Gun Control 101

Twenty-seven words. That's the full text of the Second Amendment to the U.S. Constitution. It reads:

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.

Until today, the U.S. Supreme Court has not made a formal announcement on whether this sentence means individuals have a right to own guns.

Here's the problem: The U.S. Constitution grants rights (or powers) to three groups: the Federal Government (e.g. the power to tax); the States (e.g. the power to police its citizens); or the People (e.g. the right to free speech). The rights mentioned in the Second Amendment do not pertain to the Federal Government. So, the question is, does the right to keep and bear arms apply directly to the People (to an individual) or to the States? How you answer this question ultimately determines whether or not you believe in an individual's right to own a gun.

Position 1: It's the State's Right

This position holds that the right to keep and bear arms is given to the States, or to the people collectively as members of a State. This right is granted to the States for the purpose of protecting and serving the State as members of an armed militia. In other words, an Individual is granted the right to carry a gun only if he is serving the State as a member of the militia.
Consequently, there is no individual right to keep and bear arms given directly to the people. Sorry, but James (Madison), Alexander (Hamilton) and the rest of the Founding Fathers just didn't trust you with that musket!

Position 2: It's My (Individual) Right

This position maintains that the right to keep and bear arms is given directly to the people in order to protect both the People's interests and the State's. Supporters of this position agree that one component of protecting the people's interests is to defend the State against invasion, but they contend that the right also extends to protecting personal interests such as property or family. Consequently, the right to bear arms is given directly to the People and not to the States.

There are persuasive arguments on both sides. One way to see the differences is to recognize that you can get the answer you want by simply emphasizing one part of the Amendment.
If you focus on the beginning two phrases--"A well regulated Militia, being necessary to the security of a free State"--you can interpret the Amendment as talking about militias and the importance they play within the States. Based on that, you can minimize the People's rights and make the focus of the Amendment on militias and the States. Under this interpretation, the next phrase should have been written as; "the right of the people (of a State) to keep and bear arms." So, it's the State's right.

If you focus on the third phrase--"the right of the people to keep and bear arms, shall not be infringed"--you can interpret the Amendment's reference to militia and the States as simply setting up the important part of the Amendment, namely, the right of the People. No need to revise the language, just ignore the preamble. It's the People's rights, plain and simple. Is one wrong or more right then the other?

Today, the Court determined that for the purposes of self-defense and hunting the Constitution specifically protects an individual's right to own a gun.

What's the Militia?

The Constitution commands that States are required to train and maintain a militia to "uphold the laws of the Union, suppress Insurrections and repel Invasions." In those days, the militia--men between the ages of 16 and 60--took the place of a national army. The Founding Fathers intentionally gave the States the right to have a militia, as opposed to creating a Federal army, as a way for the people to protect their State against the Federal Government. But over time the militia was replaced by city, state and federal law enforcement, and today the only militia recognized by the federal courts are the U.S. National Guard and the Naval Militia.

All material taken from "Why We'll Win" (www.whywellwin.com)

Comments

[DragonDefenseSupply]

I have a 1911-A1 .45 Gov’t Model Handgun. I am law-abiding and would use it to protect anyone I love or care about. I keep it by my side because in today’s uncertain world you can never predict unforeseen violence.
When our four fathers penned the Constitution of America, they believed that you have the RIGHT to defend your way of life.
If I was gunned down in cold blood, I would want my family to focus on the murderer. Please do me a favor and DON’T blame the gun. The reason is that the actual killer is NOT a registered law-abiding gun owner. The more time you waste trying to bring the “gun” to justice, the more likely you’re taking focus off who killed me. what if I was suffocated with a rope? Would you try to ban ropes? You see, it makes NO SENSE!!!
If people continue to allow individuals in our Government to take away our rights, they will. What will follow then? No knives, no pepper spray, or stun guns?
Simply put, if we do not stand up for ourselves, who will?
If you want to keep this right to bear arms, you MUST speak out to others how you feel. It is no longer acceptable to keep your voice to a whisper.
I’m not saying you have to involve yourself in politics. You can simply get involved by sharing your thoughts with like-minded individuals.
http://www.DragonDefenseSupply.com

[meanguy]

whil everyone is babbling over the deeper meaning in the placement of commas, it may be helpful to actually read what the framers had to say about guns, individual/vs/state rights, their definition of a militia, and their intent...it's not as if they were silent on the matter; but a left-wing forum such as this one doesn't exactly encourage any research that might lead a literate person to challenge the liberal narrative

[1will]

Call me crazy but I've always considered the term "People" to mean "People." When I think of the government, whether it be state, local or Federal, I don't think of it as "People." I doubt the Founding Fathers did either. Maybe they did. Maybe the government was meant to have Freedom of Speech, Assembly, Religion, etc instead of you and I and we are all deluding ourselves into thinking these are individual rights.
Then again, from reading the State Constitutions (many of which the Founders helped write) it seems like our forefathers thought of citizens as the "People" and self defense was considered a God given right.
http://www.guncite.com

[WorkingClass]

Well said. Thanks will.

[randyjet]

It would be more honest if this writer would also point out that there were NO police back then either. The only law enforcement official was the sheriff who called upon the citizens to take up their own personal arms to assist him in his duties in apprehending criminals. To stop criminals a hue and cry would be raised and ALL adult males were expected as a DUTY to assist in criminal law enforcement with their own arms in hand. So to say that the Constitution did not envision individuals having their own arms in their own homes is more than absurd. The only thing that was not in the home was the CANNON for the militia which was stored in the local armory.
It was also assumed that all citizens were responsible for protecting themselves and their families since there were no police. Doing so requireed guns. It is also the reason for our system of justice and all the protections afforded defendants. It was assumed that you took care of defending yourself, and then if there was a question as to whether or not your shooting the person and if he was in fact a crook, was right or wrong, would be decided by the jury.

[guyshomenet]

"Until today, the U.S. Supreme Court has not made a formal announcement on whether this sentence means individuals have a right to own guns."

Bunk. U.S. v. Cruikshank (1876) determined that both the 1st and 2nd Amendments were individual rights. Today's decision even mentioned this precedent. Come on Malcolm: at least have the good form to read a decision before commenting on it.

[malcolmfriedberg]

Guyshomenet - sorry, but you're wrong.

Cruikshank did not in any way "determine" that the Second Amendment guarantees a fundamental right to gun ownership. Here's the operative sentence from today's opinion about the case to which you refer (and their entire application of the case consists of one measly paragraph on page 47):

"The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation."

"IF ANYTHING" - I would say the Court doesn't agree with your statement about what the case stands for.

Furthermore, if Cruikshank answered the question, what was today about?

Come on Guyshomenet: at least...

[aofh]

It seems to me that the basic problem with arguments over the meaning of the Second Amendment is that the conditions in which the amendment was written and now are radically changed and the arguements do not take into accout those changes. Gun technology, manufacture and availablity were radically different in 1790 than they are today. Guns weren't being mass produced at the time and probably weren't as widely disseminated. Moreover, their maintenance and upkeep required much more discipline than today's guns.

What the argument should be over is what makes sense for our time rather than what was the framer's intent as the world we live in no longer resembles the world they lived in. I seriously doubt that had they been writing the amendment today they would have constructed it in the way that they did.

I also think that there is too much of an element of fantasy in gun arguments. Owning a gun is no guaranty that you are going to be able to defind yourself. There was a story in the news yesterday about a man and one of his sons murdered and another critically wounded by a disgruntled possessor of a gun at a traffic light. Today another story about an angry man shooting five coworkers then himself. The framer's didn'l live in such conditions.

[randyjet]

While the world has changed much, it still does not negate the fact or the principle that law abiding citizens are entitled to protect themselves with guns. To not allow citizens the right to keep guns for themselves for law abiding purposes is absurd. The framers of the Constitution took it as a given that all citizens would be active in government and their communities, including law enforcement. It was never their desire to simply have the people lie down and say let somebody else do it instead of me.
It is true that guns are not magic wands and will protect you under all circumstances, but one does give one a CHANCE to survive. Seat belts will not keep you alive necessarily in an auto accident, but it sure makes you chances better. People commit suicide and intentionally kill others using cars, think we need to BAN them too? The instances of such things are FAR in excess of such things for guns. Also, if the victims had been armed in those cases, they would have had a chance to survive, without a gun they had to simply passively DIE!

[bgregs]

First, I agree with randyjet, the changing of the times does not negate the fact that there are times where the only thing that can keep a person safe is their gun.

Second, if you really have a problem with the second amendment, the way to fix it is to further amend it, just like it would be with the fourth!

[BlackJAC]

Thomas Jefferson was fond of guns, too, but even he said that laws and institutions have to change with the times, equating not doing so to expecting you to still fit into the clothes you wore as a child.

[bgregs]

And that's why I think some sort of REASONABLE gun control needs to be practiced. I can agree with requiring people to register as gun owners, and I can agree with some sort of training program required before issuing such a license, but to simply ban handguns won't work under the 2nd Amendment.....

[malcolmfriedberg]

Agreed. "Grants" was a poor word choice, "identifies" or "recognizes" might have been better.

Your statement, "Also, the thought that the National Guard is a "state militia" is laughable," misreads my post. I was trying to explain that the term "militia" doesn't exist in the same way as the Framers used it ("today the only militia recognized by the federal courts are the U.S. National Guard and the Naval Militia." - which doesn't suggest that the NG is state-related)

Also, thank you for serving in the National Guard, I think it is a tremendously honorable thing to do.

