The Second Amendment: The Real Issue

Too many participants in the debate over what the Second Amendment means have framed the issue incorrectly.

The question should not be whether the amendment protects an "individual" or "collective" right to own guns. That is a red herring, one that leads partisans on either side to look at only half of the Amendment -- either the "Militia purpose" clause, or the "keep and bear Arms" clause.

As I argued earlier, we have to read all the words in the Second Amendment, not just the ones we like.

Instead, the real issue in this debate is what purpose the amendment was written to protect, and how, therefore, the Second Amendment should be interpreted and applied. Fortunately, the Supreme Court clearly spoke to that question in the 1939 Miller decision:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the "well regulated Militia,"] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

So, according to the U.S. Supreme Court, the Second Amendment has a militia purpose. Not a hunting purpose. Not a self-defense purpose. Not a target-shooting purpose. Not a "private purpose." Just a militia purpose.

Unfortunately, however, the lower-court opinion in the D.C. gun case ignored this nearly 70-year-old precedent and invented a rationale to invest the Second Amendment with a non-existent "private purpose."

This is the central reason why that decision was clearly erroneous and should be reversed.

Today I post the fourth installment of the Brady Center Legal Action Project's thorough criticism of the appeals court decision in the D.C. gun case, now before the U.S. Supreme Court. It is titled, "Parker and 'the People': How the Parker Court Obscured the Real Issue in the Second Amendment Debate", and it explains what the real issue is today before the United States Supreme Court.

I include an excerpt here, with a link to the full text at the end:

This installment addresses the Parker court's "lead-off" argument: that the use of the term "the people" in the Second Amendment itself establishes that the right guaranteed by the Amendment extends to private purposes such as hunting and self-defense and is not confined to service in a "well regulated Militia."

The Parker majority wrote that "[I]n determining whether the Second Amendment's guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right - 'the people'." Noting that the term "the people" is found in the First, Second, Fourth, Ninth, and Tenth Amendments, the court asserted that it "has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation." The majority concluded: "The natural reading of the 'right of the people' in the Second Amendment would accord with usage elsewhere in the Bill of Rights." "The people," according to the Parker court, cannot mean "some subset of individuals such as 'the organized militia,'" and also cannot mean "the states." Thus, the Parker court concludes, "the right in question is individual.

The court, however, simply obscured the real issue. There is no question that the Second Amendment guarantees a right to "the people" -- that much is clear from the text. The issue is: What right does the Second Amendment grant to the people? Is it the right to possess and use guns for private purposes like hunting or self-defense, as asserted by the Parker majority, or rather the right to be armed for purposes related only to service in a government-organized militia?

Read the full installment here [pdf].

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

Comments

[mike101]

And look at what all of these "common sense gun laws" have done for this country. While you're here, click on the link to crime stats in that lovely, gun free Utopia of Washington DC. No wonder these people want their rights restored.

http://www.disastercenter.com/crime/

[Thirdpower]

The myth of the decreasing gun owners:

Or :More fun w/ statistics.

According to the VPC:

During the period 1972 to 2006, the percentage of American households that reported
having any guns in the home has dropped nearly 20 percentage points: from a high of
54 percent in 1977 to 34.5 percent in 2006.

That's all well and good. Now let's look at the real numbers. In 1970, the number of households was 63,450 according to the Census Bureau. In 2002, the number of households was 111,278.

For those of you math impaired, that's an increase of 75% . Totaling about 34,000 homes in 1972 vs. over 38,000 homes with firearms in 2006. Now remember, that's households.

Their next claim is:

During the period 1980 to 2006, the percentage of Americans who reported personally
owning a gun dropped more than nine percentage points: from a high of 30.7 percent
in 1985 to a low during the period of 21.6 percent in 2006.

Once again, all well and good.

Population of the US in 1980 :225, 349,000
Population of the US in 2006 : 299,400,000

That's an increase of 25% in population. Or 65.25 million owners in 1980 vs. 64.5 million in 2006. That's statistically insignificant.

Notice the way they worded that though. "From a high in 1985" after claiming a period from 1980. If you look at the data, the reported numbers from '84-'85 jumped up 5%. An increase in ownership of nearly 12 million in one year? Followed by a drop of almost 6 million two years after and another 6 million the year after that? I'ld like to see the numbers proving that one.

So as much authority is given to the GSS, it's still all based on what people choose to answer on a phone survey.

To show this even more clearly, another phone survey of a similar number of people has personal ownership at 28% and "in home" at 42%. That's a difference of nearly 20 million people.

[shedances]

I suspect now, that most of the progun individuals posting here are simply kooks. There's no way to tell if there's a human being at the other end of the screen ... or a well-trained dog typing!

Still, it's hard not to get alarmed by what they post here ~ the majority of the time ~ regarding their so-called gunrights.

I have little pity for them, when they start complaining about being misinterpreted. I am now beginning to think that they lie about everything, including time in the military, to gain greater credibility & new 'fans' to their sick gunrights agenda, IMO.

KELLI

[dvcrsn]

Kelli--I see you misquoted me again--write all you want to, but unsubstatiated opinion has very little place in a reasoned discussion--and logorrhea only does harm to your own side.

[Thirdpower]

Here's another statement from Hemenway:

"The majority of Americans who die unintentionally from firearms are under twentyfive
years of age." No date is given for this claim but one can assume it's for 2003 or 2000, depending on the cited paper.

According to Wisqars, in 2004, there were 649 unintentional deaths by firearm for all age groups. For the ages of 1-25, there were 247. 38%.

Assuming he stayed w/ the "early nineties" wording before switching over to 1996-2001 (as looking at each individual year shows he did), the numbers for 1990-1994 for under 25 were 3926/7143. 55%

For 1990 alone it was 772/1416. Still 55%.

True, that's a "majority".

By 2000, however,(three years before he finished this report) it was 306/776. 39%. Not a majority. The same holds true since at least as early as '96. Over three years before his self cited other paper.

So even assuming he used the same wording from his 2000 paper, it would seem he would have to added over a decade of pre-'96 data to more current to come out w/ a "majority" or he intentionally used old data to make a current claim. Since he cites having accessed WISQARS for numbers in 2004, either way it shows nothing but a case of blatant intellectual dishonesty.

And to prove that case, here's an e-mail he sent to an individual I was in a debate w/ and used this information:

****** is correct that the under age 24 no longer account for the majority of accidental gun fatalities. The sentence in the book was correct when I originally wrote it (probably in 2000 or 2001 when data were available for the 1990s up to 1998) but the sentence should have the dates specified, or a citation.
Cheers,
David

At least he admits to not being current and not updating his work since he cited he checked Wisqars in '04. Too bad it wasn't true in '98 either and hadn't been for at least three years.

[shedances]

I came back online to check the status of my last post & found several false accusations, flying in my direction, from the likes of "dmeadows," "dvcrsn," & others.

I find it ironic ~ if not disturbing ~ that those people who have attacked me viciously & personally on nearly every Brady blog I've responded to (and with such false assertions that could cause real harm to someone's reputation if their identity was known) are now accusing me of libeling them.

This is wrong ... and speaking of bad Internet behavior: Many of you have been trolling me here by joining my userprofile "fan" page ~ when you most definitely have not been fans. This is what I consider to be harassment, & it needs to stop.

Next, though you all should research this on your own time ~ there are four "private individual" requirements for meeting libel standards: Identification, Publication, Harm, and Fault.

A subject's identity (not unknown persons or anonymous usernames on a blog) is essential to being libeled.

Quite fortunately, you people don't know my real full name here ~ only my first name & my username ... nor my true identity. So, no matter how vicious your attacks have been to me personally, I'm not able to successfully sue you folks for libel, anymore than you can successfully sue me. Once again, I don't know who any of you are; nor, do any of you know me.

And lastly, I'll make it very clear (once again) that all of my comments here are purely my own OPINIONS, as I've stated numerous times before. Some of you have posted that you get tired of reading "in my opinion" or IMO, on nearly all of my posts ("dvcrsn" was the most recent progunner to say that, specifically). But that's the way I prefer it.

I think it's those of you here, who have stated that your posts are "factual" and who have directed them at an easily-identifiable person (who could that be, eh??) who should be very careful about what you write in the future.

Once again, IMO ~

KELLI

[Thirdpower]

Those involved in anti-rights activity love to cite the Joyce Foundation funded Hemenway as "proof" that guns cause crime. Yet, unsurprisingly, even he is unable to keep his facts straight from his own writings.

Here's an interesting bit from their response to an NRA critique of their book:

(2) The editorial staff writes: “Hemenway, Miller and Azrael (sic) believed that their study proved that Right-to-Carry laws caused people to behave dangerously and thus directly led to people shooting or threatening others with a gun.”
Response: We say nothing along those lines. No variable in our analysis has anything to do with Right-to-Carry Laws, or shooting people or threatening anyone with a gun.

Really? They say nothing along those lines?

"Nonetheless, in the past decade, many states
have required police to issue gun-carrying permits to anyone who is not expressly
prohibited by statute, even if police have reason to believe that individual may misuse
the firearm.

"While evidence regarding the effects of these more permissive gun-carrying policies is
not conclusive, the best scientific studies suggest that they may increase rather
than reduce crime overall"

So they call studies that support that hypothesis the "best" and cite them, but they're not really saying it. Sure. OK.

[dvcrsn]

I did some checking this morning, and there seems to be a pattern--every one of Paul's columns that have a high number of posts, Kelli or misanthrope2 (in antirights mode) have been active and the post with 100 or fewer posts, Kelli either doesn't post or only has a couple of comments. Although her posts comments on this column have been more extreme than some of her other work, I fail to see how any of her comments help the Brady campaign much, and especially in response to the current Brady campaign post-actually seem to be extremely harmful (especially with her Orwellian Big Sister attitude and "BUT THATS TREASON")

[Thirdpower]

Now that the noise has died down, we can get back to serious discussions.

The Brady Campaign supports "home rule" and have defended local ordinances such as in DC under that argument. Why then, are they now opposing it in Riverdale, Il? Because they want stricter laws there and Riverdale doesn't have them.

http://daysofourtrailers.blogspot.com/2007/11/cant-scare-them-out-legislate-them-out.html

[mike101]

"This is precisely why I get SO alarmed by their posts, especially ones that reference talking about how far they believe their gun-rights extend (eg., overthrowing oppressive/tyrannical governments, etc.)"

How do you expect to garner any support for your cause, when you do nothing but show complete and utter contempt for the very principles that this country was founded on? You totally ignore the intent of the founders of this country. If anyone is behaving treasonoulsly, well, it isn't us.

I believe that the readers, at this point, are seeing through the smoke screens you keep putting forth in ordewr to avoid answering questions, or having to substantiate anything you say. Even the anti-gun people have all gone home.

You are, apparently, alone in your thinking.

[shedances]

I've seriously got to run & catch up on work today, progunners. I spent WAY too much time involved with you all yesterday, and it's not healthy communication. However, in a short note in answer to the abusive-type posts directed at me this morning:

No, we are not presently living in Stalinist Russia or in Hitler's Germany ... or even under Sadam Hussein's rule. We are in the U.S. in the year 2007 (LOL); and we are Americans living in a Demoracy, with some limits imposed for the sake of all (eg., laws) ~ & with (civil??) responsibilities not to cause violence or harm to others just because we oppose their views (& yes, that does include any governments or leaders we deem to be "tyrannical," as they are members of this society also).

With respect to your rights as an average American: You have as much power, as any other citizen here does. And, the most significant of those involving change to the system, is called the right/power to VOTE. Women have it, because we put steady pressure on our politicians (not threats or veiled threats); we held lectures & peaceful demostrations (not with guns or arms); and ... we published tons of information regarding our cause. Women suffragists, for example, did not call or even suggest that it was a possibility to do so, taking up arms for the sake of our rights. They did things the RIGHT WAY because they had integrity, IMO.

And frankly, the vote carries FAR more force & power than any of your guns ever will.

Brady Campaign & Paul, thank you very much for allowing me to participate these past few days ... but I do need a well-earned rest from the extremists & their abusiveness here. They just won't stop. Or don't know any better.

Will catch up with you and other dedicated Gun Control advocates very soon! Take care.

Kelli

[shedances]

"As a practical matter, any kind of armed resistance to the government would be quite quickly suicidal unless the government abuses became blatant enough for a significant portion of the population to find them intolerable ... Even the Bush administration has a way to go before it reaches that point, and I'm fairly confident that it never will..." writes progunner, 45superman.


I agree with only the 'suicidal' part of what you wrote, 45superman; but not the rest of your views ... but at least, you're being honest about your views (compared to the majority of your gunrights peers here).

KELLI

[mike101]

I wish we could take a poll to find out how many anti-gunners would let a tyranical, illegal government take over this country, without lifting a finger to oppose it.

We already have one. Anyone else?

[shedances]

These pro-gun posters sound extreme, IMO.

Not moderate. Not well-balanced in thinking & attitude. Not willing to take others safety into consideration when talking about dangerous guns. Moreover, they do not represent the entirety of the gun-owners' attitudes on gun control in this country, I believe.

This is precisely why I get SO alarmed by their posts, especially ones that reference talking about how far they believe their gun-rights extend (eg., overthrowing oppressive/tyrannical governments, etc.).

Now, I'm not convinced that they're honest about anything they say here. But what I am convinced of ~ is that many of them are continually abusive to those of us committed to gun control & they're truly extremists when it come to guns.

I am NOT part of this group that comes here to bash, brag & manipulate readers! I come here to read & post; because I have every right to.

I don't come as either a paid member or volunteer of the Brady Campaign to Prevent Gun Violence ~ or any other specific gun-control organization. That is called "reality" folks.

And frankly, I'm getting pretty sick & tired of comments that take my words & insanely twist them around, in order to lie about me or make false assertions about anyone else supporting Gun Control in this country.

Look long & hard in the mirror, gunrights posters. You do not sound moderate in your views. This may be wishful thinking on my part: But I believe most of you have to stop your lies & manipulating ~ esp. when you get caught saying stupid things that any normal person would never go along with ~ if you want anyone else to take your messages & opinions as you intended. However, if you don't really care, no problem ~ you then have no worries about how others see your comments.

You can post whatever you want...

KELLI

[molonlabe]

After reading Kelli's posts, one thing is obvious; she equates debate to harrassment.
Maybe it is this fundamental belief that has precluded her from offering substantiated arguments for the anti-rights side?

Kelli, the bottom line is that if Paul Helmke and the other anti-rights activists had a strong position FOR gun control, they would welcome, with open arms (by arms I mean actual appendages, not weapons) any and all pro-rights people to their forums. What better way is there to challenge our arguments and prove us wrong and idiotic by letting us post our positions and then ripping them apart with substantiated arguments, facts, and statistics?
But in reality, the opposite holds true. Because gun control is such a weak argument and has been proven a failure by decades of legislation and laws which have had NO effect on violent crime (and in some instances, has actually exacerbated it), people like you feel threatened by people like us. Because you can't refute agruments which prove gun control to be nothing more than feel-good legislation, you have to resort to the "I'm taking my toys and going home" approach.

Blogging and other internet media is hot right now. Look at Ron Paul who raises millions of campaign dollars in a mere day just from on-line supporters. If the anti-rights platform had a solid position, they would be seizing the opportunity to advance their position by taking control of the blogs and other internet forum. But look at what Paul Helmke had to do...he had to distance himself from this media by shutting down the Brady Campaign Blog.

Proof is in the puddin', Kelli. And the puddin' I'm eating right now is rife with the taste of Hoppe's #9.