Second amendmentWith the two recent Supreme Court decisions on the right to possess firearms, and the current national concern and dialogue about gun violence in the United States, I hereby offer a tour through American perspectives and understandings of the source, nature and meaning of “the right to keep and bear arms” as immortalized in the 2nd Amendment to the US Constitution.

Those whose opposition to gun control laws is based on the language of the 2nd Amendment, often point to the English Common Law tradition as the basis of the individual right to own and use firearms, both for sustenance (hunting) and self-defense. Some, including those who are aligned with the National Rifle Associations’ post-1975 shift toward an inviolable right of self-preservation (the NRA used to support gun control), also insist that a primary reason for the “right to keep and bear arms” is to defend against government tyranny – “enemies foreign and domestic”.

Neither of those arguments for an unrestricted right to possess personal firearms hold up under scrutiny of historical analysis, even though the early states-rights and anti-federalist movements promulgated them at the founding of our nation, just as their ideological descendants – the far right – propagate them today as if they comprised a consensus of the Founders and Framers who, in fact, deliberately rejected such individualistic emphasis in favor of a collectivist one.

A More Perfect Union

A Letter of Transmittal from George Washington, addressed to the President of Congress and signed on September 17, 1787, accompanied and introduced the Constitution for ratification and stated succinctly and definitively what the Constitutional Convention had in mind. The second paragraph read:

“It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest [emphasis added]. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be preserved [emphasis added]; and, on the present occasion, this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests.”

The very purpose of dissolving the Articles of Confederation and substituting a Constitution to create a stronger central government was to balance civic duty with individual liberty and to balance state sovereignty with federal power to assure “domestic tranquility” or public order.

As will become apparent below, a major impetus for creating a constitutional republic was the recent farmer’s rebellion of 1786-87 called Shay’s Rebellion and the inability of the central government to defend against it due to the absence of a federal militia (George Washington’s concern about this brought him out of retirement to champion a stronger national government with a well-regulated militia).

Further, and contrary to the myth that the 2nd Amendment was intended to give commoners the means to revolt against their own government, the first use of the new well-regulated militia, under Congressional control and the authority of the President, was to suppress the second citizen’s insurrection – the Whiskey Rebellion.

The Whiskey Insurrection was a tax protest based in the western United States beginning in 1791, during the presidency of George Washington, following the imposition of the first federal excise tax intended to help states pay off their Revolutionary War debts. Though westerners correctly viewed the tax as prejudicial to their small-scale distilleries and as a form of taxation without local representation (which many had recently fought against), President Washington led a group of 13,000 militiamen to suppress this insurrection (as Article 1 of the Constitution allows) and the rebels disbanded.

The function of a strong Union was to put the public interest on at least equal footing with individual rights and liberties – a concept that seems to escape the understanding of those today who continue to resist the very notion of civic duty and collective responsibility, championed by Thomas Jefferson, who called it Civic Republicanism – the practice of placing the common good above our individual self-interest.

As legal scholar Michael Waldman notes in his 2014 book The 2nd Amendment: A Biography, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention, nor with scattered exceptions in the records of the ratification debates in the states, nor on the floor of the US House of Representatives as it marked up the Second Amendment for approval.

In fact, the 1792 Militia Act, which required all military-age white males to obtain their own muskets and equipment (and often used by individual rights advocates to “prove” that the 2nd Amendment was intended to protect individual gun ownership), was passed by the Second Congress specifically in response to the 1791 Whiskey Rebellion and was intended to make militia participation a universal civic duty that transcended individual rights or liberties.

Gun Control Was the Rule in Colonial & Early America

In 1619, more than a century and a half before the American Revolution, the Virginia House of Burgesses passed a law making the transfer of guns to Native Americans punishable by death. Other laws across the colonies criminalized selling or giving firearms to slaves, indentured servants, Catholics, vagrants and those who refused to swear a loyalty oath to revolutionary forces. Guns could be confiscated or kept in central locations for the defense of the community. And in the late 1700s and early 1800s, states such as New Hampshire and Rhode Island conducted door-to-door arms censuses, acts which today would cause many gun-rights advocates to rise up in revolt and threaten armed retaliation but which were then considered both routine and necessary.

Notice-No-Gun-SignA statute adopted at the Massachusetts 1713-14 legislative session complained, “Whereas by the indiscreet firing of guns laden with shot and ball within the town and harbour of Boston, the lives and limbs of many persons have been lost, and others have been in great danger, as well as other damage has been sustained”, the firing of any “gun or pistol” in Boston (“the islands thereto belonging excepted”) was prohibited.

Ten of the thirteen colonies impressed (temporarily confiscated) privately owned firearms for the war effort against England. Impressed guns were eventually returned to their owners, but the seizure itself might leave the owner without a firearm to defend against attack. To the Founding Fathers, leaving an individual without a gun to defend himself was immaterial in light of the public need for that firearm. Guns were privately owned, but they were also considered assets to be used if necessary for the public good, even if it undermined individual rights.

Following the Revolution, Virginia passed a law requiring all demobilized soldiers to turn their weapons in to the state, and they were hardly the only state with armories for storing and safeguarding militia weapons.

We also harbor, largely due to Hollywood influence, a mythic image of the “Wild West” as a gun-slingin’ lawless region. The reality, however, was that on the western frontier in the 19th century, to stave off violence, new towns and cities enacted laws to bar the carrying of guns. “In fact, the typical western town had stricter gun laws than many 21st-century states.”           – Robert J. Spitzer, distinguished service professor and chairman of the political science department at the State University of New York College at Cortland, and author of four books on gun policy, including The Politics of Gun Control

Tombstone AZ

The most common gun law of late 1800s America was a ban on concealed firearms. According to gun rights historian Clayton Cramer, concealed carry prohibitions were among the earliest types of gun control laws adopted in the years following the Revolution. The first such law was adopted in Kentucky and Louisiana in 1813, Indiana banned concealed carry in 1820, Tennessee and Virginia in 1838, Alabama in 1839, and Ohio in 1859.

In Kentucky, when a state court struck down their concealed carry ban in 1822, the state constitution was quickly amended to provide explicitly that the individual right to bear arms was “subject to the power of the general assembly to enact laws to prevent persons from carrying concealed weapons”.

Though most of the laws regulated concealed carry, several states with constitutional protections for gun rights – including Texas, Florida, and Oklahoma – restricted or banned open carry, too. Only Idaho’s ban on open carry was ruled unconstitutional in 1902.

Bans on concealed carry spread to the frontier. In 1887, Montana banned the concealed carry of any “deadly weapon” within city limits, including pistols, daggers, slingshots and brass knuckles. Violators received six months in jail or a hefty fine. In 1890, Oklahoma passed an even broader law that applied throughout the territory, and made it unlawful for all except law enforcement personnel “to carry concealed or on or about his person, saddle, saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife or instrument manufactured or sold for the purpose of defense”.

This kind of gun control was sufficiently widespread that the Washington State Supreme Court could write in 1907, “Nearly all states have enacted laws prohibiting the carrying of concealed weapons”.

Common Law Origins

Blackstone

Sir William Blackstone (1723 – 1780) the author of Commentaries on the Laws of England, which became the standard text of Common Law in both England and the colonies, wrote at a time when there were no police or forces of law enforcement about the right to have arms being auxiliary to the “natural right of resistance and self-preservation”, but conceded that the right was subject to their suitability and allowance by law:

“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

The entire Enlightenment political philosophy was based on the abandonment of the laws of nature for the laws of society, which required a surrender of such parts of natural law as were either incompatible with a peaceful and ordered society or unnecessary because civil law served the same function. There was a distinction, therefore, between “natural rights” in a state of nature, and “inalienable rights” that even society could not restrain except to protect and preserve social order. Thus, even “life, liberty and property” (or “the pursuit of happiness”, as Jefferson emended Locke’s words), can be constrained or even revoked if social order demands it. Because “your freedom ends where my nose begins” is a commonly-understood maxim of the limits of liberty in society, social order requires a balancing of individual rights with collective rights, and no rights can be completely unrestricted without returning to what Enlightenment scholars understood as the state of anarchic nature.

To Keep and Bear Arms

Shall Not be Infringed“In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. … As a review of the Library of Congress’s data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of ‘bear arms’ and ‘bearing arms’ in bills, statutes, and debates of the Continental, Confederation, and United States’ Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.” – H. Richard Uviller & William G. Merkel (2003), The Militia and the Right to Arms, Or, How the second Amendment Fell Silent

The term to “bear arms” comes from the Latin “arma ferre“, which means to carry military weapons into battle. To “keep arms” meant to stock them in armories. And “the people” referred to the collective population, not to individuals. The Framers clearly understood the use of these terms.

An Individual or a Collective Right?

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.”

John Jay (President of the Continental Congress, signer of the Treaty of Paris which ended the Revolutionary War, author of five of The Federalist Papers, and first Chief Justice of the United States) wrote in a legal opinion in 1793: “A preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.”

That the original wording of Madison’s Second Amendment allowed “any person religiously scrupulous of bearing arms” to avoid military service, demonstrates plainly not only the military purpose of the amendment but the acceptance of a right not to bear arms as an essential balance against the obligation to bear arms.

Uviller and Merkel hold that the right to bear arms was not reserved to the state, but rather was an individual and personal right for arms, but only to the extent needed to maintain a well regulated militia to support the state. They also hold that a militia recognizable to the framers of the Constitution has ceased to exist in the United States, resulting from deliberate Congressional legislation and also societal neglect; nonetheless, “Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance.”

“From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession and use of arms. We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state.”

“…we understand the Second Amendment as though it read: ‘Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed’ …to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.”

“The amendment thus guarantees a right to arms only within the context of a militia, not an individual right to arms for self-defense or hunting.” – David H. Williams (2003), The Mythic Meanings of the Second Amendment: Taming Political Violence In a Constitutional Republic

In deciding against the carrying of concealed weapons in public, an early Arkansas Supreme Court ruling helped clarify this as well.

“The terms ‘common defense’ in ordinary language, means national defense. The reason for keeping and bearing arms given in the [Constitution] is clearly explanatory and furnishes the true interpretation of the claim in question. The militia constitutes the shield and defense for the security of a free State; and to maintain that freedom unimpaired, arms and the right to use them for that purpose are solely guaranteed. The personal rights of the citizens are secured to him through the instrumentality and agency of the constitution and laws of the country; and to them he must appeal for the protection of his private rights and the redress of his private injuries…” – The State v. Buzzard (1842)

In that decision, the Arkansas high court adopted a militia-based, political-right reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, “that the free white men of this State shall have a right to keep and bear arms for their common defense”, while rejecting the necessity of carrying concealed weapons for self-protection since the laws, courts and agents of the state offer sufficient protection and recourse as properly determined by the legislators.

The US Supreme Court, nearly a century later, offered a similar ruling in United States v. Miller (1939):

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

A Bulwark Against Tyranny

second-amendment

Even more than simple self-defense, the most ardent proponents of unrestricted gun ownership insist that the ultimate purpose of an armed citizenry, and the reason for the 2nd Amendment, is to create a bulwark against governmental over-reach and, if necessary, the ability to resist governmental tyranny, much as had the Revolutionary militias during the founding of our nation.

The statement: “The Second Amendment was intended to protect the right of Americans to rise up against a tyrannical government” is a canard repeated with disturbing frequency. The Constitution, in Article I, allows armed citizens in militias to “suppress Insurrections”, not cause them. The Constitution defines treason as “levying War” against the government in Article III, and the states can ask the federal government for assistance “against domestic Violence” under Article IV. Our system provides peaceful means for citizens to air grievances and change policy, from the ballot box to the jury box to the right to peaceably assemble. But as constitutional scholar Roscoe Pound noted, a “legal right of the citizen to wage war on the government is something that cannot be admitted” because it would “defeat the whole Bill of Rights” – including the Second Amendment.

– Robert J. Spitzer, distinguished service professor and chairman of the political science department at the State University of New York College at Cortland

What Did the Founders and Framers Think?

constitutional convention

The following is excerpted from The Second Amendment in Historical Perspective by Paul Finkelman, President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow in the Government Law Center at Albany Law School in Albany, NY.

The failure of the national government under the Articles of Confederation prompted the call for a convention to revise the Articles.

While American leaders were contemplating calling a convention to revise the Articles, violent resistance to traditional law enforcement – most notably Shays’ Rebellion in Massachusetts – underscored the sense of crisis that many Americans felt. Farmers led by Captain Daniel Shays marched on local courthouses in western Massachusetts, shutting down the courts and intimidating judges and others. Eventually militia companies from eastern Massachusetts dispersed Shays and his followers.

The delegates to the Philadelphia Convention met with this event fresh in their memories and with the knowledge that the government under the Articles of Confederation would probably be helpless in a similar situation.

The delegates produced a document that strengthened the national government and provided a framework for a viable national defense. Opponents of the new form of government – Antifederalists who feared a strong national government – proposed numerous amendments in the state conventions called to ratify the Constitution. The Antifederalists also expressed their fears of the new Constitution in an enormous amount of public commentary.

[Anti-federalists, while perhaps strongest in Virginia, were also significant elements of the populations of New York, New Hampshire, Massachusetts, Rhode Island, Pennsylvania, Maryland, North Carolina and South Carolina – all told, as many as 200 amendments to the Constitution were proposed by those trying to weaken it.]

The bulk of the proposed amendments were designed to remake the Constitution by severely limiting the power of the national government. If the Antifederalists had succeeded, the United States would have reverted to a decentralized collection of sovereign states with a weak national congress, an almost invisible federal judiciary, and a powerless military with virtually no standing army.

Antifederalists like Patrick Henry proposed a wholesale remaking of the system of government. The fact that the majority of Antifederalist proposals were structural, rather than libertarian, underscores the fact that the most prominent Antifederalists were only marginally interested in a bill of rights. Indeed, among the hard-core Antifederalists it is clear that the argument about a bill of rights was, for the most part, a stalking horse for their larger goal – to undermine the strength of the new central government.

Antifederalist leaders like Patrick Henry and Richard Henry Lee of Virginia really wanted to defeat the Constitution and either go back to the old system or force a second convention where they could rewrite the document along the states’ rights lines that interested them. But, having failed to defeat the Constitution, they strove for crippling amendments that went to the very structure of that document. Thus, they vociferously demanded a bill of rights before the Constitution was ratified in hopes that the purported lack of libertarian protections would persuade more moderate Americans to help them defeat ratification. But, once the Constitution was ratified, they were no longer interested in a bill of rights and instead wanted a wholesale restructuring of the Constitution.

Not surprisingly, the Federalists who dominated the First Congress rejected all of these structural changes and did little to alter the power of the national government under the new Constitution. The Federalists did, however, offer a series of amendments that, for the most part, recognized existing limitations on the national government under the new Constitution.

In 1789-91, the hard-core Antifederalists suffered their final defeat, as Federalists and moderate Antifederalists accepted the Bill of Rights, and with it, the victory of the Constitution itself.

The Bill of Rights confirmed that the national government would not trample on the rights of conscience, deny people due process of law, or impose cruel and unusual punishments on convicted criminals. While some of its provisions actually created new rights – such as the right to counsel in the Sixth Amendment – most of the amendments simply confirmed what the national government could not do under the Constitution. The Second and Tenth Amendments reconfirmed existing relations between the states and the national government but did not create any new rights or structural relationships. In particular, the Second Amendment reconfirmed that even though the national Congress would have the primary responsibility for arming and organizing the state militias, the states could maintain their own militias, if Congress failed to do its job.

The Second Amendment arose out of the conflict between Federalists and Antifederalists over those portions of the Constitution that dealt with the militia and the national army. But it was ultimately tied to the larger Federalist-Antifederalist conflict over the nature of the new government itself.

Article I of the Constitution gives Congress power to “declare War” –  “to raise and support Armies” –  to “maintain a Navy” –  to make “Rules for the Government and Regulation of the land and naval Forces” –  to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” –  and “to provide for organizing, arming, and disciplining, the Militia”. Furthermore, Article I declares that the states may not “keep Troops, or Ships of War in time of Peace”. Article II makes the president of the United States the “Commander in Chief of the Army and Navy” and “of the Militia of the several States, when called into the actual Service of the United States”. These provisions also contain two important limitations. Congress can appropriate money for the military only for two years, and the states retain the power to appoint all militia officers and to train the militia, provided this training complies with “the discipline prescribed by Congress”.

Taken together, these provisions contemplated two levels of military protection for the new nation: (1) a national army created and governed solely by Congress and ultimately under the authority of the president in his capacity as commander in chief, and (2) a system of state militias, essentially organized and under control of the states, but subject to regulation by Congress and to “federalization” at the command of the president.

At the end of the Pennsylvania Ratifying Convention, the Antifederalists were soundly defeated. After that state convention, they published their Reasons of Dissent. Part of this document contained a list of fourteen proposed amendments to the Constitution. Some of these proposals – those dealing with the protection of individual libertarian rights and legal due process – were later incorporated, almost word-for-word, into the Bill of Rights.

The Pennsylvania Antifederalists also proposed amendments concerning the army, the militia, the right to bear arms, and the right to hunt. These amendments addressed at least six separate issues: (1) the right of self-protection through the ownership of weapons, (2) the right to serve in the militia, (3) the right to hunt and fish, (4) the prevention of a standing army, (5) the power of Congress over the states, and (6) the power of the states to control their own armies or militias.

Madison and his colleagues in the First Congress emphatically rejected the goals and the language of the Pennsylvania Antifederalists on these issues. If Congress in 1789 had accepted these proposals of the Pennsylvania minority, then one might persuasively argue that the Constitution, as amended, guaranteed a personal and individual right of Americans to own weapons.

At the time of the drafting of the Constitution, “every state had gun control legislation on its books” [Michael A. Bellesiles, Gun Laws In Early America: The Regulation of Firearms Ownership, 1607-1794].  But an amendment along the lines of the Pennsylvania Antifederalists’ would have prevented such a law in the federal district.

Indeed, Shays’ Rebellion helped convince many of the need for a new constitution with a strong national military. Thus, in drafting the Bill of Rights, James Madison and his Congressional colleagues emphatically rejected the sweeping provisions of the Pennsylvania minority and other Antifederalists relating to the military, the militia, and firearms and instead adopted a much more limited amendment, directed at only one particular issue: the preservation of the organized state militias as a military force.

The Congressmen of 1789 were not interested in protecting the rights to “killing game,” “to fowl and hunt in seasonable times,” “to fish in all navigable waters,” or even to guarantee that people should be able to “bear arms for the defense of themselves”. The fact that Madison and Congress did not propose amendments along the lines demanded by the Pennsylvania minority leads to a prima facie conclusion that they did not intend to incorporate such protections into the Bill of Rights.

[In fact, this alleged “minority” of the Pennsylvania delegation was likely just a single rabble-rouser by the name of Robert Whitehill, whose antics at the Constitutional Convention were intended to delay or prevent a vote for ratification. He made his hastily scribbled objections on the day scheduled for a final vote, as part of a failed motion to adjourn without voting.]

An Activist Supreme Court Changes the Constitution

DC v Heller

District of Columbia v. Heller (2008) was a landmark case in which the Supreme Court of the United States held that the 2nd Amendment to the Constitution protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home, in federal enclaves. The subsequent decision in McDonald v. Chicago (2010), extended this individual right beyond federal enclaves to the states on the basis of the 14th Amendment incorporation clause.

DC v. Heller  was the first Supreme Court case in United States history to decide that the 2nd Amendment protects an individual right to keep and bear arms.

“This thin reed of gun rights has only existed since 2010. In the 2010 McDonald v. Chicago case, the activist US Supreme Court reversed 142 years of precedent to extend the meaning of the 14th Amendment to prohibit states from prohibiting guns. It did so by a 5-4 margin. In other words, the nationwide Constitutional protection for gun ownership only came into existence in 2010 (not 1791) and even then by one single vote. So much for the everlasting, inalienable right to own a gun.”  – Salvatore Babones, senior lecturer in sociology and social policy at the University of Sydney in Australia and associate fellow at the Institute for Policy Studies in Washington, DC.

Ironically, some of the sharpest criticism of the Heller decision, penned by Justice Antonin Scalia, came from ardent conservative jurists and legal scholars, including federal appellate judges J. Harvie Wilkinson III and Richard Posner, two of the leading conservative legal thinkers and both appointed by Reagan.

Posner wrote that Scalia’s opinion employed “faux originalism” and that, when it came to the original meaning of the Second Amendment, Justice Steven’s dissent had the better argument. The “motivation for the Second Amendment” was only to protect state militias from being disarmed by the federal government, according to Posner. “The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.”

Wilkinson wrote a widely-circulated article that accused the Court of undermining states’ rights and legislating from the bench, imposing the majority’s values on the text. “Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

In November 2008, the conservative law professor Nelson Lund, one of the nation’s experts on the history and meaning of the Second Amendment and a devout originalist, gave a speech on the Heller decision at the annual convention of the Federalist Society at the Mayflower Hotel in DC. Lund had written numerous articles arguing that the founding fathers intended the Second Amendment to protect an individual right to bear arms.

But Lund said “Unfortunately, the Court’s performance is so transparently defective that it’s quite possible that this decision will become Exhibit A when people seek to discredit originalism as an interpretive method.” Scalia’s argument, Lund insisted, “is not an originalist or historical argument. If it’s any kind of an argument at all, it’s probably a disguised and incomplete form of the Breyer interest-balancing approach that Scalia disdainfully dismissed.”

Not only did the majority err in its historical inquiry, Posner said, but originalism itself was contrary to the original intent of the framers, who favored instead what he called “loose construction” of legal texts that sought to uphold the “spirit” of the law in changing circumstances rather than calcify the text’s meaning in a given era. Originalism was just an ideological gloss to a politically motivated decision. Heller is “not evidence of a disinterested historical inquiry”, wrote Posner. “It is evidence of the ability of well-staffed courts to produce snow jobs.”

In a dissenting opinion in DC v. Heller, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said: “The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves” (which was included in only one of the 13 state constitutions at the time).

The majority opinion dismissed the Court’s principal precedent concerning the interpretation of the 2nd Amendment – United States v. Miller (1939) – in which the Court, in a unanimous decision, held that the “obvious purpose” of the 2nd Amendment is to “assure the continuation and render possible the effectiveness” of the state militia, and the amendment “must be interpreted and applied with that end in view”. Following Miller, more than 200 federal and state appellate courts rejected 2nd Amendment challenges to a variety of gun laws. The Supreme Court had repeated opportunities to review these decisions prior to D.C. v. Heller and consistently declined to do so.

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the DC Circuit in Heller v. District of Columbia. The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the 2nd Amendment, found that the District of Columbia’s Regulations Act was an unconstitutional banning, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock”. Prior to this decision, the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.

But the Court also stipulated in its decision that “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”

Since that June 2008 ruling, more than 150 different cases have been heard in lower federal courts on the constitutionality of a wide variety of gun control laws. These courts have heard lawsuits in regard to bans of firearm possession by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. Also, cases have been heard on the constitutionality of laws prohibiting certain types of weapons, such as machine guns, sawed-off shotguns and/or specific types of weapons attachments. In addition, courts have heard challenges to laws barring guns in post offices and near schools and laws outlawing “straw” purchases, carrying of concealed weapons, types of ammunition and possession of unregistered firearms.

The courts have upheld every one of these laws as being constitutional. The basis for the lower court rulings is the paragraph near the end of the Heller ruling that states:

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms.”

Thus, even this radical shift in the long-standing interpretation of the 2nd Amendment which was consistent with the intent of the Framers, nevertheless left the door open for reasonable restrictions and limits on the manufacture, sale, interstate transport, possession, carrying and use of firearms.

In fact, Heller filed a subsequent suit against the District of Columbia for refusing to issue a concealed weapons permit for a semi-automatic pistol and the District Court ruled against him in 2010, finding that the court “concludes that the regulatory provisions that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment right to use arms for the purpose of self-defense in the home”.

In February 2014, the same Supreme Court rejected, without comment, a pair of 2nd Amendment appeals lodged by the National Rifle Association (NRA), keeping in place laws that restrict those under 21 years old from buying or carrying a handgun.

In one of those cases, the court refused to hear a challenge to a 1968 federal law that bars federally licensed gun dealers from selling handguns to those who are under 21 (sales of shotguns or rifles are permitted to those who are 18 or older, however).

In the second case, the justices refused to hear a challenge to a Texas law that forbids those who are 18 to 20 from carrying a concealed handgun in public. Since 1871, Texas law has prohibited individuals from carrying guns in public. However, the state legislature in 1995 said those who are 21 or older may obtain a license to carry a concealed weapon, while those who are under 21 may not obtain a license.

In defense of the law, the Texas attorney general said most states have similar age limits on the public carrying of guns by those younger than 21.

The high court’s action is consistent with a series of decisions in recent years refusing to revisit the question of whether firearms can be strictly regulated, particularly outside of the home.

No Concealed Carry

by Robert Riversong: may be reproduced only with attribution for non-commercial purposes

See also:

Lead, Crime & Societal Breakdown – A Cautionary Tale of Unintended Consequences

Guns, Race, the Law & Public Opinion – The Trayvon Martin, George Zimmerman Case

The Guns of Columbine

Ceremonial Violence – School Rampage Shootings

The NRA Story: From Rifle Club to Extremist Gun Rights Lobby: How the National Rifle Association evolved from a Shooting Club to a Terrorist Organization

District of Columbia v. Heller – A Radical Decision that Created a Middle Path

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21 Responses to “The Real Second Amendment”

  1. jack said

    Looks like your (sic) saying the Swiss have the system the US ought to have regarding firearms. Interesting.
    Congratulations on this article; too much gun debate is based on emotional sophistry.
    Unfortunately for this “true” interpretation of the 2nd Amendment, Abraham Lincoln banned the state militias after the Civil War. Barring their reinstatement, no originalist intent can manifest through the 2nd Amendment any longer.
    IMO the way this played out into the 21st could’ve been a lot worse.

  2. Riversong said

    Nothing in my essay would suggest that I support the Swiss system of arming all able-bodied men to form a state militia or allowing them to take government-issued weapons home with them (though this has been curtailed of late due to a rash of suicides).

    And Lincoln did not ban state militias, except in so far as those forces in rebellion against the Union were disarmed. In fact, he signed the Militia Act of 1862 to amend the original Militia Act of 1792 to allow blacks to serve as either laborers or soldiers and thereby earning their and their family’s freedom.

  3. Rob Miller said

    James Madison recognized the dangers of a standing army and an overgrown executive branch, pointing out the regularity they have been used to oppress the people they were supposed to defend.

    Beyond that, the Federalist Papers recognized the people original rights, insomuch that of our right and duty to cast off a government that has evinces the design to place us under absolute despotism. As John Locke put it, “To tell people they may provide for themselves, by erecting a new legislative, when by oppression, artifice, or being delivered over to a foreign power, their old one is gone, is only to tell them, they may expect relief when it is too late, and the evil is past cure. This is in effect no more than to bid them first be slaves, and then to take care of their liberty; and when their chains are on, tell them, they may act like freemen. This, if barely so, is rather mockery than relief; and men can never be secure from tyranny, if there be no means to escape it till they are perfectly under it: and therefore it is, that they have not only a right to get out of it, but to prevent it.” John Locke, Second Treatise of Civil Government

    As far as Shay’s Rebellion goes, Jefferson spoke about it in terms of reminding our general government that we retained the right to revolution and even called for those rebelling to be dealt with lightly because the rebellion should cause us all to look for any potential injustice, and correct it.

    For the sake of argument, let’s say the Second Amendment only addressed the militia, pointing out the body of the people was the only true safeguard of the public’s liberty. Does the Ninth Amendment not also respect the use of those arms for the securing and protection of our life, liberty, and property? And is it not as Samuel Adams put it, “the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defense of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property”? Is he also not correct when he continues to say, “If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave”?

    It appears to me, you are trying to make the argument that our Constitution, by its very nature, removes our original rights insomuch by defining all “rebellion” as an act of insurrection, while pointing to English common law as proof our unalienable rights can be removed. Which seems strange, since Jefferson recognized the distinction between the law and our unalienable rights, when he said, ”

    “If the innocent honest man must quietly quit all he has, for peace sake, to him who will lay violent hands upon it, I desire it may be considered, what a kind of peace there will be in the world, which consists only in violence and rapine; and which is to be maintained only for the benefit of robbers and oppressors. Who would not think it an admirable peace betwixt the mighty and the mean, when the lamb, without resistance, yielded his throat to be torn by the imperious wolf?” – John Locke, Of the Dissolution of Government, Second Treatise of Civil Government

  4. Riversong said

    Your comment is thoughtful but cherry-picks quotes that are largely irrelevant to the intent, purpose and meaning of the Constitution and the Bill of Rights.

    While John Locke provided some of the philosophical inspiration for the Founders and their Constitutional documents, he was NOT involved in the Framing and his ideas were revised to suit the conditions and culture of the New Nation, including changing his assertion of “life, liberty and property” to “life, liberty and the pursuit of happiness”.

    Madison was the most strident defender of the new Constitution and the most critical of those who believed that such a republican democracy with checks and balances would lead to tyranny. He felt that there was no need for a bill of rights as the structural limits built into the Constitution were sufficient to protect individual liberties.

    Madison relented for the sake of public peace and, ironically, became the principle proponent in Congress for the amendments that became the Bill of Rights, after its earlier proponents stopped pursuing it (because their real goal was to scuttle the new Constitution and federal government).

    The Federalist Papers were nothing more than propaganda pieces to counter the arguments and fears of the Anti-Federalists and help move the nation toward ratification of the Constitution.

    Madison had studied historical republics extensively as he was writing the Constitution, and believed that, with his new form of government – of, by and for the People – there would never be need again to rebel against tyranny.

    Jefferson was not even in the country during the debates over the Constitution or Bill of Rights and did not reflect the consensus of the Founders in terms of the balance of individual rights and the public good. Sam Adams was one of the most strident firebrands, hardly reflective of the general opinion of the Framers.

    The fact that George Washington came out of retirement to preside over the formation of a new government because of his concern over such insurrections as Shay’s Rebellion, and then organized a 13,000-strong federalized militia (under the newly-passed Militia Acts) to put down the Whiskey Rebellion, make clear what were the purpose and intent of the militia clauses of Article 1, Section 8 of the Constitution, the 2nd Amendment, and the Militia Acts of 1792.

    It’s not “for the sake of argument” to assert that the 2nd Amendment dealt ONLY with the need for a well regulated militia as a private duty for collective security – it’s unassailable history. And neither the 9th Amendment nor anywhere else in either the Constitution or Bill of Rights is there to be found a word about gun ownership for self-defense (or hunting).

    Those were simply NOT issues relevant to a federal/state compact, and were left to the states and to local ordinances to protect and regulate.

  5. Rob Miller said

    The Jefferson quote should read, “To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.”

    The John Locke quote was meant to highlight that the discussion of removing arms from society for the sake of “public good” has been had … and as Locke put it, disarming the innocent serves only to setup a system that advances the goals of the robbers and oppressors.

  6. Riversong said

    It was George Washington – NOT John Locke or even Thomas Jefferson – who most clearly articulated the thought of the Founders on the balance between individual liberties and the common good of society – what Jefferson himself championed as “civic republicanism”.

    A Letter of Transmittal from George Washington, addressed to the President of Congress and signed on September 17, 1787, accompanied and introduced the Constitution for ratification which stated succinctly and definitively what the Constitutional Convention had in mind. The second paragraph read:

    “It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be preserved; and, on the present occasion, this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests.”

  7. HarleyMike said

    Hmmm, seems this contradicts your GW letter. It seems, good old George had a change of heart.
    “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events occurences and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispenable. The very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that’s good.” — George Washington, Commanding General of the Continental Army, Father of Our Country and First President of the United States in a speech to Congress, January 7, 1790

  8. Riversong said

    I approved HarleyMike’s comment only because it so perfectly demonstrates the propensity of gun “rights” supporters to lie, deceive, fabricate and obfuscate to defend the indefensible.

    Not only would this “quote” not contradict Washington’s letter of transmittal to Congress that accompanied the Constitution, as that says not a word about guns, but it’s a flagrant invention.

    According to the “Pious Frauds: Or, If It Sounds Too Good To Be True…” website, Playboy Magazine used this quote in December 1995 and was forced to retract it in March 1996. This quotation, sometimes called the “liberty teeth” quote, appears nowhere in Washington’s papers or speeches, yet it appears almost anywhere gun apologists congregate.

  9. ReasonableVoice said

    Much as the article attempts to disclaim its validity — Preventing the legislatures from placing restrictions on the right to keep and bear arms was of a primary intention to secure the people against the mal-administration of the government.

  10. Riversong said

    I have found it an invariant truism that those who choose a handle such as “ReasonableVoice” demonstrate the exact opposite. This is a case in point. (ReasonableVoice’s email address links to a fundamentalist Christian website, which is reason enough to dismiss him as entirely unreasonable.)

    The myth of the 2nd Amendment as a protection against our own national government is precisely that. Before the adoption of the Bill of Rights, the States ratified the new Constitution, which defined only one crime – Treason: the taking up of arms against the national government. As the Amendment makes clear, the right of the People (a collective noun) to arms was only for the purpose of maintaining a well regulated militia. And the Constitution, in Article 1 – Section 8, makes clear that one of the three purposes of the well-regulated militia is to “suppress insurrections” of armed citizens, as George Washington did with the Whiskey Rebellion (and wished he could have done with Shay’s Rebellion, which occurred just prior to the Constitutional Convention and was a major impetus for a stronger central government with military powers).

  11. Kdruhm said

    Even prestigious (and left-leaning) legal scholars like Laurence Tribe and Sanford Levinson have come to accept the individual rights component in the Second Amendment. They did so as a result of exhaustive study into the history of the drafting process and belief systems of the drafters like Madison.

    The collective rights theory requires such a torturous reading of the Bill of Rights as it relates to the Constitution that it defies basic rules of statutory construction.

    It also requires one to remove from the founding documents any and all evidence of a fundamental right of self-defense, which is absurd given that this right must necessarily precede any of the other rights such freedom of speech or freedom to assemble.

    However, even under the proper reading of the Second Amendment, reasonable regulations are possible.

  12. Riversong said

    I approved Kdruhm’s comment because it is the quintessential retort of the libertarian ideologue who could not even bother to read my exhaustive treatise on the history, meaning and intent of the 2nd Amendment. Every false claim he makes has been thoroughly addressed and repudiated above.

    As I note in the section titled “The Radical Left Proposes the Individual-Rights Theory” in my essay on District of Columbia v. Heller, it was the left which invented the post-modern notion of an individual-right-for self-defense interpretation of the 2nd Amendment, which the libertarian right and then conservative gun fetishists adopted as their own.

    But the debates over wording, adoption and ratification of the Amendment makes unarguably clear that the Founders and Framers intended it ONLY to preserve the citizen’s militia for the collective defense, including the suppression of armed libertarian citizen uprisings, such as Shay’s Rebellion and the Whiskey Insurrection. They adamantly rejected any other proposed wording which mentioned self-defense or hunting, as that fell under the prerogative of the state legislatures, which at that time were immune from the limitations of the Bill of Rights.

  13. The way I see it, if someone doesn’t want to own a gun, that is their right. However, politicizing gun related tragedies is absurd. Calling for gun bans is also blatantly Unconstitutional.

  14. Riversong said

    I published Jeffrey Liakos’ comment merely to demonstrate that he did not bother to read my exhaustive treatise on The Real Second Amendment, and that he believes he can abuse this site to promulgate mindless commentary on guns and gun control.

    That he thinks the act of proposing a gun ban is “unconstitutional” demonstrates that he would shred the First Amendment protections of speech in order to defend his misunderstanding of the Second.

    The 1994 Assault Weapon ban was never challenged as unconstitutional, because it was not. And public mass shootings are as appropriate for political discussion as is any other form of terrorism.

    It’s quite revealing that almost all “gun rights” apologists are ignorant of US Constitutional and legal history and incapable of rational discourse on the issues. The Bundy Boys are prime examples.