[Chillinout]

Here is a third take on this Amendment. It gives the right to bear arms, both for a militia and for the individual, hence the comma in the middle of it.

Why does it have to be either/or?

[StinkyPete]

Gee, unlike most posters you sound like you actually read the darn thing

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

[WalterHiggins]

It doesn't "give" the right. It recognizes a pre-existing right.

[CTone03]

Yeah, you lost me with the whole "grant" thing. The Constitution doesn't grant rights:

"We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right." - DC vs Heller

Weird.

Also, the thought that the National Guard is a "state militia" is laughable. The NG is funded, in part, by the federal government; wears US Army uniforms; is subject to the UCMJ; serves federal service annualy during peacetime; is deployed throughout South West Asia as we speak under federal orders; using arms clearly marked "property of the US government." The NG is a reserve component of the US Army that is temp loaned to the states when they're not needed to do the federal governments bidding. I would know. I'm in the NG.

[JBS]

Your current membership in the National Guard not withstanding, you've got it exactly backwards. The National Guard belongs to the states, but can be called to national service by the federal government. This is dual status was written into the Constitution before any amendments were considered.

U.S. Constitution - Article 1, Section 8, Powers of Congress
The Congress shall have Power ...
(enumerated powers including paragraphs 14 & 15)
*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;

The second amendment implements this Constitutional requirement. The clauses of the second amendment are co-equal and co-dependent. Neither clause can be considered to stand alone.

The states require "a well regulated militia" in order to maintain freedom, and are required to provide organization & training in accordance with laws passed by Congress. In order for "the people" to meet their service obligation to the militia they must have the right to keep and bear arms.

Neither the state's right to regulate the militia nor the individual's right to keep arms is absolute.

[bgregs]

You're partly right. The National Guard is technically a portion of the US Army, and is subject to all the same rules as the US Army. However, under most circumstances they answer to their state's governor, NOT to the US President. There must be some crisis for the POTUS to give orders which can override a governors' orders.

[tellner]

Wrong. Nope. Not even.

The National Guard is not a "militia" by the legal definition of the word. And in any case, the "unorganized militia" is still defined under USC 10 as all males between certain ages capable of bearing arms. That has been expanded over the years to include people over 45. Looking at the Framers' debates on the subject it is abundantly clear that they meant the "militia" to be something separate from the military or any "Select militia".

Also, there are no rights given to government in the Constitution. The government has enumerated powers. The people have rights.

So inconvenient as it may be and unpopular and archaic it refers to a right which citizens have, not the power to raise armies or police forrces.

[BlackJAC]

In all seriousness, guns are too deeply ingrained here culturally to ever completely eliminate--I went through my DVD library one day and determined that if any show or movie therein lacked a gun, it was because it was set in an era before the things were invented. The real problem lies in how it seems the total whackjobs have taken over the advocacy of the things.

[BlueOnBlue]

I've resigned myself to the fact that the cost of a wide interpretation of the 2nd Amendment is approximately 80,000 gun deaths a year. Most of these are suicides, proving that the person most in danger from a gun is the one holding it.

We all have to die sometime, even the children killed by accidents or drive-bys or maniacs who think they just need to kill people. I'm sure those who believe in a completely free interpretation of the 2nd Amendment are satisfied with this.

I'm just resigned to living in one of the most idiotic societies in the world when it comes to gun ownership. Today, that was confirmed.

[RegularFolk]

So you would feel better if those suicides where done by jumping off a bridge?

[BlueOnBlue]

I guess if lots of homes were built atop high bridges, you might have a point.

Successful suicides are much less common in homes without guns. Guns enable more and quicker death. It's sort of what they're designed to do.

And then, there are the children. And the spouses. And whoever else drops by.

[luziannagirl]

First of all, never underestimate the role of the right of individual American citizens to own and bear arms as a significant deterrent to any who would misuse national governmental power. (Yeah, I know, W, Dead-Eye Dick, y'all probably talked about that a time or two, haven't you?!!!)

Secondly, 2nd amendment rights become especially valuable in rural and isolated situations where police are at best, far away. After a Katrina-type disaster ,when civil order has completely broken down for miles around, it may be weeks or months before police are back up to speed. Citizens who have exercised their rights to stay and protect their property, or who have come back after a disaster when civil order and infrastructure are still months if not years away from First World standards, are largely on their own regarding personal security.

One thing for sure, a shrunken and drowned government sure doesn't make for a very good protector of citizens.

So, my mortgage banker might cheat me, my grocer might poison me, and my government might let the levee wash away and flood my community, but I have complete and utter faith that my shotgun and my .380 will blow a hole bigger than Dallas in anybody trying to make me a crime statistic.

The most genteel and liberal Southern belle can never be too armed and dangerous.

[StinkyPete]

Police departments, local governments etc are not responsible nor liable for personal protection of citizens.

http://www.supremecourtus.gov/opinions/04pdf/04-278.pdf

is an example.

Individuals are responsible for their own personal protection, firearms are effective for that purpose.

[luziannagirl]

StinkyPete---

Yes, BUT...

Isn't it true that we expect government to try to achieve the admittedly unachievable ideal of the protection of every citizen against crime and terrorism? Sometimes I think they don't try hard enough, and don't try the right techniques, especially in certain neighborhoods and certain cities considered write-offs.

And, at least here, they are all grossly underpaid. I would love to see some of that gargantuan defense budget spent paying police and emergency workers instead.

That said, I think it boils down to whether or not we are willing to totally abdicate the responsibility for our own personal and family safety entirely to government, and to a degree, to our fellow citizens, vs whether or not we accept at least a measure of that responsibility as our own.

In an ideal world, government or paid security or bodyguards or Secret Service take care of the rough stuff and we just obliviously go on our merry way living our lives. Unfortunately, that's not the real world for most of us.

Perhaps our problems with gun violence could be addressed not by trying to remove the guns, but by addressing why people in conflict so quickly escalate to the most extreme methods Last time I checked, there was very little public funding into researching the biology of human violence, the knowledge of which would surely shed light on effective pathways to solutions.

[SkipHarv]

OK people time for an English lesson. In the written form of English it basically says that in a sentence with commas if you remove the text between them you should STILL have a complete sentence. So let us look at the 2nd amendment shall we.
"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."
In this sentence you have TWO COMPLETE THOUGHTS. The first is:
"A well regulated militia shall not be infringed."
This says that the States have a right to have a militia under the command of that state not the US Gov't. i.e. National Guard. Now the phrase: "being necessary to the security of a free state" just gives the REASON FOR the need of the militia.
Now the second and most hotly contested part of the 2nd Amendment is this:
"The right of the people to keep and bear arms shall not be infringed."
This is and should be how the SCOTUS ruled.
I hope that this is helpful for anyone who doubts that the framers of the US Constitution wanted the populous to be able to have firearms.

[NABNYC]

I disagree with your approach. The people were very reluctant to have a federal government (as opposed to just a series of local governments). They did not want a repeat of the dictatorship they saw from King George. The goal in the amendments to the constitution was to reaffirm that the federal government does not have the ability to do things like prohibit free speech, for example. But the basic framework of the constitution is as follows: (1) all rights and authority belong to the citizens; (2) the federal government has been given authority, by the citizens, to act on behalf of the citizens, in very limited fields, such as inter-state issues and foreign affairs. All other rights continue to reside with the people.

Arguably individuals have the right to own guns under my analysis. However, if the right of an individual to own a gun is not covered by the 2nd amendment then the state only needs a rational basis to restrict that right, such as keep guns out of the hands of children, criminals, the mentally ill. The real dispute is whether the right of an individual to own a gun is given special protection by the constitution. I say not, the neocons on the supreme court just said yes.

This collection of lackeys on the supreme court will do or say whatever Cheney tells them to, so their decision has no legal or logical merit, and hopefully will be thrown out when these judges are.

[bgregs]

You're right in your first paragraph, except that you state, "All other rights continue to reside with the people." Actually, the RIGHTS did still reside with the people, but all other POWERS reside with the STATES.

[jimpryor99]

How can anyone NOT see the word PEOPLE? Its the simplest thing in the world to figure it out once you learn to read. And gage doesn't understand the Constitution at all.

[bgregs]

HOW can anyone NOT see the words MILITIA and STATE? It's the simplest thing in the world to figure it out once you learn to read.

See what I did there?

[CanisLatrans]

So, if the right of "the People" to keep and bear arms means the People in service to the state militia...

...then that must mean that the right of "the People" to free speech applies to state-owned media companies.

And the right of "the People" to be secure from unreasonable search & seizure means state government employees when they're on state property.

I don't think that's the route we want to take with this.

[NL207]

You had best inform these ignorant people before they ruin the country:

"... Constitution shall never be construed to authorize Congress ... to prevent the people of the United States who are peaceable citizens from keeping their own arms" -- Samuel Adams

"The best we can hope for concerning the people at large is that they be properly armed" -- Alexander Hamilton

"I ask, sir, what is the militia? It is the whole people, except for a few public officials" -- George Mason

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation" -- James Madison

"Before a standing army can rule, the people must be disarmed" -- Noah Webster

"No Free man shall ever be debarred the use of arms" -- Thomas Jefferson

http://www.gmu.edu/departments/economics/wew/quotes/arms.html

[StinkyPete]

Yeah - you failed to read the decision, extensive effort was put into the semantic/g­rammatical analysis.

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf