The Second Amendment Explained

ProudProgressive 2012/12/22 15:26:08
OK, I get it.
Shut up and give me more guns.
None of the above
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When the Constitution and the Bill of Rights were created, our nation was still in its infancy. We had just ended a war of independence against a tyrannical monarchy. One of the most potent weapons the British crown employed to maintain control over the colonies was the deployment of a standing army, ready at any turn to suppress any protests or suggestions of insurrection. The Boston Massacre, for instance, arose from the resentment of Massachusetts colonists of the British troops that pervaded Boston. So, when the Framers drafted the Constitution, they made no provision for the creation of a standing army. In times of impending war, an army would be raised with contributions of men and supplies from the various states. They were raised for a specific time frame, and when the battle ended or was averted, the army was disbanded.

Naturally, a situation like this posed dangers. If the United States was invaded by a foreign power, or if a group of rebellious persons within this country attempted to foment an insurrection, the United States had no immediate means of meeting those threats. To respond to this problem, the Founders chose to rely on a "well regulated militia". The militia consisted of all of the able bodied white males of a given state or locality, who could be called into service by the Governor of a given state or by the President of the United States. (Article II specifically provides that the President is the Commander in Chief of the Militia). In order to be assured that the militia would always be ready to serve, the members of any potential militia had to have arms. A militia would be useless if they did not have the equipment necessary to do the job they were there for - the defense of the United States. For this reason, the Framers provided that the right of the people to keep and bear arms could not be infringed. Indeed, in the Second Militia Act of 1792, President George Washington issued a mandate that:

"conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack. Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen. Otherwise, men were required to report for training twice a year, usually in the Spring and Fall. The militias were divided into "divisions, brigades, regiments, battalions, and companies" as the state legislatures would direct. The provisions of the first Act governing the calling up of the militia by the President in case of invasion or obstruction to law enforcement were continued in the second Act. Court martial proceedings were authorized by the statute against militia members who disobeyed orders."

This setup was not unduly complicated. The United States needed a means to defend itself from attack, and the Second Amendment provides for the availability of an armed militia to do so. At no point did the Framers ever suggest that the Second Amendment was intended to provide the population with a means of overthrowing their own government. It was a collective obligation of the community to defend their own country. At times when a militia was to be called into service, the members had to have guns available to do their job, and for that reason the right of "the people" to keep and bear arms was protected. The people. Collectively. Not individually.

The phrase "the people" appears several times in the Constitution.

-- In the preamble, the Constitution provides that it is created by "we, the people". This is a collective reference to all of the people of the United States.
– Article I, Section 2 provides that Representatives be elected by "the people of the several states." Again, this refers to the entire community, not to individuals.
– The First Amendment refers to "the right of the people peaceably to assemble". Obviously, an individual cannot "assemble" and this too is a collective right.
– The Fourth Amendment refers to "the right of the people to be secure in their houses..." Once more, a reference to all of the people and all of the houses.
– The Ninth Amendment states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." All the people.
– The Tenth Amendment states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people." Again, all the people.
– The Seventeenth Amendment provides that Senators be elected by "the people of the several states". An individual does not elect a Senator. All of the people do.
– The Seventeenth Amendment also provides that vacancies in the Senate be filled by "temporary appointments until the people fill the vacancies by election as the legislature may direct."

On the other hand, the Constitution also makes numerous references to a "person".

