The Right of The People to Keep and Bear Arms

Amendment II: 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.

Militia

Here we go, the U.S. Supreme Court is going to try to reinterpret the Second Amendment. The collective right of the People to keep and bear arms stems from English tradition of distrust for large standing armies, and the desire to force the federal government to rely instead on citizen-soldiers for national defense. There is no individual right to keep arms in English law.

Some have argued that the Fourteenth Amendment altered the meaning of the Bill of Rights, making the Second Amendment guarantee morph into an individual right to bear arms. The Supreme Court has not yet agreed with that interpretation.

In United States v. Miller (1939) the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. Citing the original provisions of the Constitution dealing with the militia, the Court observed that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.”

The case now before the Court, Parker v. District of Columbia, involves the first federal appellate opinion to overturn a gun control law – Washington, D.C.’s handgun ban – on the ground that the Second Amendment protects the rights of individuals. The Second Amendment applies only to the federal government and does not normally prevent state and local governments from regulating the possession of firearms, however the District of Columbia is a special case. The U.S. Congress has the ultimate plenary power over the district. It has the right to review and overrule laws created locally and has often done so.

Stay tuned. This is going to be interesting.

  1. #1 by Jeremy on November 21, 2007 - 12:36 pm

    Your interpretation requires that we understand “the people” in the second amendment to mean something other than it means in the other amendments where rights are secured to “the people”. Just as a sidenote…In the Bill of Rights the word “people” isn’t capitalized in the second amendment as you have in your version of the amendment’s text.

    Other state constitutions and writings contemporanious with our bill of rights very clearly stated the right to keep and bear arms as an individual right based in part on the text of the 1688 English Bill of Rights. It seems pretty clear in a historical context that the amendment reserves this right to the people in the same manner that the first amendment reserves the right to peacably assemble to “the people”.

    The scope of this right may be debatable but the fact that it is an individual right seems pretty clear in both the wording of the amendment and its historical context. There isn’t a clear need for an armed popular militia these days but that doesn’t change the fact that the individual right to keep and bear arms is still preserved by the second amendment.

    For more information here is Prof. Eugene Volokh:

    http://www.law.ucla.edu/volokh/beararms/testimon.htm

  2. #2 by Richard Warnick on November 21, 2007 - 12:48 pm

    Thanks for a well-reasoned comment, Jeremy. Like I said, this Supreme Court case is going to be interesting. See Wikipedia for the basis of my discussion above.

    Regarding the meaning of “the People”, the U.S. Supreme Court stated in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), “the people” seems to be a term of art used in select parts of the Constitution and contrasts with the words “person” and “accused” used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that “the people” refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

    Because the Bill of Rights was originally handwritten by different people, there are different versions with differing punctuation and capitalization. I chose the version that was sent to the states for ratification in 1789, with State and People capitalized.

    The Bill of Rights of 1689 gave the right to bear arms as a privilege for Protestants only (i.e. a class of persons), it was not an individual right as we understand it. The United Kingdom today does not recognize an individual right to own firearms, and has some of the strictest gun legislation in the world.

  3. #3 by WP on November 21, 2007 - 2:36 pm

    If you belong to a shooting club and or participate in so many shoots a year you can buy semi automatic WWII vintage weapons on the cheap from no less than Uncle Sam. These are M1-Garands. They go for about half the price of the gun shop variety as our government, believe it or not, wanted its citizenry to be armed and trained how to use them. This is the link: http://www.odcmp.com/Services/Rifles/m1garand.htm

  4. #4 by Marshall on November 22, 2007 - 8:26 am

    Thanks Jeremy, that was excellent. From a political standpoint this is a sure fire way to allow Republicans to keep winning elections. Tell people that the government is going to come in and take our guns. Yea that is sure a way to win the voters over. As far as I am concerned we might have all needed our guns with this administration so I am going to keep enjoying my rights.

  5. #5 by glenn on November 22, 2007 - 9:59 am

    Perhaps you can aim your progressive laser beam on this incident in
    Utah as to why of a personal right to own firearms was written implicitly into the Constitution.

    /infowars.net/articles/november2007/211107Tased.htm

    Looks like the Staties are going to pay for this one.

  6. #6 by glenn on November 22, 2007 - 9:59 am

    infowars.net/articles/november2007/211107Tased.htm

  7. #7 by glenn on November 22, 2007 - 11:33 am

    and if they don’t pay…? Well then Utah, there you are.

  8. #8 by glenn on November 22, 2007 - 7:17 pm

    Think I need to meet this woman. Has she been invited to SLC? She has expressed what has been called radical from a safe perspective, and is about to mainstream the Constitutional Freedom Movement.

    Support what you don’t like in our Constitution, until it needs to work for you. It shall remain the Law of the Land, or this land is something I never swore to.

    Might the tyrants please be afraid of the Big Bad Wolf? Let the People back it up. Stand fast before it, tyranny, it is the only thing it knows to fear.

    /www.alternet.org/story/68399/?page=1

(will not be published)


%d bloggers like this: