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Interpreting the 2nd Amendment – Patriot Privacy

Interpreting the 2nd Amendment

In last week’s advisory, I responded to a number of emails from members of the Patriot Privacy and Security Society who had written to comment on my “Carrying a Concealed Handgun” advisory.

This week, I received many more emails about guns and the Second Amendment. All the emails raised important issues we will discuss over time, but I planned on waiting at least a few weeks before digging into the Second Amendment again.

But I can’t wait.

There is one email that I feel I must share and discuss separately from all the rest and I didn’t want to wait until a later date.

The reason I want to address this one email right away is because it expresses much of what we often read and hear from individuals who believe the Second Amendment is being misinterpreted by many defenders of the Second Amendment.

So I am going to reprint the email in its entirety (without identifying the author other than by initials), exactly as I received it so the author’s original emphasis is included. Following the email, I will respond in a way that I suggest all folks who believe the Second Amendment grants a modern right to keep and bear arms should respond when confronted with similar arguments.

Here’s the email I received:

Rob,

I read with interest the comments about guns you emailed.  I do not own a gun, but I respect the 2nd amendment as it is written in just ONE complete sentence of only 27 words.  I am not a lawyer, but as one who understands English, and possesses common sense, I would insist that the first 13 of those words on such a basic subject must be included.  I continue to marvel at the interpretation of thislittle Amendment by the NRA, whose only interest in guns, let’s face it, is in selling as many as possible.

We always hear only HALF of the second Amendment quoted “…the right of the people to keep and bear Arms, shall not be infringed.” Written English requires it rational to consider the context in which the “right to bear arms” has life.  How can we ignore the first part of the Amendment, when it actually creates the conditions in which the “right to bear Arms” is allowed to exist?

A STRICT reading of the Amendment would certainly require some connection with “A well regulated Militia” as it relates to the “security of a free State” and an understanding of the word “arms” to the people to whom the Amendment related. Do you detect anything about personal use, or self-protection as some sort of Constitutional Right? As a matter of historical fact, “arms” (basically muskets) were a necessary part of society for food and as a “Militia” which the government could not afford. There was a time when adult males were required to be ready with their “arms” to fulfill the duties of a non-existent army against the countries foes. Get it?

The bottom line for anyone who really wants to interpret the 2nd Amendment, is that any conditions other than some connection to “a well regulated Militia, beingnecessary to a free State” (Italics mine) would seem to restrict, if not to eliminate, the “right to bear arms.”

Fortunately for those “law-abiding” citizens who enjoy using guns recreationally, the USA has allowed them exemption from any well-regulated Militia or security of a free State requirements clearly quoted in the 2nd Amendment.

I hear the screams of all those who think they should augment law-enforcement or think they are really important in “protecting” themselves and the rest of us from the crazies or criminals amongst us. Some even think they are some force (against?) the Government or the Army in protecting our civil liberties or someone they decide is a dictator or sufficiently a threat to our Democracy; even the obvious silliness of protection against foreign powers. How naive can that be?

One of the comments you published mentioned the “replete” situations in which a presence of a private “lawful gun” prevented further harm. I’d like to hear of a few of them in my lifetime (86 yrs). And measure them against the MANY DAILY gun deaths in the USA, compared to the RARITY in all other (not third world) countries which either prohibit or at least control private ownership of guns.

The only way we are to be eternally vigilant against an instant, unexpected event, like the darkened theatre shooting recently, or the sudden appearance in your bedroom of an armed criminal, is to allow EVERYONE to almost literally have his finger on the trigger of a gun at all times. Precisely what the NRA would like. And not any restriction on what type of gun – a 22 or an AK 47, or how about a bazooka or propelled grenade.

