Wednesday, April 28, 2010

No Virginia, there is no 2nd amendment right to own a gun

There was a demonstration in Virginia over the weekend consisting of gun owners demonstrating for what or against what no one really knew and maybe they didn't either. But it probably had to do with a second amendment right for them to own guns that doesn't actually exist. And never did.

If there is one thing both conservatives, many Democrats and most journalists have in common its their constitutional ignorance of the second amendment and their false belief that the second amendment has anything to do with an individual's right to own a gun.
It doesn't and it never did.

But to listen to Obama, and many Democrats and liberals like Ed Schultz the other night on MSNBC, along with conservatives, they assume they know what the amendment means, assume it gives individuals the right to own guns, and as is the case with so many mistaken assumptions made in America, they are all wrong.

How do we know? Let us count the ways. First, there has never been one single Supreme Court ruling that has held the Second Amendment gives people the right to own guns ( "Heller", which many advocates like to quote, actually skirted the entire issue and focused instead on the status of the District of Columbia as not being a state and ducked on the whole question of the second amendment and states rights). You would think with all the controversy surrounding guns that somewhere along the line there would have been a case or a challenge where the Supreme Court addressed the issue, but there has never been an affirmation of the Second Amendment applying to individuals. Ever.

"Guns in America" clearly points this out when it says:

The public debate over the meaning of those words ( the Second Amendment) has raged for decades, but the U.S. Supreme Court hasn't ruled on the Second Amendment since 1939, in a case called U.S. v. Miller. The 25 paragraphs of that unanimous ruling have been regarded by lower federal courts as a definitive decision that the Second Amendment was designed to preserve state militias, not to give individuals an absolute right to keep and bear arms. "

The irony of the Second Amendment and conservatives is that you would have to be the most liberal of constructionists to think the second amendment applies to individuals. A conservative approach to the constitution -- a strict construction based on original intent ( knowing what the founders intended) makes it clear that the second amendment was ONLY about giving the states the right to have their own militias and didn't speak at all in any way to individual gun ownership.

In "Origins of the Second Amendment", Justice Story, a 19th century Supreme Court Justice who wrote " Commentaries on the Constitution" said as much. This is what he wrote as to the meaning of the second amendment and how he saw the second amendment as the neccessity to have a well drilled militia that had military discipline:

"it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline......How it is practicable to keep the people duly armed without some organization, it is difficult to see.

"Origins of the Second Amendment" goes on to say this about Story's 19th century take on the second amendment:

Story’s invocation of the grand palladium of liberty concerned the right to bear arms in a well regulated militia, and had nothing to do with hand guns or other weapons owned primarily for individual self defense.

And for good reason. In 1789 America, owning a gun was like owning a lawnmower in Scarsdale. Everyone owned guns. It wasn't controversial. The greatest minds the country ever had at one time in one place did not debate the second amendment for weeks and write 7 different versions, changing a word here, and another one there, in order to write an amendment to the new constitution to give people the right to own a lawnmower.

The entire and sole purpose of the second amendment was to give the states the right to have their own armed militia for the defense of the state. It had nothing to do with individuals owning guns for their own self defense. That already was the case. The second amendment guaranteed the states the right to have and maintain ( "keep and bear) arms for the defense of the state as a whole. And not just armed with guns. With any weapons they wished including cannon, war ships, rockets, anything, which is why state's have armories. All anyone has to do to understand the second amendment is read it.

The subject of the amendment is " a well regulated militia". The use of the word "people" then and now means the collective "people", the state, not an individual. That's why when the constitution refers to a states right it uses the word " the people" and with individual rights it uses the word "person". The second amendment is about a states right, the 5th amendment is about an individual right. Need more proof? Every single crime brought to trial in every court in every state in America is titled" "The People vs. So and So." Not the name of the victim against the perpetrator. The term "the people" has always meant the collective not the individual.

As for the rest of the amendment, ask anyone who thinks the second amendment gives individuals the right to own guns what they think the words "to keep and bear arms" means and its a good bet 100 out of 100 will get it wrong. They always do. Its like what Will Rogers said, it's not what people know that makes them look stupid its what they think they know that ain't so.

The constitution was not written by people who didn't know how to write and didn't understand the meaning of words. And the second amendment which is simply one long sentence was rewritten seven times with minor word changes here and there so the meaning was absolutely clear. Every word mattered and every word meant exactly what the Founders intended them to mean.
The term " to keep and bear arms" had a specific meaning in 1789. It didnt mean the right to keep a gun under your bed, in the trunk of your car, go hunting, take target practice or put a dress on it and take it dancing. And in 1789 America the word " arms" didn't mean your rifle or hand gun either. It meant what the word "arms" means today and has always meant going back centuries to the middle ages -- it means weapons of war.

Gun dealers and arms dealers are two entirely different things.. "Arms" are not just guns. "Arms" means weapons of war. The "arms race'" between the U.S. and the Soviet Union did not mean which country had more people with guns in their closets. The right to keep and bear arms guaranteed by the constitution guaranteed the states the right to have their own militias and to have any weapons of war they chose which is true to this day. There is no restriction on what arms each state's National Guard can have because the constitution guarantees it. They have tanks, they have fighter jets, they have bombers and many of them were used to fight in Iraq.

The right to keep and bear arms is not about what guns you have. It does not guarantee that you have the right to walk into a 7-11 carrying your gun and if you disagree, try doing in New York. They'll find a nice cell for you maybe next to Plaxico Burress the former NY Giant wide receiver who is doing 3 years in jail for carrying a gun in New York City.

And what about the words " to bear arms"? It does not mean to go hunting or to take your gun to a gun show, go target shooting, show it off or even to shoot a burglar. In 1789 America and to the Founders who authored the amendment "to bear arms", meant only one thing -- to go to war. And the second amendment gave the right to each state to do just that -- to go to war with the weapons the constitution guarantees them to keep to defend their sovereignty against any enemy whether it be a foreign enemy washing up on their shores or a president who decides to become a dictator. That was the whole purpose for each state having their own "well regulated" which means well drilled and prepared, militia.Those militia's have morphed into the National Guard each state has today.

While we hear a lot of nonsense whether its from Obama, journalists, politicians or gun owners about second amendment rights, not one of whom is a constitutional scholar (and that includes Obama) Warren Burger is just such a scholar. Burger is also the former chief justice of the United States Supreme Court, appointed by Richard Nixon and a card carrying conservative. In a television interview on PBS in 1991 with Jim Lehrer, Burger said the second amendment, as it relates to an individual's right to own a gun,

" has been the subject of one of the greatest peices of fraud, I repeat the word 'fraud' by special interest groups on the American public that I have ever seen in my lifetime".

Finally, the second amendment's last clause is more proof that it doesn't apply to individuals. The clause says " shall not be infringed". Go look up the word " infringed". If the second amendment applied to individuals every gun law in every state,city,county, town and village that in any way restricted, limited, regulated, interfered with or banned people from carrying guns, any kind of gun, anywhere, would be unconstitutional since its clear that the right granted by the second amendment "shall not be infringed". That means not reduced, restricted, interfered with, regulated, or altered in any way. In other words the right granted in the second amendment is absolute and cant be tampered with.

The second amendment has nothing to do with an individual right to own a gun. Those rights are left up to individual states and localities to decide what their gun laws are going to be. Which is why they vary from state to state. The fifth amendment does not vary from state to state. Neither does the first, 4th, 14th or any of the others. No Virginia, there is no constitutional right to own a gun. And never was.

The second amendment is solely a states rights issue regarding "well regulated militias". And if anyone doesnt think so, load this: no law by any state can trump whats in the constitution. So if the federal constitution gives individuals the "right to keep and bear arms" and that right "shall not be infringed", what is Plaxico Burress doing sitting in prison for 3 years for carrying a gun in his pocket in New York City? Why isnt the New York gun law "infringing" on "the people's: right to keep and bear arms?

Whatever rights gun owners have are the rights the state of Virginia, or any other state wants to give. Or take for that matter. And the great irony is that the only possible interpretation of the second amendment that could cause it to apply to individuals could only be the most liberal approach to the constitution possible, discarding the Founders intent, reading the words of the second amendment any way you choose and to have them mean anything you choose.

Which is not to say some conservative members of the Supreme Court wouldnt throw away their conservatism and their principles and take a liberal view for the sake of politics. It's been done before on other issues and no one can say it could never be done again..

UPDATE: There seems to be a lot confusion ( surprise, surprise) over the Heller decison involving Washington D.Cs's ban on handguns which was reversed by the Supreme Court. That decision, if one wants to read it, has nothing to do with the issues regarding whether the 2nd amendment is a states right or an individual right. If Heller decided the issue in favor of individuals, every gun law in the country would now be unconstitutional. Heller simply said that Washington DC was a special case because it is NOT a state, and therefore not entitled to anything the constitution grants to states as a states right. As everyone knows they dont even have represenation in congress and its congress that approves their budget.

Every constitutional law expert agrees on one thing -- that in terms of the controvesy over the 2nd amendment, the Supreme Court punted on Heller and decided it very narrowly only as it applies to Washington DC as a one of a kind case, and the decision has no affect on gun laws in any of the other 50 states.


David said...

Sorry Tom but your analysis just doesn't hold water. Reading the Second Amendment by the basic rules of English is antithetical to your premise. On only one point are you correct, the amendment does not 'grant' a right it merely recognizes a right that preexists the Constitution, England, Rome, Greece, and even civilization beyond recoded history. The right of self defense and defense of others is inherent in all beings, sentient or not.

Anonymous said...


Here is a link to the discussion at the First Federal Congress (in 1789), where they discussed the proposed amendments to the Constitution:

If you can find anyplace in that discussion where the members discussed a personal right to own or carry a gun other than as part of a militia, please show us.