A BRIEF PRIMER ON THE SECOND AMENDMENT

This is not intended as a scholarly or comprehensive work with multiple citations from many many sources. Rather it is designed to lend a basic understanding of what the Second Amendment right to bear arms means from an historical viewpoint prior to our Comstitution, what is contained in the Constitution itself, and the effect of the landmark case of District of Columbia v Heller, 554 US 570, (2008) that clarified, if not broadened the rights of individuals to possess and use firearms.

Let us start from the American Revolution in which the embattled farmers stood against the British Redcoats at Lexington and Concord. These were militias, de facto if not officially blessed by any government. Naturally the men here provided their own weapons as there were not public armories from which weapons could be drawn.

Once the Revolution was in full force, General George Washington commanded a regular Army while militias in several colonies played a critical role.

All this should be essential knowledge for any American and the particular details are of little practical concern here.

Once the war was won the former colonies were bound together by the Articles of Confederation, which soon proved to be pretty inadequate as a mechanism to govern what was one nation.

Eventually a convention was convened in Philadelphia in May 1787 that would lead to the adoption of our Constitution, the basis for our form of government today.

There was much debate among the delegates as to exactly how to either reform the Articles of Confederation, their official assigment, or to create a new form of government which the delegates became determined to do.

Apart from the Convention itself three of our most literate and erudite founding fathers wrote extensively on what criteria should be considered in strengthening the central government. This collection of 85 essays by John Jay, James Madison, and most especially Alexander Hamilton became known as the Federalist Papers.

In no way are these documents an official part of our laws but their importance is considerable in that they reflect much of the thinking and discussion taking place among the delegates who actually created the Constitution. And, of course, James Madison is deemed the father of that document just as Thomas Jefferson is credited with the Declaration of Independence.

It has become very popular and common among conservatives to use the Federalist Papers in support of their notions of the “original intent” of the Founding Fathers in creating the terms of the Constitution, particularly so when trying to limit the government in any way shape or form.

So let us examine the 2nd Amendment in this light.

From Federalist Papers # 29 by Hamilton:

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. http://thomas.loc.gov/home/histdox/fed_29.html

 Article I, Section 8 of the Constitution delineating the powers of Congress:

To provide for organizing, 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;

This is the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.  http://www.usconstitution.net/const.html

Read those three passages in conjunction with each other and realize I have presented them in the same order in which they were written.

I believe that gives great weight to the notion that the right to bear arms is inherently granted only so far as the militia is concerned.

As we all should know the Supreme Court is the ultimate interpreter of our Constitution. Thus we have this part of the holding in District of Columbia v Heller, the 2008 case deciding individual gun ownership was permitted by the 2nd Amendment:

“(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. 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. Pp. 22–28.”

The Court also recognized that some state constituions, predating the federal one, protected ownership of guns.

But (and there are often big buts in SCOTUS cases) the Court also ruled:

2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”

Taken all together, the basic state of the law is that generally firearm ownership is protected but the government  does have some power to limit the types of guns and who may own them and where they are permitted.

In this time, now a month past the tragic and horrific murders in Newtown, Conn. there is ample rhetoric calling for more controls on at least the type weapons usually put to work in these mass slayings while at the same time our 2nd Amendment defenders resist any limitations whatsover.

Our reality is that the 2nd Amendment, is not absolute. It, like the other provisons of our Bill of Rights, is to be cherished but, in practice and under certain conditions is most definitely not unlimited.

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Comments

  • Devildog  On January 13, 2013 at 10:58 PM

    Another brilliant treatise from UMOC, correct in all aspects except for the last seven words of the next to last paragraph; that is, “2nd Amendment defenders resist any limitations whatsoever”. What a gross overstatement that does nothing to further the debate.

    • umoc193  On January 13, 2013 at 11:25 PM

      In this case I was emphasizing the “either-or” argument of extremes. That is many advocates of gun control believe the 2nd Amendment applies only to militias while many opponents believe in no restrictions. I thought that was clear from the context. I did not mean to paint either side as consisting solely of these extreme views.

  • Devildog  On January 13, 2013 at 11:44 PM

    Okay, I’ll accept your explanation, but there seems to be quite a qualitative difference between resisting any limitations “whatsoever” and rhetoric calling for more control over weapons used in mass killings (which seems more reasonable that resisting limitations whatsoever).

    And I think even the most ardent “gun supporter” would agree his/her rights are not unlimited (as would the NRA).

    • umoc193  On January 14, 2013 at 1:06 AM

      Look at some of the crazy rhetoric emanating from each side. Wayne laPierre hasn’t won any friends for the NRA with his recent public appearances, at least among the people who want a reasoned discussion. The NRA uses scare tactics to build membership and encourage more gun sales. That’s the leadership in action, not the base.

      I have no doubt the majority of members belong for reasons other than the nonsense he has been spouting. On the other hand, two close friends of mine…both hunters and conservatives…hate the NRA due to that very nonsense.

      But note that I also placed those who believe in the most narrow interpretation of the 2nd…just basically for militia use (though I do not think they believe in reversing the gun ownership already existing) at the more extreme end of the spectrum, too.

      Remember that I was providing a simple overview, not exploring all the nuances of the background for and the variations of any arguments either way.

      Personally I believe that a few measures seem to have a good chance of working but an overall approach must be developed to protect both the rights of owners and the rights of citizens to be free from such mass slaughters as have triggered the current debate.

      I am not naive or stupid enough to anticipate that gun violence will ever end.

  • Little_Minx  On January 16, 2013 at 1:34 PM

    In case you missed Reg’s insightful column this AM, “A lack of logic on guns kills people”:
    http://www.post-gazette.com/stories/opinion/reg-henry/a-lack-of-logic-on-guns-kills-people-67056

    • umoc193  On January 16, 2013 at 2:04 PM

      Yes, I read it early this morning. But thanks for the heads up just in case I hadn’t.

      • Little_Minx  On January 18, 2013 at 12:20 AM

        I later noticed that at least two former Reg-ulators (not naming any names, of course!) had chimed in, in Reg’s defense.

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