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

[DMeadows]

I, and most of the other pro-rights folks here, show profound patience with the pattern from a certain commenter who frequently uses terms like "gun nuts", "gun extremists", etc. and patience with other purely ad hominem attacks from this commenter. However, I have noted that several of you have taken serious issue with this commenter implying or directly stating that you are advocating for illegal action against our current lawfully instituted and (for the most part) lawfully behaving government. Such direct allegations against specific individuals may be "libel", as some of you think, or perhaps violate other laws against false accusation or false reporting. Certainly, they seem to violate HuffPost policy.

HuffPost will block the IP address of commenters who go way over the line. Read the HuffPost FAQ at
http://www.huffingtonpost.com/p/faq-comments.html

I don't support cutting off anyone's speech, even if I totally disagree with them and they tend to call me names. I believe as much in the First Amendment as I do in the Second Amendment. But, I would suggest you use the "Flag as abusive" button below a comment if you feel it accuses you specifically of advocating illegal acts.

[mike101]

One more thing, Kelli. If you, or any other Brady supporter ever develop the courage to come to a pro-rights forum, and declare yourselves to be anti-gun (instead of lurking and spying on us), you will find that you are treated with a great deal more courtesy than you show us. And, our forums don't pre-moderate. When someone gets out of line, they are admonished first, by other members. Then, if it continues, a moderator gets involved.

I've only seen an anti-gunner admit who they were once. She was a young woman from Austrailia. The worst that happened was when a member suggested she would be better off on an anti-gun forum. He was polite, but still scolded by some of the rest us for having the same attitude as many anti-gun forums, only wishing to preach to the choir. Most of us applauded her for having some guts. Of course, we tried to convert her, using facts and statistics, which were backed up by links to the usual sources, FBI, ATF, DOJ, Austrailian DOJ, etc.

I doubt that we converted her, but she was a little surprised by how well she was treated. I will allso point out that she was not abusive, or disrespectful, as you tend to be, and she was treated with the same courtesy.

I'll clarify something for you, though I shouldn't need to. A tyranical government "is not going to tell you it is tyranical, now is it?"

Now, how about answering my question? After seeing the quotes from the founders (you did see them, right?), and the various state constitutions (you didn't ignore those, did you?), SCOTUS decisions, and the Constitution of the United States of America, what do you think a militia is for, according to the constitution?

[shedances]

Before I log off this evening, I have wondered for the past several weeks just how far many of you folks in the pro gun side will go ~ to get those gunrights you feel you must have?

I don't expect any answers to this question ~ that would be very unwise ... but I can tell you that I feel if any of you believe it's OK to harrass others, to be abusive, to manipulate, to lie, to threaten, to bribe, or even worse, to physically harm those who disagree with you ... then you shouldn't have guns to begin with & you really shouldn't be involved in any serious talks over 'rights.'

My honest two-cents, after the most bizarre day I've ever had on the H.P. blogsite, trying to determine those who mean what they say ... from those who don't.

KELLI

[Sneaky]

I thought I might include this for those who may be interested. Miss Kelli, please read all of it, and you will very clearly understand why you are received the way you are here and elsewhere.

----------­----------­----------­----------­-------

"Why The Gun Is Civilization"

By Maj. L. Caudill USMC (Ret.)

Human beings only have two ways to deal with one another: reason and force. If you want me to do something for you, you have a choice of either convincing me via argument, or force me to do your bidding under threat of force. Every human interaction falls into one of those two categories, without exception. Reason or force, that's it.

In a truly moral and civilized society, people exclusively interact through persuasion. Force has no place as a valid method of social interaction, and the only thing that removes force from the menu is the personal firearm, as paradoxical as it may sound to some.

When I carry a gun, you cannot deal with me by force. You have to use reason and try to persuade me, because I have a way to negate your threat or employment of force. The gun is the only personal weapon that puts a 100-pound woman on equal footing with a 220-pound mugger, a 75-year old retiree on equal footing with a 19-year old gang banger, and a single gay guy on equal footing with a carload of drunk guys with baseball bats. The gun removes the disparity in physical strength, size, or numbers between a potential attacker and a defender.

(Cont.)

