The Second Amendment

MYTH: The first clause in the Second Amendment is merely a justification clause for the right to bear arms, and therefore people have the right to keep and bear arms for private purposes.
TRUTH: The first clause of the Second Amendment, the preamble, is "A well regulated Militia being necessary to the security of a free State," How important is this preamble in interpreting the Second Amendment? Historian David Thomas Konig, quoting from a widely used law dictionary of the eighteenth century, explains the importance of preambles in eighteenth century law: "The preamble, then, was more than merely a 'justification' for a statute, but a positive guide for understanding the purpose of the text of the statute in relation to other enactments. In the words of Giles Jacob, whose law dictionary enjoyed wide usage in the eighteenth century, 'The Preamble of a Statute which is the Beginning thereof, going before, is as it were a Key to the Knowledge of it, and to open the Intent of the Makers of the Act; it shall be deemed true, and therefore good Arguments may be drawn from the same.'102" http://www.historycooperative.org/journals/lhr/22.1/forum_konig.html

So the preamble of the Second Amendment is not superfluous as it would seem to be if it were merely a justification for the right. It is the "Key to the Knowledge" of the Second Amendment. Every clause in the Constitution must have some kind of effect. The preamble of the Second Amendment is no exception. Supreme Court Chief Justice John Marshall stated in Marbury v. Madison in 1803: "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible.6"

The U.S. Court of Appeals for the District of Columbia in Parker v. D.C. took the view that the preamble only modifies the word "arms" in the second clause. This is in contrast to the what the Supreme Court has stated previously: "The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." -United States v. Miller

Note that the Supreme Court explained that the Second Amendment (not just the word "arms") must be interpreted and applied with the militia end in view.

Even if the gun lobby were correct about the relationship between the two clauses of the Second Amendment, it is difficult to understand why a military term such as bear arms would be used to describe the right to own and carry guns for private purposes. Legal scholar Michael C. Dorf explains, "In my view, protecting a 'right of the people to keep and bear Arms' is a sufficiently odd way of protecting an individual right to possess firearms for rebellion, self defense, or hunting as to provoke further inquiry.

"As I note in the next Part, at the time of the founding, the phrase 'bear arms' was most commonly used in a military setting, and even today it carries a military connotation." (Chicago-Kent Law Review Symposium on the Second Amendment vol. 76, 2000: 291) This is further supported by a search of the Library of Congress website. Simply type in the words "bear arms" and click search.

In all the recorded debates of the First Congress about the Second Amendment bear arms is used to refer to military activity. Elbridge Gerry of Massachusetts, for example, voiced his disagreement with the conscientious objector clause in earlier drafts of the Second Amendment which exempted such groups as Quakers from bearing arms. He explained, “I am apprehensive that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are the religiously scrupulous, and prevent them from bearing arms."

Thomas Scott of Pennsylvania echoed these concerns, He said that under the proposed clause, conscientious objectors could not be “called upon for their services” and that in such circumstances "a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army.”

Gerry and Scott thought that exempting certain groups of people from militia duty could turn out to be a serious threat to the right to keep and bear arms. People opposed to war for religious reasons could still use firearms for private purposes so it’s difficult to see how such an exemption could threaten this right if the right is concerned with nonmilitary activities and has no necessary connection with a well regulated militia.

According to the modern day individual rights interpretation, people do not need to be part of the well regulated militia to exercise their right to bear arms. So according to this view, the Second Amendment does not require militia duty of anyone. If the Founders were concerned about a proposed clause that exempted certain people from militia duty it’s hard to imagine they would be enthused about an interpretation which has the effect of exempting everyone from militia duty.

Let's make an analogy. Would drink mean "drink any liquid" in the following sentence? "Alcohol impairing coordination, I shall not drink and drive." You could argue that the first clause does not modify the second clause and that therefore "drink" must mean "drink any liquid". However, anyone familiar with modern day English would know that the phrase "don't drink and drive" refers to driving while while intoxicated just as bear arms most often referred to military activity in eighteenth century English.

MYTH: The words "well regulated" in the Second Amendment don't refer to government regulation.
TRUTH: Gun lobby activists have claimed that "well-regulated" did not refer to government regulation in eighteenth century English. Their word games are easily exposed and refuted. In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen." Federalist 29

MYTH: The second amendment is a barrier to gun-control.
TRUTH: In US history, no gun-control law has ever been invalidated by a federal court ruling on second amendment grounds. Furthermore, the courts have upheld numerous gun laws as being constitutional. For example, Washington D.C.'s handgun ban has been in effect for over a quarter century and has survived every court challenge that has come its way. A possible exception to this is that the D.C. handgun ban which will be overturned if the Supreme Court agrees with the holding of the D.C. Court of Appeals.

