The NRA recently concluded its 2010 annual meeting and as should be expected, there was the usual display of ignorance, pandering and stupidity over the 2nd amendment, mostly by politicians.There is no reason why gun enthusiasts need to be constitutional experts or historians and so their own ignorance of the 2nd amendment and what its about and what it means isn't really the issue, though the blatant dishonesty and distortion by the NRA is another story. But politicians have no excuse since they swear an oath to preserve and defend it.
There are only two approaches to the constitution and ironically, the one that chooses to interpret the 2nd amendment as having anything to do with individuals owning guns is not just the most liberal approach, it is liberal beyond ratiionality.
The other approach, whch is original intent, says that where the original intent of the founders is clear and unambiguous, it is that which must be applied. Liberal constituitional philosophy says disregard what the Founders intended and read the words here and now and interpet them to mean whatever you want them to mean.
Of course there are extremes on both sides. Extremists on the side of strict constructionism will say stupid things like Lindsay Graham did the other day at a hearing on terrorism where he said that you didn't have the right not to be searched before you get on an airplane because the founders never contemplated flying. The 4th amendment does give you the right against unreasonable searches but after 911 no one would argue that searching passengers and bags is unreasonable.
The other extreme is one expressed by those who think original intent make no sense, where you discard the intent and focus on only applying the words as you see fit and make them mean whatever you want them to mean.
The NRA ironically takes the most liberal approach, and to such an extent that they even get rid of the first few words of the 2nd amendment in their seal and literature and only include "the right of the people to keep and bear arms shall not be infringed". The whole point and intention of the amendment, " a well regulated militia being necessary to the security of a free state..." is just conveniently lopped off as if it doesnt matter.
Given that the Founders debated the meaning the need and purpose of the 2nd amendment for weeks and re-wrote it seven times making small word changes here and there as members of the First Continental congress tried to make sure the wording said what they meant it to say, discarding the first half the amendment because it doesn't suit your desires is not exactly standing up for the constitution which conservatives hypocritically are always claiming they do.
But its not the ignorance of the 2nd amendment that the NRA promotes that's the problem. Its the pandering of politicians, members of congress and even Obama who claims to be a constitutional scholar but who seems anything but, who actually take an oath to defend the constitution that is the biggest problem. They either know they are lying and pandering or they are ignorant and neither is acceptable for an elected official.
The meaning of the 2nd amendment is absolutely clear and I'm going to prove it in the best way possible -- with the words of the congress four days after the amendment passed in September of 1789, which in the Senate Journal, clarifies and states unequivocally what the purpose and meaning of the amendment is. There is also the entire debate over the amendment available to anyone who wants to see it and it can be found online.
The second amendment was all about the Founders concern that the individual states needed an armed and trained militia to defend each state against the possibility of attack by a foreign government or a future president trying to become a tyrant.
Many of the Founders were against the federal government keeping a standing army. They felt it was a threat to liberty. With no federal army the only means of defense against a foreign enemy would be state militias. Except after a long war many who served in the militia wanted no part of being in the military and the Founders were concerned about this and how necessary militias were to the sovereignty of each state, and so wrote an amendment that guaranteed each state the right to have its own militia and in the words of one Founder during the debates, " to train men to arms".
Given that just about all the colonists owned guns and knew how to use them, "training men to arms" obviously doesn't mean to train men to use a gun. Or to hunt. Or to take target practice. So it makes clear what the word "arms" means. It meant training them in military discipline and war and how to function as part of a well drilled militia in battle. It had nothing to do with giving people an individual right to own guns because people already owned them and no one ever brought up the idea of whether people should be allowed to keep them. The idea that they did is patently absurd.
Owning a gun was a given. Like owning an axe or a hammer. It wasn't controversial. In fact, it was such a given that an early version of the amendment stated that just because a man owned a gun, that wouldn't compel him to serve in the militia. That alone is proof that the issue of the 2nd amendment never had anything to do with whether people should or should not have guns. It wasnt ever part of the debate. And in no way relates to the second amendment.
Here is a brief history of the evolution of the second amendment, starting with a proposal to prohibit the federal government from having a standing army without 2/3rds of the states agreeing:
August 17, 1789: "A standing army of regular troops in time of peace, is dangerous to public liberty, and shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority." This amendment was voted down.
After a week more of debate on how to handle the issue of a standing army and the defense of the state ( not the self defense of an individual) this amendment was voted on:
August 24, 1789: "A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
"Religiously scrupulous" meant people like Quakers or others who had religious beliefs and a conscientious objection based on religion against going to war. But it further clarifies what the Founders meant with the words " to bear arms". "To bear arms" means to go to war. It means to serve in military service as the above version makes clear. There were plenty of Quakers and others who owned guns to hunt and ward off predators to their livestock who wouldn't use them in war. "To bear arms" does not mean to own guns or use them for hunting, self defense or target practice as some ignorantly insist. It means only one thing -- to go to war in defense of the state or country and to render military service.
The Senate objected to certain words and concepts in that version of the amendment they felt might be confusing and after another week of debate agreed to strike certain words and voted on this amendment:
"A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed."
After voting to change "best security" to " necessary to the security of " they voted on the proposed amendment on Sept 4, 1789 and passed it. This one read:
"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."
This is the 2nd amendment as it is today and this is what was recorded in the Senate Legislative Journal dated Sept, 9,1789 explaining the sole meaning and purpose of the 2nd amendment only four days after it was passed by both houses of congress:
"That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in the actual service in time of war, invasion or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own State."
Not a word about a right of individuals to own guns. Nothing. It was never even discussed because it was never even an issue.
Whatever laws governing gun ownership exist, is a matter of each elected state or local government to decide, not the constitution. For that gun owners or the NRA can lobby anyone they want support anyone they want and spend anything they want to get legislation that favors them. But it has nothing to do with the constitution and the 2nd amendment has nothing to do with an individual right to own a gun.
Owning a gun was a given. Like owning an axe or a hammer. It wasn't controversial. In fact, it was such a given that an early version of the amendment stated that just because a man owned a gun, that wouldn't compel him to serve in the militia. That alone is proof that the issue of the 2nd amendment never had anything to do with whether people should or should not have guns. It wasnt ever part of the debate. And in no way relates to the second amendment.
Here is a brief history of the evolution of the second amendment, starting with a proposal to prohibit the federal government from having a standing army without 2/3rds of the states agreeing:
August 17, 1789: "A standing army of regular troops in time of peace, is dangerous to public liberty, and shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority." This amendment was voted down.
After a week more of debate on how to handle the issue of a standing army and the defense of the state ( not the self defense of an individual) this amendment was voted on:
August 24, 1789: "A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
"Religiously scrupulous" meant people like Quakers or others who had religious beliefs and a conscientious objection based on religion against going to war. But it further clarifies what the Founders meant with the words " to bear arms". "To bear arms" means to go to war. It means to serve in military service as the above version makes clear. There were plenty of Quakers and others who owned guns to hunt and ward off predators to their livestock who wouldn't use them in war. "To bear arms" does not mean to own guns or use them for hunting, self defense or target practice as some ignorantly insist. It means only one thing -- to go to war in defense of the state or country and to render military service.
The Senate objected to certain words and concepts in that version of the amendment they felt might be confusing and after another week of debate agreed to strike certain words and voted on this amendment:
"A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed."
After voting to change "best security" to " necessary to the security of " they voted on the proposed amendment on Sept 4, 1789 and passed it. This one read:
"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."
This is the 2nd amendment as it is today and this is what was recorded in the Senate Legislative Journal dated Sept, 9,1789 explaining the sole meaning and purpose of the 2nd amendment only four days after it was passed by both houses of congress:
"That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in the actual service in time of war, invasion or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own State."
Not a word about a right of individuals to own guns. Nothing. It was never even discussed because it was never even an issue.
Whatever laws governing gun ownership exist, is a matter of each elected state or local government to decide, not the constitution. For that gun owners or the NRA can lobby anyone they want support anyone they want and spend anything they want to get legislation that favors them. But it has nothing to do with the constitution and the 2nd amendment has nothing to do with an individual right to own a gun.
There is no such individual right expressed by the second amendment or anywhere else in the constitution no matter how much some ignorant or pandering politician wants to stand on their head and say it does to get campaign contributions.. If it did, the clause " shall not be infringed" would invalidate every gun law in the country. And "to keep and bear arms" couldnt be more clear. It means to render military service not go target shooting. The only way "to keep and bear arms" can relate to the gun someone has in their closet is to stand the constitution on its head, ignore the Founders intention, throw out the true meaning of the language of the amendment and make the words mean whatever you feel like making them mean today. Anyone who does that and claims to be a conservative just threw all their principles out the window to get what they want.
For gun owners who don't mind that politicians lie and pander to them about the 2nd amendment because they think its to their benefit, keep this in mind: they will lie and pander and be stupid about other things too if they are allowed to get away with it and aren't held accountable.And the next time you may not be too happy about the things they lie and pander about, Which though it isnt in the constitution, is guaranteed will happen again.
For gun owners who don't mind that politicians lie and pander to them about the 2nd amendment because they think its to their benefit, keep this in mind: they will lie and pander and be stupid about other things too if they are allowed to get away with it and aren't held accountable.And the next time you may not be too happy about the things they lie and pander about, Which though it isnt in the constitution, is guaranteed will happen again.
Agree!! the 2nd amendment was to protect us from tyrants among other reasons. I'm not even talking of Obama, but just any president (Nixon was close to declaring martial law).
ReplyDeleteGreat article and written for any person to read and understand.
I would have to disagree... the phrase "well regulated militia" did not mean the same thing during the drafting of that document that it would mean today.
ReplyDeleteJames Madison's initial proposal:
"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
Madison, Jefferson, Washington - all have many well known quotes from the period that specifically outline their views on the second amendment - and the rights of individuals to bear arms.
In the latter half of the 20th century there was considerable debate on whether the 2nd Amendment protected an individual right or a collective right.[95] The debate centered on whether the opening or prefatory clause “A well regulated militia being necessary to the security of a free State” declares the Amendment’s only purpose, or if it merely announces a purpose to introduce the main or operative clause “the right of the People to keep and bear arms shall not be infringed”.
ReplyDeleteAnother interpretation holds the Second Amendment contains an opening prefatory or amplifying clause followed by an operative clause. The opening phrase is meant as a non-exclusive example—one of many reasons for the amendment [19] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.[96] In Heller, the Supreme Court endorsed this description of the Second Amendment.[97] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[98]
Under this interpretation, the opening phrase is considered essential as a pre-condition for the main clause.[99] This was a grammar structure that was common during that era.[100] This grammatical description is considered by some to be consistent with the concept of the Second Amendment as protecting a collective right to firearms for members serving in a select militia.
taken from:
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
Even if the first part of the 2nd Amendment is not prefatory, and we were to assume that the right to bear arms was meant to be limited to the militia; the militia is comprised of every able bodied man between the ages of 17 - 45. The Dick Act of 1903 states that the "organized militia" was to be called the National Guard, and that there was also a separate "unorganized" or "reserve" militia which consisting of said males between the ages of 17-45. It also clarified the right of states to establish their own militias, or "State Defense Forces" that could not be called into federal service. It is up to the states to define the qualifications of their individual unorganized state militias. In the end, regardless of whether or not the first part of the 2nd Amendment defines a qualification, or if it simply describes a purpose; it does not change the fact that your average ordinary everyday citizen is automatically in the militia by US code, and therefore QUALIFIES them to bear arms even if such qualification is not required.
ReplyDelete"Even if the first part of the 2nd Amendment is not prefatory, and we were to assume that the right to bear arms was meant to be limited to the militia; the militia is comprised of every able bodied man between the ages of 17 - 45."
ReplyDeleteIt is not which, aside from simply applying the actual meaning of the words in the second amendment it also helps to do what the 5 conservative members of this court clearly did not do which is read the actual debates which exist and follow the history.
There is a version of the 2nd amendement which specfically excludes any man "who has scruples against bearing arms". If you read the debates you know they were referring to Quakers. Quakers owned guns. They used them to hunt as did most people and to protect their livestock from predators. What they religiously could not do is kill another person. The reason this clause had been there originally was to exempt Quakers from "bearing arms" which, if one knew nothing else, would make it clear that "bearing arms" has NOTHING to do with owning a gun which Quakers did. "Bearing arms" meant only one thing -- going to war. And that and that alone is what the 2nd amendment is all about -- giving the states the right to maintain their own armed militias (whether men brought their own guns or they were provided by the state which they were in many cases is besides the point) and giving them the right to go to war against any enemy that threatened their sovereignity. That's it. It had nothing to do with anyone's individual right to own a gun which has always been left up to the states, towns, cities, hamlets or villages to enact whatever gun laws they wished. Including a town banning them if thats what they wanted to do. It would have no affect on a state militia. Which is why every supreme court in it's first 224 years when having to rule on whether the 2nd amendment had anything to do with an individiual right to own a gun ruled it did not. Which is why the 2008 decision, which Scalia almost immediately undercut in his own opinion, was one of the most corrupt in the history of the court. Alito's opinion quoted from Blackstone's Rights of Englishmen as a basis for the decision which isnt even American much less the constitution itself, and overturned 224 years of court precedent with no constitutional basis whatsoever based on the concept of Original Intent.
If one wants to make an argument about the 2nd amendment using the most liberal interpretation, that is, the words can mean whatever we want them to mean now and what the Founders meant and intended means nothing today, I have nothing to say about that. But based on Original Intent and what the amendment was created to do and the problem it was created to address it has absolutely nothing to do with a right to own a gun.