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.)
Loading comments…
Want to reply to a comment? Hint: Click "Reply" at the bottom of the comment; after being approved your comment will appear directly underneath the comment you replied to
That's cool. I agree the Second Amendment is about the militia. It also conveniently protects my ability to keep and bear arms to fulfill that "militia purpose", whereas the Ninth Amendment also conveniently protects my inherent rights that aren't enumerated in the Bill of Rights (namely, my right to self-defense).
The Second Amendment and the Ninth Amendment protect my right to defend myself effectively (this is only untrue if we do not possess an inherent right to self defense).
Mr. Helmke, before linking critiques you've made, I highly recommend having an impartial third-party proofread and edit them. You appear to have made a few errors. First off, the Constitution doesn't grant rights to anyone; it places limits on the federal government. Second, if extended to the rest of the Bill of Rights, your "collective rights" interpretation means that none of the Amendments in the Bill of Rights protects individuals and only protects groups. Little things like that can drastically undermine attempts for credibility.
Since it's about time for Kelli's "Top of the Post " game, Here's a nice little article for those that claim that those who support firearms are all "Ebil Conservative Repubs":
http://www
A group of nearly two dozen Democrats in the Pennsylvania House has served notice on leadership that they will not put up votes on certain ‘social’ issues, including gun control.
The letter to state House Democratic leaders -- signed by 22 Democratic members, many from western Pennsylvania -- underscores the challenge faced by advocates of gun control legislation. The missive is on the letterhead of Representative Nick Kotik of Allegheny County:
“Emergency contraception, gun control -- there’s a lot of different social issues that are supposedly going to be considered, and I just don’t think at this point in time, these are not priorities with me and they’re not priorities with a lot of my colleagues
Paul admits to being partisan and only looking at half the amendment.
"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."
That is from the above post. This is from their 2003 Amicus Brief in support of DC:
, "By this action, Plaintiffs seek to contest long-settle precedent that construes the Second Amendment of the U.S. Constitution as protecting only the ability of the States to maintain a "well-regulated Militia." (p. 2), "The vast majority of courts have interpeted Miller as a rejection of any individual right to bear arms under the U.S. Constitution," (p. 7) and "The Framers of the Constitution did not intend to create an individual right to bear arms." (p. 12)/ They cited pure collective rights cases (pp. 8-10).
So now Paul's backpedaling like mad. If/when the SCOTUS recognizes an individual right, will he then claim victory like Bryan Miller did after the resounding defeats for his cause in PA?
Thanks to Dave Hardy of Armsandthe
"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."
Paul, Paul, Paul...and you think WE'RE the ones throwing red herrings? To say that the "Militia" you speak of is in fact comprised of "the people" would be rather redundant (I see that the "extremists" were rather busy this weekend proving you a liar again). The fact that you view the 2A as two seperate clauses all together says alot about your agenda. A free state's security is not only directly proportionate to how secure it is against a tyranical government, but also how secure it is from civil uprisings and crimes against the state's own inhabitants. In order to achieve that security, the "Militia" (watch closely now) or "the people", not a standing army, must be able to protect it. And the 2A language guarantees us exactly that.
Scary how almost 250 years later, our Founding Father's foreesight proves "Nostradam
"Just because you say it, doesn't make it so..."
This goes right back at ya, "dmeadows"!
And it's funny, how, in this single sentence ~ progunner "dmeadows" who may fancy him or herself, as some kind of expert on the "militia" ~ summed up EXACTLY what I think of the last several posts from her/his gun-fanatic friends.
Excellent,
KELLI
I've seen alot of well written, factual and researched posts on this column. Then there are those by Kelli and shedances. At least their posts show the mentality of the anti gunners.
Hint: If you don't agree with someone then put out a fact or a link that refutes the opposing argument. You aren't going to change anyone's minds but you might reach someone that's undecided. Frankly Kelli and shedances use of childish personal attacks with no decently written arguments should be an embarrassment to them. I'm on the opposite of this issue but I'm actually embarrassed for what passes for intellect among the anti gunners on this column. It does however give me hope that the 2nd Amendment will remain an individual right if these two anti gun activists are the best supporters the Brady Foundation has here.
Shedances (Kelli) is quoted from below, and my responses:
"The Second Amendment does not confer an 'individual right' . . ."
Just because you say it, doesn't make it so. You've got to put your reasoning out here for that statement, just as I have for mine and some others do for theirs. I'm not saying you're wrong, but for God's sake why don't you consider that undecided readers are seeing you're comments and wondering what your rationale is behind your opinions?
"nor does it serve as some kind of constitutional barrier to gun control/gun laws"
Actually, I have no disagreement with you there and have never said the RKBA isn't subject to reasonable regulation, just as all the other individual rights affirmed by the BOR are subject to. So, stop making straw-men out of my pro-rights arguments and the pro-rights arguments of others.
"it gives States the right to maintain 'well-regulated' militias"
That notion fails the simple test of reading the amendment. The only right specified is "the right of the people to keep and bear arms". Even Helmke and the BC aren't attempting to argue what you assert. As far as they go is to use Miller "creatively" to say that the Second Amendment sets out the right of the people to keep and bear arms only if it relates to service in each State's militia.
Further, that notion fails the context test. The BOR is about individual liberties, and enumerating several which the founders felt needed mention and explicit protection from government infringement on individual liberties. If you can adequately explain why an amendment protecting a lower level of government's (states) "rights" from a higher level of government's (federal) infringement is inserted second among nine others that EVERYONE agrees are about individual liberties, then I guess you've won the day. Please do try.
So we should trust the BC?
A direct quote from their NRAleaders
"Put military-style rapid-fire assault weapons that have been banned for the last ten years back on the street."
The truth about the AWB:
http://www
The BC critisizes Wayne Lapierre for his statement:
What fakes, frauds and liars! ... [A] shadowy network of extremist social guerillas fueled by anonymous wealth, sophisticated research, free media access and high-dollar consultant
--2002 NRA Annual Meeting Speech
Who funds the majority of anti-gun sites:
http://www
So paul let me see your reading states that people have not right to self protection. Wow then the brady Bingo group should make it well known that no one should in anyway attempt to stop a robbery or rape and that to do so should be illegal since you do not have the right to protect yourself. At least according to The Great Paul Helmke reading of the second amendment. Since the parker decision is wrong according to you that is all that can taken away from your synopsis.
Kelli--since you "support" the wisdom of finding a middle ground, how does this strike you.
1. All Clinton style "assault weapons" laws gone (including magazine capacity limits)
2. the 1934 and 1968 gun control laws gone
3. Nationwide concealed carry weapon law--no permits required.
4. All the suits aimed at gun manufacturers stopped.
5. Laws prohibiting felons, people with certain mental illnesses stay on the books with improvements in the background checks.
Paul,
You need to take your own advice - read the whole Amendment. No, you don't pick only the parts you like (like some people do the Second Amendment - and you did with the Miller case). Instead, you do something even more ridiculous; you invent something that isn't even there - a right of the States. The Second Amendment says nothing about a state right, it says "...the right of the People..."
[End Part 1]
And the MO is followed to a tee.
Shown that the VPC admits to using flat out misdirection, the post is ignored.
Shown that the legal director of the BC misquotes the Bill of Rights, the post is ignored.
Shown that Miller was considered part of the militia, the post is ignored.
Shown that here, as on the BC blog and in real life (ie the recent Philadelphia votes, responses to Laura Washington, membership in organization, etc) we outnumber the anti's 20:1 or more, comments have to be made about "whole groups", and "ganging up".
And that's why we're winning.
Paul ~ isn't it funny, how it takes a WHOLE GROUP of gun fanatics to come over here & try to argue their points now? I think they're pretty intimidated by the BC; & you should be proud of your efforts (despite the nasty hate-posts directed at you &/or the Brady Campaign).
A Militia is the People. The Founders were wise enough to know that at some future time it would be necessary, given their vast experience with the dangers of Kings, for the People to refresh their country by taking up arms to protect it.
Most likely, in opposition to whatever standing army was extant at the time.
A People's Militia, not a governmental entity! Hand guns, assault rifles, rocket launchers etc, were not in wide use :), and so were not given special consideration in that particular right.
By the same token, had the totally foreign notion of a permanent, professional politician (rather than the idea of the statesman/farmer doing his public service and then retiring from it) been foreseen, term limits would have been instituted; Or the equally offensive notion of a two party system that effectively muzzles the voice of the people and opposition to those professionals, which would have been dealt with in some other fashion.
As it is, we are left with gun rights for the people, slice and dice that as you may. I am as progressive as the next person here, but, standing on the precipice of Fascism, I thank whatever power for the insight those men had in preserving our right to self defense.
They gave us the Law and the means by which to protect ourselves and our Country, but there were some things which even they could not predict, and that includes our social de-evolution, more's the pity!
I cannot help but note with interest that growing numbers of even avowed enemies of private ownership of firearms (enemies of freedom, in other words) are finding the effort of arguing that the Second Amendment does not confer a Constitutional guarantee of the fundamental human right of the individual to keep and bear arms too exhausting to be sustained. Benjamin Wittes, for example has been forced to acknowledge this reality, spurring him to argue that we should "repeal the damn thing."
If I were a citizen disarmament advocate, I would be concentrating my efforts on that. Good luck.
You must be logged in to comment. Log in or connect with