Aren’t they “arms”? The writers of the 2nd Amendment were talking about muskets!  Are they equal? I believe that an overwhelming majority of gun owners in our country would draw the line before we got into heavy-duty military weaponry. I invite you to picture the horror of each “law-abiding” citizen carrying his AK 47 or maybe only a little .22 into that darkened theatre when the insane shooting began. The dead would have been in the hundreds with everyone blazing away at what they “thought” was the original shooter. Is that the ideal way for society to protect itself?

So what’s the rational compromise? Let “law-abiding citizens” have recreational guns, after adequate checks to also look into their “legal” past or any medical or mental histories suspect of any predilections toward violence. While it is only realistic to know that there will be law-breakers who enable other law-breakers to get guns, IT SHOULD BE MADE AS HARD AS POSSIBLE, to do so. And the background checks more strict, punishing the dealers and gun shows which ignore them. Many of the recent shootings could have been prevented by these restrictions. The guns for private use (still useful for “self protection”) must be limited as to magazine size and caliber, lest we become victims of the circumstances of mass hysteria or macho personalities deciding whom they can shoot. These decisions should be left to law enforcement bodies.  If you think that’s too weak a response to lawlessness, you must again look to the countries that follow it to compare the incredible difference in gun-caused deaths.

Why cannot we exercise good common sense and stop screaming about our “2nd Amendment rights”. Be careful, or the true meaning of the 2nd Amendment may be actually put into effect. Those “absolutists” of it MUST abide by the ABSOLUTE, and complete sentence.

By the way, as an example of the meanings or present use of Constitutional Amendments– has anyone discussed the quartering of Army personnel in your home lately?  Check the 3rd Amendment — that’s about the same length as the 2nd and bears no relation to our times, but meant something to the writers of it.

Signed,

LS

Ok, that’s the letter in its entirety. We’ve all read and heard similar arguments. In fact, there are probably other members of the society who agree with the author – at least part of what he/she wrote.

Now, I promised a response.

My response is the same response I use with friends and associates who express the same beliefs that LS wrote in his email: Read District of Columbia v. Heller.

Yes, it really is that simple.

Read District of Columbia v. Heller, the Supreme Court’s 2008 decision that addresses most of what LS and others raise as arguments against Americans’ right to bear arms in a modern society.

Read it and read it with an open mind. Because if you do, you’ll find that the Court (with some additional explanation, these points are taken directly from the opinion’s syllabus) ruled:

*The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense.

*The Amendment’s prefatory clause (A well regulated Militia, being necessary to the security of a free State,) announces a purpose, but does not limit or expand the scope of the second part (the right of the people to keep and bear Arms, shall not be infringed.), the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

*The “militia” comprised all males physically capable of acting in concert for the common defense. The antifederalists feared that the federal government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

*The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

*The Second Amendment does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

Now, it should be noted that the Heller decision did not specifically grant the right to concealed carry as that specific issue was not before the Court and has not yet come before the Court. Heller was limited to the right to keep weapons in the home.

However, Heller does address most of the common arguments made by those, like LS, who believe the Second Amendment only applied to military uses and only applied to weapons used in the 1700s.

Both of those arguments are wrong.

But the main point I want to make today is that if we are going to discuss what the Second Amendment “means,” we all have to start at the same point. And that point is the Supreme Court’s decision in Heller.

So, arm yourself for future discussions with friends about the Second Amendment by reading what Justice Scalia had to say in District of Columbia v. Heller and, in the weeks to come, let’s discuss other aspects of this most fundamental right.

As always, let me know what you think. Write me at Rob@PatriotPrivacy.com

Be safe and secure,

Rob Douglas


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Comments

21 responses to “Interpreting the 2nd Amendment”

  1. John Buckman Avatar
    John Buckman

    WORST president in US History!!!!
    Even the Military HATES him!
    Obama has had FIVE Freeking Years to DO Something!!
    Can’t blame Bush for this Mess anymore .. 5 YEARS! = Nada!

    ***** “OPERATION AMERICAN SPRING”
    *** March on Washington DC
    *** MAY 16th !!
    Be there, or please Support those who do GO …………

    Over 2.5 MILLION Vets, retired Vets & Civilians have pledged to go and Demand
    a change of Personnel in DC – from the top – down !!!!!

  2. george stiefel Avatar
    george stiefel

    don’t think so–because thanks to the second amendment, the american people are still armed!

  3. Steven Avatar
    Steven

    I find the argument of LS not only to be too common, but also to be made frequently among those same persons who are behind the investigation of people who do belong to a militia group in this day. How can you belong to a militia without someone implying that this makes you a suspect at least, and at worst a terrorist. These people are the ones crying out for “common sense” and yet they want to outlaw militias and the ownership of guns by law abiding citizens. I believe if we disarm law abiding citizens, all we do is make it easier for those who are criminal types to steal, kill, injure and do whatever else they choose to do because they know there will be no immediate response should they do these things. Besides, how can they assume people who are twisted enough to do these terrible things like the tragedies we have all seen in the news will be stopped because of laws controlling guns…they were not stopped by laws against murder were they? It is my hope that no one ever needs to defend themselves with a firearm or any other way, but this is unfortunately not the world in which we live. Only in being prepared can we effectively deter these actions. Were this not true, the police and even the military would not have to be armed…right?

  4. E.K. McMahon Avatar

    I am a firm believer of common sense and the 2nd Amendment. I spent 4 years in the peace time active duty USMC. I never left San Diego County during that 4 years. Common sense gun ownership by private citizens does not include fully automatic weapons. A private citizen doing target practice or hunting has no real need for gun magazines or clips that hold more than about 10 rounds of ammunition. You don’t need 15 or 30 rounds of ammo in your rifle to go deer hunting. No real need for a pistol with a 15 round clip.

    We know why, or we should know our enough about our country’s history to know why the 2nd amendment was put in the constitution in the 1st place. I am totally against any group who wants to take the right of private gun ownership away from the citizens of our country. Let’s use common sense here, I’m not talking about giving guns to convicted felons etc.

  5. Richard Avatar
    Richard

    I think we have a right to have weapons, if we are law biding citizens, back then they only had muskets but now we have all sorts of guns and rifles, The meaning is the same we have the RIGHT,

  6. Richard Avatar
    Richard

    Every time there are people that would love to take your guns away for any reason, but when you are being attacked and you have no weapon you become the slave to the robber, and forget the police they won’t get there till after the fact, and the police aren’t there to protect you but to clean up the mess and find the person responsible, but for you its to late, but if you had a weapon you would have been better able to protect yourself. I think all law biding citizens should be armed, proof is that where you have guns you have less crime, most crimes are committed in NO GUN ZONES! and its the person behind the gun not the gun, what is he on, drug wise, and I have never had a gun seating at my front door kill anyone or even shoot by itself. Its not the Guns, Its the person behind it.

  7. Michael Avatar

    In my book Unalienable Rights and the Denial of the US Constitution I also point out that the Bill or Rights was not a grant of those rights but was a prohibition, a chain, to bind the federal government from passing laws which limited the peoples rights. Specifically, as pointed out in Heller, to ensure the people will never be disarmed by a central government as the British had done, and still do. The people had the right to keep and bear arms antecedent to the Constitution and the 2nd Amendment so stated that the government could not disarm the people thereby keeping balance of force between the government and the people. BTW, this included military style weapons.

  8. Tom Martin Avatar
    Tom Martin

    The second amendment does not create a right to be armed, it recognizes an existing (indeed innate) right and demonstrates how the newly formed country would find it to its benefit to not attempt to restrict it. So it FORBIDS infringing upon it in any way. The “purpose” of the right is no where addressed, the benefit of (already having) it is. But the right of the individual to be armed (to his own satisfaction; there were pistols as well) is taken as a GIVEN and so assumed in the amendment. Discussions of the time clearly demonstrate this idea and the infringement on it by the Crown sparked the necessity of such an amendment to assure ratification. For those “living document” statists, this would imply that individuals were EXPECTED to own arms commensurate with contemporary combat, whatever other uses they found for them in the interim, and that it would carry forward as society and technology progressed (the writers were well aware of technological development, even in firearms). The amendment has no expiration date!

  9. Founding Father Avatar
    Founding Father

    We were founded as a REPUBLIC! Not a democracy. Read the 1928 soldier training manual if you don’t know the difference. Also, to understand a law, you must read the legislative history. Read all texts and letters from the Founding Fathers and you will better understand the intent. The constitution is also a “charter” giving the federal government some of our Unalienable rights we delegated to state government through the state constitution. The bill of rights were added because the Founders were afraid that our God given Rights were not clear enough for the fed to not trample. The constitution gives us no rights- we get them from God. It only gives the government limited ability and a duty to protect our unalienable God given rights. They have no LAWFUL jurisdiction anywhere other than federal areas, forts, arsenals, and Washington DC. The order of rights flows from God to Man, instituting local gov to protect them and serve us. Then, some rights given to state gov through state constitution, and very little of state rights given to the Federal gov through the federal constitution. Next came the unconstitutional 14th amendment passed through a military coup(discussed in the June 1967 federal record) giving slaves inferior similar government granted ‘civil rights'(not unalienable) so that they would have some standing similar to sovereign state Citizens. This created the US citizen which was SUBJECT(=slave) to its creator the Federal government and later getting the mark(of the Beast) called the social security number. In the late 1800’s and the early 1900’s the supreme courts were calling US citizens “low and lawless forms of life”, “rabble”, “riffraff”, and other choice names. So you have to ask yourself if you are going to reassert your God given sovereignty as a state Citizen(American), or continue to be a slave(US Citizen). They brainwashed us into believing the wrong things and laugh at us when we have no clue. DO your own legal research and study common law cases and how the laws slowly subverted us.
    See http://www.state-citizen.org for a plethora of research and legal briefs and information. The first time I was on the site I was there till the wee hours of the morning getting more mad more mad that I was lied to for so long. Spend some time in a law library and this site and educate yourself. The truth will set you free.

  10. Terry Avatar

    I had the same discussion with a brother in law this weekend who made the same claim that the 2nd amendment applied to militia’s only. I fully agree with your interpretation. First of all, the amendment is not a run on sentence. The parts separated by a comma can each stand alone as a statement of fact in and of themselves.

    A well regulated militia is necessary for the security of a free state. (reworded for clarity but not change of meaning)

    The right of the people to keep and bear arms shall not be infringed.

    The first part is an application of the right expressed in the 2nd part. It does not serve to limit the right because as clearly noted the right to keep (own and retain) and bear (carry on their person) arms is one of the people and NOT that of government. Therefore, the government in actuality has NO authority to limit or transgress that right which is one borne by the people NOT government.

    All the first part of this comma separated amendment does is to suggest an application of the people’s natural right which emphasizes why it is so important that it not be tread upon, limited or infringed.

    Additionally, the term “well regulated” did not apply to restrictive control of the militia but rather regulated in the sense of adjusted by rule, method or forms or put in good order.

    For example, we regulate our moral conduct by the laws of God and society. Used in this sense than a militia would consist of able bodied men whose training is regulated by customary rule and methods.

    After all the amendment does clearly indicate that this militia is necessary for a “free state”. An oppressive state burdened by regulation as we are today is most certainly a far cry from a free state and surely does not apply to the intent of this amendment one could conclude. For how can a state that is subject to constant regulatory restrictions on its basic rights such as the right to keep and bear arms be considered free? In short, it cannot.

  11. Lewis Heisch Avatar
    Lewis Heisch

    LS
    Must live in the City-Police response time can be 30 minutes +
    See someone standing at the foot of my bed (no) they must first break in
    LS must have his head in the sand, he needs to check the local crime reports.
    West Texas, New Mexico, Arizona, lots farms and ranches. under staff
    under budget over worked sheriff departments-response time hours.
    Get Real LS
    Lewis Heisch

  12. Philip Lebow Avatar
    Philip Lebow

    It is well established, that the phrase “the people” applied to all citizens. The ‘militia’ referred to an armed populace able to depose a tyrannical government by force of arms, if necessary.
    These are clear to any constitutional scholar.
    ANY document can be lawyered into having a different meaning, depending on the lawyers agenda.
    As the governing document and foundation of our beloved America, I am short of patience with
    lawyers-come-lately, who toe the socialist line. Or, as I have discovered as a member of the firearms business for 21 years, many liberals are just scared to death of firearms. They have no frame of reference for use, except the mass media, which always depicts firearms at their worst.
    Firearm depiction helps make the media a tidy profit however.

    The liberal/Marxist agenda insists that the populace at large be disarmed, and lethal force be
    concentrated in the hands of political despots for “The peoples good”. As in the Soviet Union,
    Red China, North Korea, and other totalitarian regimes.

    One of the greatest mysteries is why liberal/socialists continue to believe that Communism works, when it has such a long history of failure.

    Martial law and political internment are earmarks of Communism on the rise.
    This is why a “well regulated Militia” is still a relevant part of our beloved Constitution.

    Those who ignore history………..

  13. Gary Graham Avatar
    Gary Graham

    The 2nd amendment right is true in the order of protection. You have a right to protect yourself, your family, your property. When you see cowboy shows on tv, they are wearing guns to protect themselves. Always the bad guys looses in the show. If they take my guns away, the bad guys will have guns,I will not have the protection that I need. The bad guys will win.

  14. John L. Avatar
    John L.

    This guy LS is so wrong because in all SCOTUS decisions, and other case law (and I’m not an attorney, but an avid law enthusiast), because of punctuation and/or lack of, where it states (according to the rule of law and, the Magna Carta, and other pertinent basics) “the right of the people” means “individuals”. Period.

    While it “appears” that SCOTUS did not specifically grant the right to concealed carry, it did not oppose it, either, nor did it regulate bit, but it may soon. NJ, has a write of certiorari to the third circuit court of appeals for the unconstitutional NJ concealed carry laws, which is mostly specific to NJ, and may well affect the other states (a few) with ridiculous carry restrictions. It basically is asking SCOTUS to explain the Heller, decision, etc. to NJ, who has said that the Second Amendment is not a right, but a “priviledge, and that because their laws have been on the books longer than the Heller decision, that NJ law prevails before SCOTUS.
    For your entertainment, and opportunity to laugh at some of the most absurd rulings in NJ, you can read the writ here:
    http://c.ymcdn.com/sites/anjrpc.site-ym.com/resource/resmgr/Legal_Motions___Briefs/drake_cert_petition_FILED.pdf?utm_source=RTC+Email+Jan+2014&utm_campaign=Oct+11+updates&utm_medium=email

  15. Jeff Winthers Avatar
    Jeff Winthers

    Apparently, I have not the ‘wisdom’ of LS, in that I have not lived as long as he (or she, as the case may be), having attained a mere 68 yrs of age. That fact notwithstanding, LS appears to have failed in the study of history! History is rife with examples of populations that have been ‘disarmed’ for the ‘good of society’! There are many literary works describing the relatively recent historical events of 20th Century Europe and Asia. I encourage LS to read them to understand what will happen (and apparently is happening!) in North America!

  16. Ray Paul Avatar
    Ray Paul

    We all owe a debt of gratitude to the supreme court justices who supported this majority opinion.

    Unfortunately, it’s a rare time for us to find them considering the most basic and therefore, the most important issues of constitutional law.

    They spend most of their time in deliberation over abstruse legal technicalities which, when taken in whole, have always tended to tighten the noose around our liberties.

    Nonetheles, I raise a toast to them for this one and way too infrequent exception to their regular work.

    Sincerly,

    Ray Paul

  17. jeffrey l larsen Avatar
    jeffrey l larsen

    Although I respect LS opinion I don’t share his interpretation, Boiled down the constitution identifies freedom and the position the framers and new residents of the country took in response to the tranny of the British. The 2nd Ammendment actually identified the seriousness of defending that freedom. THAT said, Freedom is the key. The gun owners of this nation exhibit the choice of exercising that freedom. Understandably there are citizens who don’t care about freedom, they assume the Government has their best interests in mind. For those that fought for it, FREEDOM has a taste that the protected will never know. Knowing LS would probably respond “when did any of us defend our freedom lately”. I understand that feeling. I have re -occurring dreams of my Vietnamese counterpart begging me to take he and his family with me as I boarded my flight to my freedom. His and his family’s fate was sure death or imprisonment upon the hands of North Viet Nam. Our complancy to our freedom allowed our gov’t, by pressure from “the protected”, to abandon South Viet Nam…….Any Freedom lost will never be regained.

  18. Brian Weddle Avatar
    Brian Weddle

    Every single person in this country who believes in the importance of the true meaning of the second amendment needs to read the DC Heller decision very carefully. If you agree that the right to self defense and the responsible bearing of arms is critical to every American you need to be able to articulate this decision and the ideas it defines at a moments notice. We cannot begin to turn back the tide of ignorance and the personal agendas of the gun control movement and those who support it without clear logical reasoning. Thank you so much for pointing out the importance of this decision.

  19. Martin W, Conrad Avatar
    Martin W, Conrad

    The second amendment to the Constitution of the United States reads as follows “ A well regulated militia, being necessary for the security of the country, the right of the people to keep and bear arms, shall not be infringed.”
    Short, straightforward, and concise. What it does NOT say is what most people assume that it does say. It does not say a well armed militia. It ways well regulated. The militia already exists, and like the amendment says, it is necessary for the security of the country. However, for “We the people” to retain the other freedoms afforded us by the constitution the militia must be regulated. The means for regulating the militia (CIA,FBI,NSA, National Guard, Police forces state and local) is defined by the second amendment as the peoples right to keep and bear arms. It is not about forming a militia, hunting, or even self preservation. It is about right of free passage, free speech, freedom from unlawful search and seizure, freedom of assembly without having to worry about being overrun by tanks and SWAT vehicles. The right to keep and bear arms is the most important amendment to the constitution simply for the reason that it is the one that enforces the rest. Think about that the next time you use your right of free speech to advocate gun control and ask yourself how much longer you will have that right with no means of enforcement or redress.

  20. George Avatar
    George

    I would recommend Dr Lawrence Tribe, a Harvard professor (Tenured) of Constitutional Law. I recommend to any one interested in the 2nd Amendment: Look him up, and research his views. Not ALL liberals are pinheads.

  21. tom smith Avatar
    tom smith

    I would point out the FIRST part of the 2nd amendment is the important part.

    A well regulated Militia, being necessary to the security of a free State,

    We have no Militia, much less a well regulated one
    Our States are not secure, and we have no FREEDOM!

    necessary: This is the ONLY place it is used? Why?

    What is it that the well regulated Militia is tasked to do?

    Why they enforce the laws of the Union: Federal laws…Unjust acts of congress ignored!

    Imagine a militia member searching a fellow member before boarding a plane
    YUP got your gun GOOD, Just like everyone else – Go ahead and board.

    Imagine a militia member stealing 30% of his next door neighbor’s pay check
    So that the neighbor can steal 35% of his check?

    First they did away with the Necessary Militia 1890’s
    Then they did away with the military firearms 1934
    Now it will not matter that you can still carry a handgun….20??

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