  15. Jibarosoy said

    Great research on gun control. You answered a lot questions. What do you think of my argument?
    https://jibarosoy.wordpress.com/2016/06/11/no-constitutional-right-to-bear-arms/

  16. Riversong said

    Your argument is wrong. The Bill of Rights detailed mostly collective rights of “the people” that could be defended individually, but it is not limited to voters. The Founders accepted the common law right of self-defense and home protection, but did not believe that it had any place in the US constitution, which was principally a contract between the sovereign states and the federal government. The proper place to deal with gun issues at that time, including some rather strict gun control laws, was understood to be at the municipal and state legislative levels.

  17. ReasonableVoice said

    The oxymoronically-named “ReasonableVoice” attempted to have me publish his 1200-word comment, which was little more than the typically-misinformed shot-gun approach to argument, in which disparate and largely irrelevant criticisms and sources are thrown out with abandon in a vain and desperate attempt to discredit a well-argued and thoroughly-sourced treatise, such as the one above.

    I’ve encountered this fraudulent “expert” on the 2nd Amendment before, in on-line comment sections. It is enough to note that his email address is from a website that begins: “Jesus Christ – the way, the truth, and the life: Click HERE to learn how to receive eternal life.”

    This very UnReasonableVoice holds the same kind of irrational belief in the myths of the 2nd Amendment as s/he does in the myth of J’hoshua, the Jewish prophet and radical insurrectionist, being the son of God.

    [I will not publish his lengthy and ideologically-blindered comment, as it is not worthy of a rational response.]

  18. Frank Ormonde said

    First, very interesting read indeed. Your essay was intelligently presented and articulated well. That said, your responses to commenters reek of thin skin and leftist ideology/agenda. It is as if the essay and the responses were written by two different people.

    Secondly, I honorably served more than 20 years and will gladly defend you if the time comes to do so, just as I have defended our Nation against Her enemies. In this day and age, and being the gender and race you appear to be, you may hope that I, or a like-minded and trained person, is close by should you find yourself at the mercy of someone that would do you harm.

    I’ll say this, if guns are outlawed, I will be an outlaw. No man, legislation or legislature, elected or otherwise, will be allowed to exercise control over me, my family or my property. I reserve the right, given to me by God (if such an entity does exist) or by my own free will, to use any and all means necessary to protect myself, my family, my property, and those that are unable to protect themselves. I do not require permission from any man or government to do so. I will die on my feet before I ever serve on my knees. You don’t have to like it, nor do I care if you agree or disagree. It is what it is. It is as I have stated it to be.

  19. Riversong said

    In fact, Frank Ormonde, I am not only one and the same person, but cherish moral and intellectual integrity as one of the highest values. My historical understanding and perspectives on this issue are consistent with those of the Founders of the American Republic. Yours are the antithesis of what the Founders struggled and sacrificed for – particularly that highest of values: civic republicanism, or the willingness to sacrifice one’s personal security and private needs for the sake of the common good.

    Your diatribe is typical of right wing extreme libertarianism, completely disconnected from history and any accepted standard of moral legitimacy, and evidence of a pathologically narcissistic personality disorder as well as dissociative megalomania. Good luck with that.

  20. Mike Hansberry said

    Riversong,

    You asked the question – An individual or collective right? -but you did not answer.

    Are we to assume that the right to keep and bear arms of the second amendment had a different meaning than that right expressed elsewhere by the people of that time unless the text expressly states that it has same meaning as elsewhere?

    Logic tells us that the right would mean the same in the second amendment as the right to keep and bear arms was used elsewhere unless expressly limited. So what did the framers mean by the right of the people to keep and bear arms?

    I am sure you are aware what men such as James Wilson and Roger Sherman said of the right to bear arms. And what the earliest state court (Bliss v Ky) said.

    Your treatment of State v Buzzard leaves out the fact that the court did not limit the right to those in the state militia. Nor did the court in Aymette v TN. In fact no court limited the right to the extent (only in service of the state militia) that justice Stevens insisted was the prevailing understanding of the framers until the early 1900s.

    There is a whole lot of ground between “an unrestricted right to possess personal firearms” and justice Stevens’ “only in service of a state militia.” Those two positions represent the extremes of the argument (the purely collective right of Silveira having been discarded even by the looney left).

    So where do you stand?

  21. Riversong said

    The issue is not where I stand, but where the Framers of the Constitution and the Bill of Rights stood, and that is answered clearly and unequivocally in this analysis (or any other objective view of history).

    Roger Sherman was in agreement with Madison that a bill of rights was entirely unnecessary, as the Constitution already spelled out the extent and limits of federal power.

    Your “logic” is impaired by a misreading of history and a (probably deliberate) misapplication of state legal decisions such as Bliss, which dealt with the Kentucky constitution. The US Supreme Court did not address the intent of the Second Amendment until Miller (1939) because there was no controversy over the accepted understanding of that amendment as applying only to the well-regulated militia. Miller was a unanimous decision that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia. The Court, however, did address the 2nd Amendment previously in Cruikshank (1876) and Presser (1886), both of which supported the right of state legislatures to restrict the carrying of weapons, thereby undermining the alleged individual rights theory.

    It’s clear where YOU stand, and that is NOT with the Framers of the US Constitution.

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