-- Article I, Section 2 provides that "No Person shall be a Representative who shall not have . . ." This is a reference to individual qualifications and refers to individual persons.
– Article I, Section 2 also provides for the distribution of representatives in the House by population: "determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
– Article I, Section 3 provides that "No person shall be a Senator who shall not have . . ." Another provision of individual qualification.
– Article I, Section 3 also provides that in cases of impeachment "no Person shall be
convicted without the Concurrence of two thirds of the Members present."
– Article I, Section 6 provides: " no Person holding any Office under the United States,
shall be a Member of either House during his Continuance in Office."
– Article I, Section 7 provides for the passage of legislation: " the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House."
– Article I, Section 9 refers to the slave trade: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit" and also "a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
– Article I, Section 9 also states: " no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present."
– Article II, Section 2 provides: "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."
– Article II, Section 2 also provides: "The Electors shall meet in their respective States, and vote by Ballot for two persons. . . And they shall make a List of all the Persons voted for" and "The Person having the greatest Number of Votes . . . and if no Person have a Majority. . . , the Person having the greatest Number of Votes . . ."
– Article II, Section 2 also says this, which should be familiar to everyone by now: "No person except a natural born Citizen . . .neither shall any Person be eligible . . ."
– Article III, Section 3 provides: " No Person shall be convicted of Treason . . ." and " except
during the Life of the Person"
– Article IV, Section 2 provides: "A Person charged in any State ..." and "No Person held to Service or Labour in one State . . ." [this is the fugitive slave clause]
– The Fourth Amendment provides: "The right of the people to be secure in their persons" and "the persons or things to be seized."
– The Fifth Amendment provides: "No person shall be held to answer . . ." and "nor shall any person be subject. . ."
– The Twelfth Amendment provides: "they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President" and "The person having the greatest Number of votes" and "and if no person have such majority, then from the persons having the highest numbers" and "The person having the greatest number of votes as Vice-President" and "and if no person have a majority" and "no person constitutionally ineligible"
– The Fourteenth Amendment, section 1 states: "All persons born or naturalized in the United States" and "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
– The Fourteenth Amendment, section 2 states: "counting the whole number of persons in each State"
– The Fourteenth Amendment, section 3 states: "No person shall be a Senator or Representative in Congress . . ."
– The Twentieth Amendment, section 2 provides: "such person shall act accordingly"
– The Twentieth Amendment, section 4 provides: "The Congress may by law provide for the case of the death of any of the persons . . . and for the case of the death of any of the persons . . ."
– The Twenty Second Amendment provides: "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President
shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President . . ."

And there you have it. The Framers of the Constitution were generally very careful in their choice of language. As the foregoing illustrates, when they wanted to talk about individual rights and obligations, such as who can run for President, they spoke of "the person" or "the persons". When they wanted to talk about collective rights, like electing a Senator, they spoke of "the people".

When it came to the Second Amendment, the provision was included in the Constitution to protect the nation as a whole from invasion or insurrection. In the absence of an army, that protection came in the form of the local population, collectively. The right of the people to keep and bear arms was provided in order to assure that when needed to defend the country, those members of the population called into active service would be prepared to do so. It was never intended to be an individual right. The right to bear arms provided in the Second Amendment was for the defense of the nation, or if you will, the community. It was never intended to be a means of individual defense. If it had been, given the care with which the Framers chose their words (as described above), the Second Amendment would have read "no person shall be deprived of their right to keep and bear arms." It doesn't say that. It provides explicitly that the right to bear arms is for the purpose of maintaining a "well regulated militia."

It is also illustrative to recall that in the 1790s in most communities, the arms to be kept and borne by the people were generally not kept in each individual' home. A local armory was maintained with a stockpile of weapons to be available should the militia be needed. Indeed, the Battle of Lexington and Concord occurred because British troops were attempting to take control of the local armory. Many individuals might have personal arms for the purpose of hunting, but others, like the local lawyer, doctor, blacksmith, or clergyman, would generally not own a gun, but would depend on the community for their collective safety.

A common rule of Constitutional construction is the premise that there is nothing in the Constitution that is not there for a purpose. Nothing in the Constitution is superfluous. If the Second Amendment was not designed to provide for a well regulated militia, it would not say so. It would simply say "The right of the people to keep and bear arms shall not be infringed." This was the fatal flaw in the majority decision in District of Columbia v. Heller, 554 U.S. 570 (2008). In reaching their decision, the Court basically ignored the phrase "A well regulated militia, being necessary to the security of a free State" and instead abandoned over 200 years of precedent in order to create a right that is not in the Constitution - an individual right to bear arms.

The Supreme Court in this country has the last word. Once they have ruled, the issue is settled unless and until one of three things occur - a subsequent Supreme Court decision that reaches a different conclusion, new legislation from Congress or a state legislature (which themselves would be subject to the Supreme Court's opinion as to whether they are constitutional), or an amendment to the Constitution. So as of today, there is an individual right to keep and bear arms. However, even Heller does not go so far as to explicitly strike the first half of the Second Amendment. Even if an individual does have an individual right to own guns, the State still retains the right to regulate such ownership. One may have the right to own a gun, but he does not have the specific right to own a specific kind of gun. One may have the right to own a gun, but he does not have the specific right to own a thousand guns. If a law was passed providing that an individual can own one gun and only one gun, that would be constitutional. If a law was passed providing that an individual can own a gun or guns but only that category of guns which can only fire ten shots, or six shots, or even one shot, before reloading, that would be constitutional.

The Founding Fathers were not demigods, but they were wise men, perhaps the greatest assembly of intellectual power this nation has ever seen. The system they designed was not perfect, but it was the best plan the world had ever seen, and has ever seen since. They made provisions to protect our nation. They made provisions to protect individual rights. But they knew the difference. And it is the breakdown of that difference which has led to a society in which twenty children can be murdered, only to be followed by some insisting that we respond to this tragedy by increasing the number of guns in our society and thus increasing the chances of another tragedy.

It isn't too late for us to right the ship. One can only hope that no other innocent children have to die while we try to do so.

[Quote on Militia Act of 1792 courtesy Wikipedia]
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  • phil.olding.3 2013/01/10 04:40:31
    Shut up and give me more guns.
    The Bill of Rights is very clear - the people have the right to keep and bear arms, not the militia. The militia has nothing to do with it now that the right exists, it is of the people, and shall not be infringed.

    It is not the right of the militia to keep and bear arms. It is the right of the people.

    There's a reason that right exists, but not a reason to exercise the right. Because the right exists, and SHALL NOT BE INFRINGED, any reason to exercise the right to keep and bear arms is valid. Because the right is of the people, the people can keep and bear arms for any reason.

    Furthermore, ARMS are for KILLING PEOPLE - or at least using enough force to stop them. Guns are not arms unless they can assault people. Assault weapons are the only ones protected - that's any weapon that can assault someone, not the stupid media definition of "big scary rifle".

    Real truth: The only part of what I just wrote that was my opinion was that the media definition of "assault weapon" is stupid. Everything else is FACT.
  • BlunderWoman 2012/12/29 18:16:12 (edited)
    None of the above
    While I don't think that we should be meddling in the rights of people to own weapons, I do think more regulations are in order, because apparently it's not common sense that owning an arsenal when you have an insane person living in your house is a bad idea...and one that has the potential to affect many people.
  • ProudPr... Blunder... 2013/01/07 01:37:14
    All that most people are really looking for, I think, is common sense. Yes a person can own a gun, but a person can be adequately protected without the ability to fire fifty rounds without reloading. And background checks protect gun owners as much as they protect anyone else.
  • phil.ol... Blunder... 2013/01/09 23:11:00
    You don't think we should be meddling in the rights of people, but you think more regulations are in order? So you don't think what you do think?

    Allowing someone who is prohibited access to firearms to have access to firearms is a federal felony. You think we need more words on paper making that act more federal felonies, or do you think we should enforce current laws?
  • Blunder... phil.ol... 2013/01/10 00:19:14
    To clarify, I don't think stopping responsible people from owning guns is the solution, but I do feel that we need to make it harder for crazy people to own or have access to guns.

    Many things that are legal are regulated. You can drive, but you must have a license, and you must obey traffic laws. Do you also think we should stop obeying traffic lights because they don't prevent all accidents?
  • phil.ol... Blunder... 2013/01/10 04:26:19
    I think if the government wanted to take away not only our right to drive around, but our cars, without paying us fair market value from them, I would say that traffic laws are the least of our concerns.

    To clarify, the definition of "assault weapon" - any weapon that can assault a person - is the same definition as "ARM", as protected by THE BILL OF RIGHTS.

    So, if you make crazy people and criminals get registered, instead of making law-abiding gun owners get registered, and mandate that crazy people and criminals get an ID saying that they're crazy and prohibited from owning a firearm (as in that's printed on your driver's license, for instance), then EVERYTHING would be solved! No background checks required, just look at a person's license, and don't sell the gun to them!

    Mandating that I register my guns will only allow the government to take them away from me. That is unacceptable.
  • Blunder... phil.ol... 2013/01/10 07:55:43 (edited)
    "To clarify, the definition of "assault weapon" - any weapon that can assault a person - is the same definition as "ARM", as protected by THE BILL OF RIGHTS."

    Where did I say anything about assault weapons? Can you stop parroting talking points from the NRA and have an actual conversation? Because if not, I have absolutely no desire to talk to you.

    I never claimed that increasing background checks to include crazy people would "solve everything". Clearly, you're not willing to be an adult and have a conversation that doesn't include hyperbolic statements that attempt to put words into my mouth.

    "Mandating that I register my guns will only allow the government to take them away from me. "

    That's an extremely paranoid statement. Please see my last sentence in the paragraph above. Good evening, Sir.
  • phil.ol... Blunder... 2013/01/11 12:04:18
    I'm not parroting the NRA. The NRA is using fact and logic, and if anything I've said - if any of MY words are the same as theirs - it's because we're both right!

    Mandating that I register my guns is ONLY for the government to take them away. Registration accomplishes nothing else. Literally, nothing.

    It's not paranoid to think that the government will come for my guns. They probably will. Look at every other country in the world that has banned guns - a bunch of idiots like you said "They'll never do that!" and "No one is even suggesting that!" Then, one step at a time, they ban more guns, and it does nothing. Then, one step at a time, they work their way to a total gun ban.

    I WILL NOT let that happen here. It's not paranoia to be cautious. It's irresponsible to trust the government.
  • Blunder... phil.ol... 2013/01/11 15:31:08
    "I'm not parroting the NRA. " Yes you are. I never once mentioned anything at all about assault weapons, yet you went on about them for an entire paragraph. Why?
  • phil.ol... Blunder... 2013/01/12 11:08:35
    Because you said "I do think more regulations are in order"

    The only regulations that are in order are the ones that make it crystal clear, and provide penalties, that our rights exist, and people shall not violate them.
  • Blunder... phil.ol... 2013/01/12 14:09:25
    And you automatically whipped out the "assault weapons" rant? Because that's not what I meant. At all.
  • phil.ol... Blunder... 2013/01/13 13:39:13
    It is what I meant. It may be unrelated to your train of thought, but it is directly related to the bill of rights.
  • Blunder... phil.ol... 2013/01/13 23:35:12
    So you were just parroting talking points for no reason, then. Good to know.
  • phil.ol... Blunder... 2013/01/14 05:22:57
  • Blunder... phil.ol... 2013/01/14 17:10:55
    You were parroting because you went off topic, spouting about a topic I didn't even remotely touch on. I find that parrots are dull to talk to for very long. They have so little to say.
  • phil.ol... Blunder... 2013/01/14 22:44:39
    Parroting involves repeating what someone else said.

    You're an idiot.
  • bill.fleming.77 2012/12/27 16:08:12
    None of the above
    Nice try. A whole bunch of words and copy/paste going on and you still have it wrong.
  • Philip ... bill.fl... 2012/12/29 03:03:35
    Philip Bauer
    Because??? you say so?
  • ProudPr... Philip ... 2012/12/29 12:14:56
    Everyone's entitled to their own opinion. I simply prefer to back mine up with facts.
  • hippycat ProudPr... 2013/01/05 14:06:16
  • bill.fl... Philip ... 2012/12/29 19:41:19
    Yes indeed, me and around another 80 to 100 million people in this country.
  • ProudPr... bill.fl... 2013/01/07 01:38:06
    Good, that still leaves 235 million of us who have it right.
  • bill.fl... ProudPr... 2013/01/07 20:18:53
    Please forgive me for introducing facts into this discussion

    The adult population in 2012 was estimated at 76% of the total US population, estimated at 313 million, for a total of 237 million.

    In 2011 the ATF estimated that 47% of the adult US population lived in households with guns.

    47% of the adult population or 111 million adults own guns and one can make a conclusion that they support their 2nd Amendment right to bear arms and agree with my correct interpretation of the 2nd Amendment.

    I think it is also a safe assumption that that number may actually be higher because not everyone that believes in the 2nd Amendment owns a firearm. I personally know of 2 people in that exact category.

    My initial estimation of 80 to 100 million was shy by around 10 to 20 percent.

    My bad I hope you forgive me for my inaccuracy.
  • ProudPr... bill.fl... 2013/01/09 02:08:38
    LOL I was humoring you. While I'll admit that there may well be 100 million people in this country who don't understand what the Constitution says and what the supreme law of the land is, but I doubt you could truly gather more than a few thousand of them who are paranoid enough to commit suicide by ignoring lawful gun regulations.
  • bill.fl... ProudPr... 2013/01/09 18:29:41
    I did not know that was part of the discussion or why you injected it into it but since you did. Can you clarify why lawful gun owners would commit suicide?

    If you are suggesting that gun owners would fight to keep their guns if laws were passed to make legal gun ownership illegal and in going against the law and the Government would essentially be committing suicide then I would have to agree with you. It may be more than a few thousand that would die trying even though many more would probably put up a fight and then stop before being murdered by our government.
  • phil.ol... ProudPr... 2013/01/10 04:27:49 (edited)
    " I doubt you could truly gather more than a few thousand of them who are paranoid enough to commit suicide by ignoring lawful gun regulations"

    Right, like the first American revolution didn't happen.

    Tens of millions would stand up and do something. More than 2 million would be actively fighting. That's more than our nation's current military force, and FAR less than the insurgents in Iraq/Afghanistan that our country has not killed off.
  • ProudPr... bill.fl... 2012/12/29 12:14:30
    The only parts that are copied are the quote about the Militia Act (which I credited to Wikipedia) and the Constitution. I'm not surprised that you didn't recognize it. You're free to disagree with my opinion, but I stand by it.
  • bill.fl... ProudPr... 2012/12/29 19:40:20
    Thank you and I will stand by my opinion that your interpretation is 100% incorrect.
  • Jeremiah bill.fl... 2013/01/02 17:03:42
    You don't support yours with any details.
  • bill.fl... Jeremiah 2013/01/03 16:06:11 (edited)
    This site explains it well:


    I am so tired of defining this for people that simply do not like the real facts. So now I just send people to this link.

    This site lays it out well and not as wordy,

  • Jeremiah bill.fl... 2013/01/03 19:25:49
    Gun Site? God Sees You? Just a little biased, don't you think? I was hoping for a reliable understanding, not RW opinions.
  • ProudPr... Jeremiah 2013/01/07 01:50:28
    Most of the people who argue against the plain meaning and common sense explanation of the Second Amendment tend to rely on the biased observations of people who were around at the time, some of whom attended the Convention but many who did not. Not that those observations are necessarily wrong, but they are more statements intended to urge a particular point of view than observations of actual intent. For instance, people tend to treat The Federalist Papers as almost as authoritative as the Constitution itself. But the reality is that the Federalist Papers were written by Hamilton, Madison and Jay in an attempt to convince the public to support ratification of the Constitution. That's why you will not find any criticism of the Constitution in the Papers. In some cases the opinions are wildly inaccurate. It would be like 200 years from now finding a Sarah Palin speech and concluding from that and only from that that the United States once created death panels to kill "defective" children (her word, not mine).

    I also note that the guncite article mentions the interpretation of a man who is quite possibly the single leading Constitutional scholar in America right now, Yale law professor Akhil Amar, whose opinions tend to coincide with mine. I give them credit for mentioning an incredibly reliable source, but then they turn around with the typical "of course, when you look at what he says [with our very biased view] it doesn't make any sense."
  • bill.fl... ProudPr... 2013/01/07 20:21:08
    I hear you, opposing views always throws a kink in ones false sense of the truth.
  • ProudPr... bill.fl... 2013/01/09 02:09:38
    Sorry about your kink. Maybe you should stop reading. I can see where exposure to factual information could be painful for you.
  • bill.fl... ProudPr... 2013/01/09 18:30:33
    Don't stop now you have become amusing to me.
  • Jeremiah ProudPr... 2013/01/08 21:17:05
    I agree. What did you expect from our friends here? They are used to getting their info in sound bytes or on Twitter.
  • bill.fl... Jeremiah 2013/01/07 20:20:15 (edited)
    I knew I would get that. As an Atheist and a gun owner what can I expect. Can you source your information from Moveon.org or another liberal/progressive propaganda machine
  • Jeremiah bill.fl... 2013/01/08 21:21:15
    Who said I am an atheist? I didn't. I am a gun owner who doesn't like guns, so I keep them locked away.

    What would you like for me to "source?" "Liberal/progressive propaganda machine?" What is that? Would it be the opposite of a Conservative/regressive propaganda machine, like Fox or Rush?
  • bill.fl... Jeremiah 2013/01/08 21:45:17
    I could not go as far as to say opposite. I cannot speak of Rush since I do not listen to pundits and the little I have heard of his broadcast I find him to be an insulting bully. You caught me on Fox I do in fact watch Fox as one of my news sources.

    I did not say you were an Atheist. Read it again I was saying I was an Atheist and gun owner.
  • Jeremiah bill.fl... 2013/01/08 21:50:18
    Perhaps you should change that sentence.
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