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

[shedances]

What you gun-boys are writing & bragging about here isn't funny. It's alarming. I would suggest that you all think more before you spout off on your supposed gun-rights.

[kaveman]

Paul writes...

"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."

Yes the 2A has a militia purpose, but where does it say that it is the SOLE purpose?

Do you really think the Founding Fathers would have to spell out that people had a right to hunt in the colonial era? Remind us all how many mega-chain grocery stores there were on this continent when we showed up.

Man, Paul, you just don't get it.

[kaveman]

Paul Helmke writes...

"What right does the Second Amendment grant to the people?"

How many times do we have to rehash this Paul.
The 2A does not grant any rights. Neither does the 1st or 4th nor any of the ammendments in the Bill of Rights. The BOR does not create or grant squat. The BOR identifies pre-existing rights which predate the Constitution.

Good try Paul, try again.

[kaveman]

Whether or not this list comes from a leaked BC memo, it serves a purpose.

Kelli, which of the following would you establish under law, if you had dictitorical power to do so? I've numbered them for your convieniece...

#1 Ban of all clips holding over 6 bullets.
#2 Ban on all semiautos which can fire more than 6 bullets without reloading.
#3 Ban of possession of parts to convert arms into military configuration.
#4 Ban on all pump shotguns capable of being converted to more than 5 shots without reloading.
#5 Banning of all machine guns, destructive devices, short shotguns/rifles and assault weapons.
#6 Banning of Saturday Night Specials.
#7 Banning of Non-Sporting Ammunition
#8 Arsenal licensing (for possession of multiple guns and large amounts of ammunition)
#9 Elimination of the Department of Civil Marksmanship.
#10 Ban on possession of a firearm within a home located within 1000 feet of a schoolyard.
#11 Ban on all realistic replicas/toy guns or non-firearms capable of being rendered realistic.
#12 The right of the victim of gun violence to sue manufacturers and dealers to be affirmed and perhaps, aided with money from government programs.
#13 Taxes on ammo, Dealers licenses & guns to offset the medical costs to society.
#14 The eventual ban on all semiautomatics (regardless of when made or caliber).

If you are unable or unwilling to take a position and defend that position, then I don't want you in my fox hole.

[dvcrsn]

Today's posts from our favorite anti RKBA person shows that the words from "Let Me Tell You" by Kansas are still valid 30 years later. BTW--the song is on YOUTUBE

Here is a paraphrase--If you value freedom, show you deserve it, help us preserve it, otherwise it is all just words

[Thirdpower]

To counter the complete and total misrepresentation that has been presented, here is the question that was presented as to the matter of "treason" and "overthrowing and elected gov't" for those who choose not to read past the first few posts:

"Were Bush to declare himself president for life and the 2008 elections null and void, would it be treason for the populace to rise up to re-establish the elected Gov't?"

Can we spot the dishonesty in those that are forced to mis-characterize the opposing view to push their own extreme agenda?

[shedances]

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. And shame on the rest of you people, for encouraging misuse of the important Brady Campaign blogs.

KELLI

[jlbraun]

"There is no question that the Second Amendment guarantees a right to "the people" -- that much is clear from the text."

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

(gasp)

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

(thump)

[Thirdpower]

Another quote from a treasonous gun nut:

I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions, indeed, generally establish the encroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions as not to discourage them too much. It is a medicine necessary for the sound health of government.

-Thomas Jefferson

[kaveman]

I just stumbled across this. Suppossedly an interal BC memo that got leaked. Can anyone comment on it's validity?

http://www.bradybusters.com/dnn/Portals/0/data/pages/brady%205%20yr%20plan%20from%201993.htm

[Thirdpower]

In light of the recent comments in regards to "treason", I think quoting Pastor Martin Niemöller is appropriate:

First they came for the Socialists, and I did not speak out -
because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out -
because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out -
because I was not a Jew.

Then they came for me - and there was no one left to speak for me.

[shedances]

Paul,

I have to admit that I'm shocked to repeatedly find comments/posts from the pro-gun side stating that the Constitution affords them some sort of legitimacy to take up arms against our government, if it were ever to become "tyrannical" ~ thus, they must remain armed for this purpose, among others. They have no constitutional right to advocate treason against this or any other government they find oppressive.

Kelli

[dvcrsn]

Kelli--the phrase "right of the people" occurs in 5 places in the bill of rights, which is a list of rights aknowledged and protected (but not granted by the Constitution--because the men who wrote the document felt these rights already existed). Please give the rest of us a clear, logical explanation the phrase "right of the people" should not be read the same way each time. BTW, kelli, you must do this without referring to something that Paul Helmke said, pulling something from the HCI site or that the militia clause turns "the right of the people to keep and bear arms shall not be infringed" into a state power. If the writers of the Constitution had not wanted to protect the right to keep and bear arms, they would not have place the RKBA in a list of individual rights using the phrase the right of the people,they would have placed the 2nd amendment in with the powers of the state

[Thirdpower]

Another Miller quote:

"This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.' 'The possession of arms also implied the possession of ammunition."

Boy, sure sounds like an affirmation of an individual right. Perhaps it was the Appeals judges who were "activist" in their zeal to limit rights.

[Thirdpower]

US v Miller on arms and the militia:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.