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]

It might be necessary ~ and appropriate given the tone of several comments here ~ to revisit what Paul Helmke at the Brady Campaign noted earlier, about there being no constitutional right to commit treason. I completely agree with this; and the powers given to Congress with respect to 'suppressing insurrections' seems to clearly support what he wrote ...

Congress has the power to call forth the militia "to execute the laws of the Union, suppress insurrections and repel invasions; to provide for oganizing, 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. Constitution, Article 1, Sec. 8).

[shedances]

Now, this is an interesting development ...

In discussing the different state militias, are you progun types trying to tell HP Readers that you acknowledge the way the 2nd Amendment is a right held by the States and does not protect the possession of a weapon by a private citizen?

Or, are you people just curious about the National Guard?

KELLI

[shedances]

"But the leftwingnuts don't care about that little fact. Kelli still thinks that the Ku Klux Klan is a militia and not a bunch of racist and criminal thugs," writes gun-fanatic "dvc," from Oregon.


Hmm.

That's an interesting misrepresentation of my post. It really is next to impossible for some of the progun extremists here to stop lying long enough to listen ~ yet, I'd hate to see them continue misquoting me from dawn 'til dusk (though I am used to it by now ... LOL).

Anyway, for those who are honestly interested in reading what I had said earlier ... the following is for you. In the excellent (1982) Texas case of "Vietnamese Fishermen v. Knights of the Klu Klux Klan (KKK)," the district court ruled the "Second Amendment does not imply any general constitutional right for individuals to bear arms or form private armies." It cited Presser v. Illinois in support of its decision.

The KKK could not simply band together & proclaim themselves to be "militia" members for the purposes of being armed.

It was a pro-gunner here ~ "Sneaky" ~ who more than once indicated he had that same self-proclaimed militia member right & I disagreed, citing this case. "Sneaky" was just as wrong as the KKK, in thinking he can gain arms rights in such a way.

Enough said this evening.

KELLI

[kaveman]

It really does amaze me how many people either fail to recognize or understand what is meant by the phrase "self-defense is a natural right."

We are not talking about the Constitution or American birth rights, but a fundamental law of nature.

Plants, animals and fungi have a right to preserve themselves from harm. Cheetas run fast, to hard to catch. A porccupines quills will make short work of most predators and a skunk enjoys safe travels simply because it smells bad. Trees produce sap and some even "eat" insects. Single cell amoebas have cell walls with lipid bi-layers, lets in the good stuff and keeps out the riff-raff.

I, on the other hand have finger nails instead of claws, bicuspids instead of fangs, thin skin instead of scales. I can't run fast, swim fast or fly away to the safety of the tree tops.

Why do we survive against a myriad of animals who could physically compete our species out of existence?

Because we gots big ol' brains. I will use that noggin of mine to determine what is best in terms of my self-defense.

[DMeadows]

My State is Michigan (pronounced mishuh-gun).

CLEARLY, the plain-sense definition of "militia" being a broad term encompassing organized and unorganized individuals keeping and bearing arms per their individual right to do so is reflected in my state's constitution and laws.

State Constitution, Article III, Sec. 4:

"The militia shall be organized, equipped and disciplined as provided by law."


Michigan Compiled Law, Act 150:
Sec. 109:
"The ORGANIZED militia of this state taken collectively shall be known as the state military establishment and constitutes the armed forces of this state. The organized militia consists of the army national guard, the air national guard, and the defense force when actually in existence as provided in this act. The
UNORGANIZED militia consists of
ALL OTHER ABLE-BODIED CITIZENS of this state and all other able-bodied citizens who are residents of this state who have or shall have declared their intention to become citizens of the United States, who shall be age 17 or over and not more than age 60, and shall be subject to state military duty as provided in this act."

Sec. 155:
"The governor may order into the defense force any members of the unorganized militia in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority . . ."

Sec. 255
"In case of war, or a national emergency, when the national guard may be in the military service of the United States, the defense force shall be ready and able to protect the state in case of insurrection, invasion, disaster or other emergency, actual or imminent. In such case the governor, as commander-in-chief, may use the defense force augmented if necessary by all or a part of the unorganized militia . . ."

[TBJWebmaster]

Why do people keep misquoting Miller? (OK, I know, because they wish it were other than what it really is).

Miller, because the plaitiff died before the process was complete, was an incomplete case and didn't go very far in its ruling. The furthest it got was to decide that a sawn-off shotgun, having no military (militia) relevance, was not a firearm whose ownership was protected by the 2nd. In other words, the 2nd protected anything that did have military utility including, presumably, machine guns and assault rifles. Hunting rifles, though, might also be ruled out, wuite the opposite of what many liberals would have you believe.

Of course, these days the military value of short shotguns is well established, so they might well have ruled otherwise today. And even the most avid banner would be hesitant to say that you can have any military firearm, but not a hunting rifle.

[kaveman]

"A free people ought not only to be armed and disciplined but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government­."
--George Washington

"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed."
--Thomas Jefferson.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
--Thomas Jefferson

The beauty of the Second Amendment is that it will not be needed until they try to take it.
--Thomas Jefferson.

[kaveman]

"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.
-- James Madison, The Federalist Papers

"Firearms stand next in importance to the Constitution itself! They are the American people's Liberty Teeth and keystone under Independence. From the hour the Pilgrims landed, to the present day, events, occurances, and tendencies prove that to insure peace, security, and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere, restrains evil interference -- they deserve a place of honor with all that's good!"
--President George Washington, in a speech to Congress. 7 January, 1790

[kaveman]

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in Government­."

Thomas Jefferson

[kaveman]

Never forget the hypocrisy the Brady Bunch puts on their own website...

Q. Is Brady a "gun ban" organization? Are you really just trying to make all guns illegal in America?

Brady believes that a safer America can be achieved without banning guns. Our stand is simple. We believe that law-abiding citizens should be able to buy and keep firearms. And we believe there are sensible gun laws that we can and should insist upon when it comes to gun ownership.

First and foremost, we should try to keep guns out of the hands of those who should not have them, including criminals and children.

Second, there are certain classes of weapons that should be out of bounds for private ownership. They include Saturday-night specials, which are used almost exclusively for crime, military-style assault weapons like Uzis and AK-47s, and .50-caliber sniper rifles, which serve no ordinary sporting purpose.

Third, we believe that those who do own guns ought to be held to the highest standards of safety. They should be well trained in the use of their weapons and they should be required to keep weapons secure, so that neither innocent children nor prohibited persons can get a hold of them.

[Thirdpower]

Illinois Militia Membership:

SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons residing in the State except
those exempted by law.
The “militia” described here includes both the state’s organized militia who have
received military training, and its unorganized militia—composed of all other able-bodied
persons who are not exempt. The corresponding provision in the 1870 Constitution was narrower,including in the unorganized militia only able-bodied men aged 18 to 45.

[kaveman]

I encourage everyone to look up their individual State Constitutions and share them here.

My State is Oregon(pronounced ory-gun)

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

Oregon Constitution on the right to keep and bear arms

Article I, Bill of Rights

Section 27. Right to bear arms; military subordinate to civil power.

The people shall have the right to bear arms for the defence (sic) of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]

Source: http://www.leg.state.or.us/orcons/orconst.html

[DeccaDo]

I think this argument starts with a misconception of the constitution. The framers did not want a democracy(mob rule) they intended to establish a republic (individual rule). As a democracy- you do not have any rights that others cannot take from you, thus if the majority vote against gun ownership -it becomes law.
Thus said; while the folks on this blog worry about their neighbors owning a gun, I worry about Blackwater- a government run private militia.

[shedances]

I have to say ... it's rather interesting, isn't it, to read how the gun nuts here typically label all of their speculations, opinions, assertions, & selective readings/q­uotes/auth­ors always as credible and factual ... while they deem everyone else's posts as "ad hominen" or too touchy-feely.

LOL ~

Kelli

[shedances]

Brady Campaign ~ Sorry for all the mudslinging from the gun-nuts here (though I know you folks are no stranger to such nastiness)! But do hang in there! You're in the right.

Wish I had more time to post...

Looking forward to Paul's next blog,

Kelli