MYTH: The modern day militia includes every adult citizen.
TRUTH: In US v. Miller the Supreme Court, explained that historically "the Militia comprised all males physically capable of acting in concert for the common defense." In more recently rulings the Supreme Court has made clear what the modern day militia is. "The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution....The passage of the National Defense Act of 1916 materially altered the status of the militias by constituting them as the National Guard." Maryland v. United States, 381 U.S. 41, 46 (1965). And in 1990 the Supreme Court ruled that "Notwithstanding the brief periods of federal service, the members of the state Guard unit continue to satisfy this description of a militia." Perpich v. Department of Defense, 496 U.S. 334, 355 (1990)

Sometimes it is argued that the unorganized militia is part of the militia of the Second Amendment. However, the Second Amendment specifically refers to a “well regulated militia” and the unorganized militia is not well regulated at all. The unorganized militia was created so that people who did not want to be part of the militia could avoid doing any militia duties.

"The term 'unorganized' did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia. However, the 1792 Uniform Militia Act explicitly allowed the states to determine who was exempt from militia service. So states divided their militias into two sections, the 'organized' militia and the 'unorganized' militia. In this way, the letter, though not the spirit, of the 1792 law could be complied with." http://www.adl.org/mwd/faq3.asp

We must remember that the Founders had recently fought a war with the British when they wrote the Second Amendment. They recognized the importance of having a nation that was militarily prepared. They were practical (in contrast to the libertarian fantasy that seems to be the basis of so much of the support for guns in our day). Do you think that they would have been satisfied with the unorganized militia which only qualifies nominally as a militia? This is why they included the words "well regulated" in the Second Amendment. They recognized that you have to have a system for arming and training the people and that simply expecting them to do it on their own is not practical. Imagine if the US Army did nothing to arm and train its soldiers but just expected them to do it on their own. How effective would it be as a fighting force?

MYTH: The Supreme Court ruling in United States v. Verdugo-Urquidez establishes that the second amendment protects an individual right.
TRUTH: This was actually a fourth amendment case. In the case the court commented on the meaning of the word people as used in the Constitution. "While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." (United States v. Verdugo-Urquidez 1990) Notice that the above quotation starts with "While this textual exegesis is by no means conclusive....". So the Supreme Court is admitting it can't be sure about its analysis.

The 8th Circuit Court of Appeals explained the truth about United States v. Verdugo-Urquidez- "Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 1060, 108 L.Ed.2d 222 (1990), Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. See Miller, 307 U.S. at 178, 59 S.Ct. at 818; United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); Cody, 460 F.2d 34. Whether the 'right to bear arms' for militia purposes is 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia." (U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)

The court correctly points out that this passage from United States v. Verdugo-Urquidez is dicta (an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding) so it's not the law. The court also pointed out that whether the second amendment protects a collective or an individual right the important thing is it's still right that exists only in connection with a well regulated militia.

Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.

Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution. "But the libertarian reading must contend with textual embarrassments of its own. The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.'....The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment's assembly clause, which textually abuts the Second Amendment, is the right of 'the people'--in essence, voters--to 'assemble' in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to 'the people' in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically. The Fourth Amendment is trickier: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.' Here, the collective 'people' wording is paired with more individualistic language of 'persons.'" (Source)

MYTH: All rights are individual rights.
TRUTH: In US v. Cruikshank (1875) the Supreme Court recognized that there are both collective and individual rights. The court stated, "Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights."

MYTH: The second amendment protects a right to bear arms outside the context of a well regulated militia.
TRUTH: The second amendment starts off with "A well regulated militia, being necessary to the security of a free State," Notice the word "being". The word "being" implies that the idea is not complete as in the following sentence- "The door being locked..." So you have to read the 2nd amendment as a whole. When the second amendment is read as a whole, it is clear that it protects the right of the people to bear arms within the context of an organized militia.

In United States v. Miller the Supreme Court explained that the purpose fo the second amendment was to "to assure the continuation and render possible the effectiveness" of the militia spoken of in Article 1 of the Constitution. "The Constitution, as originally adopted, granted to the Congress power -- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." (United States v. Miller).

Examining the meaning of the term bear arms further supports this conclusion. James Madison's first draft of the second amendment was "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." It is clear from this that the phrase "bear arms" refers to militia service and not to guns intended for personal use.

The American Bar Association has explained how the second amendment does not interfere with regulating weapons intended for private use. "Since today's 'well regulated militia' does not use privately owned firearms, courts since Miller have unanimously held that regulation of such guns does not offend the Second Amendment...As lawyers, as representatives of the legal profession, and as recognized experts on the meaning of the Constitution and our system of justice, we share a responsibility to the public and lawmakers to 'say what the law is.'" (Source)

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