marched on Lexington and Concord -- to try to enforce a recently- passed 'assault weapons' ban. Remember Paul Revere's ride and "the British are coming" -- they had been here all along, the full point of the cry was "the British were coming to take people's guns!" The king had said we did not need arms of any kind, since we must trust the king's army to protect us!! It was a crock then, and is still a crock 200 years later!! The 1968 gun control act was taken almost verbatim from the Nazi 1938 gun control laws -- and while it did work in 1938 it just did not work how the people intended. We may not collapse to the same levels of depravity -- but now there is one few check and balance in place. We may be come as totalitarian as they were -- it just seems to be happening much slower.
Gun control laws can be argued and debated, but there is no doubt as to what the Second Amendment means. You may want to revise the constitution, and fortunately there are ways to do that (like Constitution Referendum, an Amendment) -- but if we value the Constitution at all, then we have to respect the spirit and letter of the law -- not pervert its intent because we wished it meant something else. If we allow the perversion of the law for the Second Amendment, then we are setting a precident to allow it for the 1st, 3rd, 4th, 5th, and so on. When do we decide that the words and intent of our Constitution mean things worth standing up for? Do you really believe we should just allow the perversion of the Constitution because it is easier to cram a cause through than going through the proper process? I don't think the ends can justify the means.
I think there is some room in the Constitution for some legislation on guns -- but far more on the State and Local Level than at the Federal Level. So when things like the 1934 or1968 Gun Control Act, or the Brady Law come up for federal legislation I think they should be shot down -- it is just not the Federal Charter (which is supposed to be to protect our Freedoms and Civil Liberties and not encroach on them). I personally think most of the laws have gone way too far, and that the Supreme Court is doing the same lousy job on standing up for gun rights as they did in the past for black people rights (on ruling that they were "3/5ths of a Human being" or that "Separate but Equal" was god enough). Of course the Politicans, Legislators and most important the people themselves have failed to understand the spirit (and letter) of our own law (the Constitution) in the first place. Even worse, the organizations that claim to exist to protect our civil liberties (like the ACLU) often chose to ignore their responsibility (and their own charter) to suite their personal agendas (they are good about defending the First Amendment but intentionally and almost always ignore cases dealing with our Second Amendment -- they want to chose which civil liberties count and what part of the constitution matters).
The second amendment says quite clearly that we (the PEOPLE) should be allowed to have guns -- mainly because the rights to life, liberty and property are inalienable. The founding fathers felt that if we didn't have the right to protect ourselves, and make it costly or dangerous to infringe on our rights, then what rights did we truly have? If you don't have the right to defend your home, your life, your liberty or your property, and you are required by law to wait until the King or Govt. does it for you, then you have no real rights at all. Since anything can be quickly taken away by anyone with the desire to do so -- and the only thing the government and police are good for is punishing criminals after the fact (unless they were the ones perpetuating that act). Time and technology doesn't change this, because human nature does not change. The Second Amendment was about the philosophy of empowering individuals, and allowing individuals to have freedoms to choose!
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