[dvcrsn]

Kelli, in going through some old music videos on You Tube, I found a song (I think from 1974) from the prog rock group Kansas called "let me tell you" that said something that made a lot of sense--namely how willing you are to defend freedom (including the rights of others), shows how highly you value freedom. If you truly believe that the RKBA is not constitutionally protected, that is a case of deliberate ignorance or deliberate blindness. I may be wrong, but all your claims of treason etc, strikes me as a deliberate attempt to hide the fact that your side has nothing.

[Thirdpower]

In another case of anti-rights activists selectively editing SCOTUS cases to push their political agends, Bryan Miller, the head of CFNJ quoted US v Miller thusly:

"In the absence of any evidence tending to show that possession or use (of a firearm)..­.has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument­."

Notice the part in parenthesis. Here's what it really says:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less that eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Why would he make such a glaring edit?

[Thirdpower]

This statement was made by Kelli:

This isn't Nazi Germany. Right now, right here ~ are a loud band of Gun Extremists who are misusing the Constitution and using their past or present affiliations with the U.S. Armed Forces (eg. Thirdpower, Zen21tao..­.) to threaten ~ either playfully or not ~ to overthrow with arms an elected government.

Unless she's admitting to libel, she needs to clearly show where I or Zen were threatening in any way to overthrow the elected government.

[shedances]

Explain yourselves, please, boys. What government are you all referencing in your posts here? The current one. A non-existent one? A past one?

Gun violence, gun crimes, even comments about it being okay to take up arms against a government one considers oppressive ~ esp. in these troubled times ~ are NOT funny (here or anywhere else on the Web).

KELLI

[shedances]

Finally -- in a further, more detailed post regarding what alarms me besides just the 'taking over oppressive government with arms' attitudes here ... are a few similarities I see between the gun extremists posting here & members of a well-known, past group.

They include:

1. Members spoke constantly of guns & war.

2. Bragging about their firearms (especially one member, who made a video about his new guns).

3. They also did not like to be told what to do.

KELLI

[Thirdpower]

I'm still wondering why we should accept the BC LAP as a legitimate source when it's director, Dennis Henigan, an alleged constitutional lawyer, can't even quote the 2nd Amendment without showing his bias:

http://youtube.com/watch?v=L5QvYliZCq8

Obviously the BC recognizes this as they have scrubbed the relevant video and transcript from their site.

[shedances]

In response to my question about what gives you the right to deem a government tyrannical or oppressive for the purposes of toppling via arms, you folks wrote the following:

"Who am I? I'm a citizen of the US .. who are you to call that treasonous," Thirdpower, Dec. 4, 2007.

"We are the people. And if it is not our place [to take up arms against a 'tyrannical' government], then who the heck's is it," TBJWebmaster, Dec. 4, 2007.

Dmeadows' rather lengthy post chastises gun control advocates for taking away what she supports as a "natural right to fight oppression or tyranny, with arms if necessary.­.."

****************

*And, for those of you in military service (dvcrsn, zen, thirdpower ~ all of you have indicated ties with the armed forces ...), this is from the National Guard ~ online ~ today:

"Members of the Armed Forces are prohibited from active participation in Extremist groups."



KELLI

[shedances]

"And who are you, exactly, to tell others what constitutes an oppressive & "tyrannical" government in the present-day? ... The PEOPLE, that's who! The government certainly isn't going to tell you it's tyrannical, now is it?," writes mike101.

Care to explain, mike, what you meant here when you wrote "the government" instead of past, or hypothetical, government?

KELLI

[kaveman]

Kelli, you need to see this. I'm sure most others here are already familar with the fact that the Dept of Homeland Security has formed a "Clergy Response Team" to act as a public relations face once martial law is declared.

http://youtube.com/watch?v=DK2g0TGaAZA&feature=related

[kaveman]

Seems that I recall Kelli saying something about "noone is above the law."

Well Kelli, you have broken the law.

In law, defamation is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism.

The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel (harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action.

"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel.

Quoted from...

http://en.wikipedia.org/wiki/Defamation

Please turn yourself in Kelli, we will wait for your return.

[kaveman]

Paul writes...

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."

Don't believe me or Paul Helmke. Read the court's decision and decide for yourself if Miller was ignored. Here's the document, word for word.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf