2nd Amendment

[ShaulWolf]

A couple friends asked me for my thoughts on gun control, the 2nd Amendment, and things relating to it. So I started writing things down to give them my take on it, and here's what I've got so far. I'd appreciate a heads up on any discrepancies.

---------------------------

The 2nd Amendment text, as adopted 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."

Before I get too much into the actual text, I want to go over some history regarding the 2nd Amendment.

The US had just won the Revolutionary War in 1783. The government in place was running under the Articles of Confederation, which loosely united the states under a weak central government for fear of falling under the same pitfalls from the government we had just fought to free ourselves from. However, the Articles of Confederation were lacking and the US Constitution was then drafted to create a more robust centralized government, while still maintaining strong state governments.

The US Constitution did more than just create a new government. In creating a more powerful federal government, the US Constitution also limited the powers that it had. It specifically outlined what the federal government was allowed to do in order to prevent it from becoming too large and wind up a tyranny, something that we had just fought to get away from. The powers that weren't given to the federal government were delegated to the states.

Now it should also be noted that the US Constitution also limits some state powers. According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The Supreme Court stated in Altria Group v. Good, 555 U.S. 70 (2008) that state laws that clearly conflict with federal laws are "without affect". There is more to preemption, but that's the quick version of it.

When the Constitution was being proposed there was a lot of argument and discussion over the meaning behind each clause and amendment. To help explain how the Constitution was meant to work, the Founding Fathers wrote articles to explain their intent in the Federalist Papers, among other publications.

From the Federalist Papers we can take apart the actual text of the 2nd Amendment.

The Federalist Papers 28, 29, and 46 specifically go into the intent behind the 2nd Amendment. In these three articles it was shown that the right to keep and bear arms was not meant for only militia members, but that it is an individual right.

What's interesting in 28 is that it is pointed out that one of the purposes of the 2nd Amendment is, indeed, to allow the citizenry to defend themselves against a tyrannical government in the event that the federal government became too powerful and was now oppressing the people. Keep in mind the historical basis for this. We had just come out of the Revolutionary War, and we were installing a new government. We didn't want to go from one tyranny to another, so we installed a safeguard to allow ourselves to start over again if needed to.

Court cases have also ruled in favor of these assertions. In District of Columbia Et al. v. Heller, the Supreme Court holds in part:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. "

In McDonald v. Chicago, the Supreme Court invalidates Chicago's handgun ban and holds the Second Amendment applies to the states. This further reinforces that state laws cannot preempt the US Constitution, and that banning the practice of carrying firearms is in violation of the 2nd Amendment.

Logic can also be applied to infer that individual rights that have no restrictions to them also extend outside the home, like with the 1st Amendment. There is no clause in the 2nd Amendment stating that the right to self defense only exists in the individual's home or on their own property. It is clear that the right to self defense is an innate and unalienable right, much like freedom of speech or religion. Therefore, the right to self defense extends beyond the home as well.

With the history of the US, the Federalist Papers, and court cases, we can see the following statements to be true:
-The 2nd Amendment is an individual right.
-The 2nd Amendment protects the right to own and carry firearms.
-The right to own and carry firearms is for self defense against others and the government.
-State laws cannot preempt this right.

http://avalon.law.yale.edu/18th_century/fed28.asp
http://avalon.law.yale.edu/18th_century/fed29.asp
http://avalon.law.yale.edu/18th_century/fed46.asp

[GunLawyer001]

The 2nd Amendment was added because government can always find a reason to disarm the citizens, "for your own good".

The Bill of Rights was intended to absolutely clarify that no reason is good enough for Congress to strip rights away. The Supreme Court has whittled away at that over the years, but the govt still has to have a compelling interest and the infringement has to clearly solve a problem in the narrowest way possible. So if the problem is "once or twice a year, some loony steals a gun from a non-loony and kills a bunch of people", then the solution "deprive 300 million Americans of their right to own that gun" is vastly overbroad, even if a lot of people don't care about that particular right.

It's precisely to protect the rights from the fickle whims of the majority, who a cynical government can always influence, that the Bill of Rights is enumerated.

[98valkyrie]

Great write up!! Thank you for researching this for all of us. I can see that we are going to have a fight on our hands with all of the anti's as they look to erode our rights as citizens. I don't think they quite understand the sleeping giant that awaits if they try to take away our rights.

[kabur66]

A couple friends asked me for my thoughts on gun control, the 2nd Amendment, and things relating to it. So I started writing things down to give them my take on it, and here's what I've got so far. I'd appreciate a heads up on any discrepancies.

---------------------------

The 2nd Amendment text, as adopted 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."

Before I get too much into the actual text, I want to go over some history regarding the 2nd Amendment.

The US had just won the Revolutionary War in 1783. The government in place was running under the Articles of Confederation, which loosely united the states under a weak central government for fear of falling under the same pitfalls from the government we had just fought to free ourselves from. However, the Articles of Confederation were lacking and the US Constitution was then drafted to create a more robust centralized government, while still maintaining strong state governments.

The US Constitution did more than just create a new government. In creating a more powerful federal government, the US Constitution also limited the powers that it had. It specifically outlined what the federal government was allowed to do in order to prevent it from becoming too large and wind up a tyranny, something that we had just fought to get away from. The powers that weren't given to the federal government were delegated to the states.

Now it should also be noted that the US Constitution also limits some state powers. According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The Supreme Court stated in Altria Group v. Good, 555 U.S. 70 (2008) that state laws that clearly conflict with federal laws are "without affect". There is more to preemption, but that's the quick version of it.

When the Constitution was being proposed there was a lot of argument and discussion over the meaning behind each clause and amendment. To help explain how the Constitution was meant to work, the Founding Fathers wrote articles to explain their intent in the Federalist Papers, among other publications.

From the Federalist Papers we can take apart the actual text of the 2nd Amendment.

The Federalist Papers 28, 29, and 46 specifically go into the intent behind the 2nd Amendment. In these three articles it was shown that the right to keep and bear arms was not meant for only militia members, but that it is an individual right.

What's interesting in 28 is that it is pointed out that one of the purposes of the 2nd Amendment is, indeed, to allow the citizenry to defend themselves against a tyrannical government in the event that the federal government became too powerful and was now oppressing the people. Keep in mind the historical basis for this. We had just come out of the revolutionary war, and we were installing a new government. We didn't want to go from one tyranny to another, so we installed a safeguard to allow ourselves to start over again if needed to.

Court cases have also ruled in favor of these assertions. In District of Columbia Et al. v. Heller, the Supreme Court holds in part:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. "

In McDonald v. Chicago, the Supreme Court invalidates Chicago's handgun ban and holds the Second Amendment applies to the states. This further reinforces that state laws cannot preempt the US Constitution, and that banning the practice of carrying firearms is in violation of the 2nd Amendment.

Logic can also be applied to infer that individual rights that have no restrictions to them also extend outside the home, like with the 1st Amendment. There is no clause in the 2nd Amendment stating that the right to self defense only exists in the individual's home or on their own property. It is clear that the right to self defense is an innate and unalienable right, much like freedom of speech or religion. Therefore, the right to self defense extends beyond the home as well.

With the history of the US, the Federalist Papers, and court cases, we can see the following statements to be true:
-The 2nd Amendment is an individual right.
-The 2nd Amendment protects the right to own and carry firearms.
-The right to own and carry firearms is for self defense against others and the government.
-State laws cannot preempt this right.

http://avalon.law.yale.edu/18th_century/fed28.asp
http://avalon.law.yale.edu/18th_century/fed29.asp
http://avalon.law.yale.edu/18th_century/fed46.asp

This is a really good summary. Good info. Thanks. This statement is the basis for the 2nd Amendment .. . .

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The term "Militia" meant a group of people should be able to defend their lives. Not an individual. The 2nd amendment is not meant for the indivdiual, and does not include assult guns.

[ShaulWolf]

This is a really good summary. Good info. Thanks. This statement is the basis for the 2nd Amendment .. . .

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The term "Militia" meant a group of people should be able to defend their lives. Not an individual. The 2nd amendment is not meant for the indivdiual, and does not include assult guns.

The Supreme Court decision in D.C. vs Heller already ruled that the 2nd Amendment is an individual right, and it's well accepted from the Federalist Papers and court rulings that the 2nd Amendment is three separate clauses. It's stating that there needs to be: 1. A well regulated militia, 2. it is necessary to the security of a free State, and 3. the right of the people to keep and bear arms shall not be infringed.

I'm not sure what your definition of an assault gun is, but any such weapon is already heavily regulated by the BATF. Someone who's gone through the process of getting any NFA item can fill you in on the details of it. It's quite substantial, costly, and time consuming.

If you mean the type of weapon, then explain how one semi-automatic rifle is any worse than the other. The design and features of the AR-15 platform lend it well to a number of fields, whether it's for military/police application or just for target shooting. It's a surprisingly comfortable rifle to fire, which is great for teaching younger shooters due to its low recoil and relative ease of use. It's excellent for competition shooters who do things like multi-gun matches.

Furthermore, most assaults and murders committed with firearms involve handguns, not rifles. You'll find that most of those firearms are obtained illegally anyway, as was the case in Connecticut and Oregon. So it's a moot point to tell me that further legislation will help anything.

[jpg5080]

This is a really good summary. Good info. Thanks. This statement is the basis for the 2nd Amendment .. . .

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The term "Militia" meant a group of people should be able to defend their lives. Not an individual. The 2nd amendment is not meant for the indivdiual, and does not include assult guns.

I don't think you actually read the OP, since he clearly outlined and referenced the context of the Second Amendment.

I would be interested in reading the citations that back up your statements that I bolded above....

[Metz]

Here is an opinion of one lawyer from NYC, who's otherwise will be to the left from Hillary (fiscally and otherwise). Very suprising, given it's coming from this particular person:

The most recent SCOTUS ruling crossed all the t's, establishing, that it doesn't have to do anything with militia, but it's simply a personal right. Individual, as every other right, that is guaranteed by the Bill of Rights. So bottom line is: you don't have to be a member of militia and be ready to resist government tyranny in order to posess firearms. You just can do that, because you have that friggin right. Period. Nothing to discuss there.

You can have it for hunting, self defence, target practice, as a collector, as a firearm masturbator but mainly - you don't need ANY "reason" to posess it. We have right = we don't need to explain anything. Same as with the freedom of speech. Or freedom of religion. You just can do that and you don't have to explain anything to anyone.

You can come up with zillion "reasons" to prove or disprove something, but this all is bulllshit and just doesn't matter. You can, because you can. You need justifications to ban something, that is otherwise someone else's right, but you don't need to justify yourself if you want to excersize that right.

[ShaulWolf]

This is going to be a slight tangent relating to the 2nd Amendment.

It's well established from The Federalist Papers, No. 28, written by Alexander Hamilton, that the 2nd Amendment is meant to protect the individual right to bear arms. It also states that this right is meant to be used to protect oneself, the state, and against the state if it becomes tyrannical. He did conclude that this would be an unlikely event, but citizens should have the right to defend against a government that is encroaching on and suppressing the rights of the people. It was meant to be extremely clear that the 2nd Amendment protected the right to fight back and defend oneself against others and the government when all else failed.

Nowhere in the 2nd Amendment, or anywhere else in the US Constitution, does it mention anything about which type of firearms or weapons are permitted and barred from being used. Nowhere does it say anything about muskets or flintlocks or rifles or pistols. It wasn't until later, much later, that legislation was passed to limit what the people were allowed and not allowed to have. Why? Because politicians feared the people, and felt that they couldn't trust the people with something like firearms.

There are also arguments that the 2nd Amendment didn't intend for people to have the same firearms that the military and police have. I would like to point out that when the US Constitution was written, that muskets and muzzle loading rifles were the AK-47 of the era. The military weapon of choice was the muzzle loading smooth-bore rifle, something that was available for all.

Hamilton already asserts that the purpose of the 2nd Amendment is to protect the individual right to bear arms, as well as the right to form militias in defense against a tyrannical government. This intent is backed in Federalist No. 29 and 46 as well.

It would then make sense that we, the people, were indeed intended to have the same basic arms as the military. Furthermore, the intense regulation and legislation of firearms was never something that the Founding Fathers intended, especially when it's done under the pretense of "the greater good".

It is noted that it is extremely unlikely that we will ever have to rebel against the government and start another civil war against an oppressive government, but the ability to do so should always be there. That's the entire point of the 1st and 2nd Amendment. To speak our voices and have them be heard, to gather and share our thoughts and ideas, and to defend and fight back when none of them are heard and we're still being oppressed.

[TaePo]

Two other important talking points:

On demands to repeal the Second Amendment, this cannot be done. Alexander Hamilton covered it well when he argued against enumerating rights in the Constitution (e.g. Bill of Rights). The following is a copy of my post on another thread at PAFOA and another board/blog.

Repeal the Second Amendment? That is so laughable. They do know the Bill of Rights only enumerate god-given/pre-existing rights, don't they? Those amendments cannot be repealed. Read the Federalist and Anti-Federalist papers to see what the founders meant. Especially read what Alexander Hamilton had to say about enumerating rights at all.

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

Document 7 -- Alexander Hamilton, Federalist, no. 84, 575--81, 28 May 1788

In other words, enumeration of rights might lead people to believe that they can be infringed or taken away when they can't be by definition. The US Constitution only spells out specific powers granted by the people to the government, no more.

The sentiment regarding repealing a Bill of Right is ludicrous and ignorant.

Second, our chosen governmental form was a Representative Republic and not a Democracy. The founders knew that democracies devolved into majority rule or 'mob'ocracy. Democracies run counter to the concepts of individual rights and liberties. The majority would always trample the individuals. The Constitution was set-up as a limited power granting document from the people. Only the powers specified were granted to the government and could be changed/rescinded at the whim of the people. The Bill of Rights were added to strike any question that individuals were not the supreme unit in government and life. Rights, being inherent to each and everyone of us, cannot be alienated from us or we from them.

[knight0334]

This is a really good summary. Good info. Thanks. This statement is the basis for the 2nd Amendment .. . .

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The term "Militia" meant a group of people should be able to defend their lives. Not an individual. The 2nd amendment is not meant for the indivdiual, and does not include assult guns.

You are utterly and entirely wrong.

"The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.... The unlimited power of the sword is not in the hands of either the federal or the state governments, but where I trust in God it will ever remain, in the hands of the people."

-Tench Coxe, The Pennsylvania Gazette, February 20, 1788

Not to mention Heller and Miller rulings completely back that up.

Militia is a non-regular soldier, whether in the company of a million men or as an army of 1.